“The First Amendment and the Right to Record Police,” a joint documentary project with First Amendment Watch and The Free Speech Center, recently won a Silver Telly Award — an international television award — for Best Short Documentary in the Non-Broadcast category.
First Amendment Watch and the Free Speech Center at Middle Tennessee State University have partnered to create an in-depth video guide focused on the rights of those who wish to photograph or record video in public places like streets, sidewalks, and parks.
“Eight federal appeals courts have recognized that videos of police officers working in public serve the critical First Amendment value of helping to hold public officials accountable for their actions,” said Stephen D. Solomon, New York University journalism professor and editor of First Amendment Watch.
Executive Producer: Stephen Solomon, First Amendment Watch at NYU
Executive Producer: Sally Stapleton, First Amendment Watch at NYU
Executive Producer: Ken Paulson, Free Speech Center at Middle Tennessee Univ.
Producer: Sally Stapleton, First Amendment Watch at NYU
Producer: Steve Boyle, SkidMedia | SkidFilms Inc.
Associate Producer: Emily Flood, Free Speech Center at Middle Tennessee Univ.
Director / Editor: Steve Boyle, SkidMedia | SkidFilms Inc.
Scriptwriter: Stephen Solomon, First Amendment Watch at NYU
Scriptwriter: Sally Stapleton, First Amendment Watch at NYU
Scriptwriter: Ken Paulson, Free Speech Center at Middle Tennessee Univ.
Narrator: Steve Boyle, SkidMedia | SkidFilms Inc.
Narrator: Jonell Mosser
Trump sues Washington Post for $3.78B for defamation
- Susanna Granieri, “Trump’s Media Company Sues The Washington Post for Defamation, Requests $3.78B in Damages,” First Amendment Watch (May 22)
Donald Trump’s media company, which owns his Twitter-like platform Truth Social, sued The Washington Post May 20 for $3.78 billion in damages, claiming a recently published article on the media company’s finances is defamatory.
Trump Media & Technology Group (TMTG) filed the complaint in Florida’s Twelfth Judicial Circuit in Sarasota, and alleged that the Post’s May 13 article, “Trust linked to porn-friendly bank could gain a stake in Trump’s Truth Social,” contains false statements about TMTG and posed an “existential threat” to the company.
The lawsuit claims that the Post’s article was done “in concert” with a TMTG employee who was terminated, and described the article as “an egregious hit piece that falsely accused TMTG of securities fraud and other wrongdoing.” It also states that the article “exposed” the company to “public ridicule, contempt and distrust, and injured TMTG’s business and reputation.”
[ . . . ]
The lawsuit claims the Post acted with actual malice because it published “fabricated facts about securities fraud, and published and republished Statements that were a product of their imagination;” it was aware of “bad blood” between TMTG and Wilkerson; it “deliberately and recklessly conveyed a false narrative” to “sensationalize” its reporting and “injure” TMTG; it published the article with “the intent to inflict injury;” it “harbored extreme bias, ill-will and desire to inflict harm on TMTG through knowing falsehoods.”
Montana law bans TikTok
- Haleluya Hadero, “Mont. becomes 1st state to ban TikTok; enforcement questionable,” The Free Speech Center (May 19)
Montana Gov. Greg Gianforte on May 17 signed into law a first-of-its kind bill that makes it illegal for TikTok to operate in the state, setting up a potential legal fight with the company amid a slew of questions over whether the state can even enforce the law.
The new rules in Montana will have more far-reaching effects than TikTok bans already in place on government-issued devices in nearly half the states and the U.S. federal government. There are 200,000 TikTok users in Montana as well as 6,000 businesses that use the video-sharing platform, according to company spokesman Jamal Brown.
- Text of Montana Senate Bill 419, “An Act Banning TikTok in Montana”
- Drew Harwell, “TikTok sues Montana to block ban, citing First Amendment,” The Washington Post (May 22)
The lawsuit seeks to overturn the law, which Gov. Greg Gianforte (R) signed last week and is set to go into effect Jan. 1. The legal challenge will probably delay the measure.
Gianforte said the law would ‘protect Montanans’ private data and sensitive personal information from being harvested by the Chinese Communist Party.’ Neither Montana officials nor the U.S. government has supplied evidence supporting that claim.
In a statement, TikTok spokeswoman Brooke Oberwetter said that the company is “challenging Montana’s unconstitutional TikTok ban to protect our business and the hundreds of thousands of TikTok users in Montana” and that it believes its case “will prevail based on an exceedingly strong set of precedents and facts.”
The lawsuit cited TikTok data from March to estimate that roughly 110,000 monthly active users accessed TikTok around Missoula, the home of the public University of Montana and the second-largest metropolitan area in the state.
ALA report: Record number of book bans
- Press Release, “American Library Association reports record number of demands to censor library books and materials in 2022,” American Library Association (March 22)
The American Library Association (ALA) today released new data documenting* 1,269 demands to censor library books and resources in 2022, the highest number of attempted book bans since ALA began compiling data about censorship in libraries more than 20 years ago. The unparalleled number of reported book challenges in 2022 nearly doubles the 729 challenges reported in 2021.
A record 2,571 unique titles were targeted for censorship, a 38% increase from the 1,858 unique titles targeted for censorship in 2021. Of those titles, the vast majority were written by or about members of the LGBTQIA+ community and people of color.
Of the reported book challenges, 58% targeted books and materials in school libraries, classroom libraries or school curricula; 41% of book challenges targeted materials in public libraries.
The prevalent use of lists of books compiled by organized censorship groups contributed significantly to the skyrocketing number of challenges and the frequency with which each title was challenged. Of the overall number of books challenged, 90% were part of attempts to censor multiple titles. Of the books challenged, 40% were in cases involving 100 or more books
Prior to 2021, the vast majority of challenges to library resources only sought to remove or restrict access to a single book.
“A book challenge is a demand to remove a book from a library’s collection so that no one else can read it. Overwhelmingly, we’re seeing these challenges come from organized censorship groups that target local library board meetings to demand removal of a long list of books they share on social media,” said Deborah Caldwell-Stone, director of ALA’s Office for Intellectual Freedom. “Their aim is to suppress the voices of those traditionally excluded from our nation’s conversations, such as people in the LGBTQIA+ community or people of color.”
“Each attempt to ban a book by one of these groups represents a direct attack on every person’s constitutionally protected right to freely choose what books to read and what ideas to explore,” said Caldwell-Stone. “The choice of what to read must be left to the reader or, in the case of children, to parents. That choice does not belong to self-appointed book police.”
[ . . . ]
ALA President Lessa Kanani'opua Pelayo-Lozada said, “Every day professional librarians sit down with parents to thoughtfully determine what reading material is best suited for their child’s needs. Now, many library workers face threats to their employment, their personal safety, and in some cases, threats of prosecution for providing books to youth they and their parents want to read.
“ALA began documenting the book challenges reported to us over two decades ago because we want to shine a light on the threat of censorship facing readers and entire communities. Book challenges distract from the core mission of libraries: to provide access to information. That includes access to information and services for learners of all ages, homeschooling parents, job seekers, new computer users, budding readers, entrepreneurs, veterans, tax filers and amateur genealogists — just to name a few.
“While a vocal minority stokes the flames of controversy around books, the vast majority of people across the nation are using life-changing services that public and school libraries offer. Our nation cannot afford to lose the library workers who lift up their communities and safeguard our First Amendment freedom to read.”
Polling conducted by bipartisan research firms in 2022 showed that voters across the political spectrum oppose efforts to remove books from libraries and have confidence in libraries to make good decisions about their collections. To galvanize support for libraries and respond to the surge in book challenges and other efforts to suppress access to information, in 2022 ALA launched Unite Against Book Bans, a national initiative to empower readers everywhere to stand together in the fight against censorship. The coalition will mark its first anniversary during National Library Week.
- Gabriela Martínez, “Pennsylvania schools are removing books from libraries. Here’s what the Supreme Court has said about book bans,” WITF (May 23)
Texas bill seeks to outlaw sexual orientation or gender identity instruction
- Elizabeth Nolan Brown, “Texas Bill Would Ban School Instruction, Guidance, or Activities Related to Sexual Orientation,” Reason (May 22)
A Texas education bill would outlaw ‘instruction, guidance, activities, or programming regarding sexual orientation or gender identity to students enrolled in prekindergarten through 12th grade.’ The proposal comes in the form of a substitution to H.B. 890, a narrower bill related to parental rights in public schools.
Critics are portraying it as an even more extreme version of a Florida proposal that opponents dubbed the ‘don't say gay’ law, one that could even ban student LGBTQ clubs in Texas high schools.
H.B. 890 passed the Texas House of Representatives unanimously in April and is now being considered in the state's Senate. As introduced, the bill laid out a process by which school ‘personnel, students or the parents or guardians of students, and members of the public may obtain a hearing from the district administrators and the board regarding a complaint.’ It stated that this process must include an initial administrative hearing and the opportunity to appeal an initial administrative decision, and that complaints must be resolved in a timely manner.
Mississippi judge denies transgender student request to attend graduation in dress and heels
- Isabel Rosales, Paradise Afshar & Jaide Garcia, “A transgender girl misses her high school graduation after Mississippi judge denies emergency plea to permit her to go in a dress and heels,” CNN (May 22)
A transgender teen in Mississippi missed her high school graduation after a federal judge denied a motion requesting that she be allowed to wear a dress and heels under her robe.
The 17-year-old, identified in court documents by her initials “L.B.,” did not attend her Gulfport high school graduation, according to the American Civil Liberties Union of Mississippi. She opted to miss the ceremony when she was told she had to wear boy’s clothes to attend, telling CNN she would “rather stand up for what’s right than be humiliated.”
The family has asked for the teen’s full name to be withheld for privacy and safety reasons.
On May 9, less than two weeks before graduation, L.B. says she was pulled into Harrison Central High School Principal Kelly Fuller’s office and asked what she was going to wear for graduation.
“I told her I was going to wear a white dress, then she told me I was not going to be allowed to wear a dress, and I would have to wear boy clothes,” L.B. said. “And she stated that the Superintendent called her asking about what students would wear to graduation.”
[ . . . ]
L.B. says she has attended Harrison Central High School as a girl for the past four years. She attended prom wearing a blue sparkly dress without any objection from the school. “I was being me, and I felt very accepted at the time,” she said. “I felt very understood. I felt that I had a great support system at that school.”
- ACLU complaint in Brown v. Harrison County School District
Fifth-grade Florida teacher under investigation for showing animated Disney movie with gay character
- Melissa Alonso & Isabel Rosales, “Florida teacher says she is under investigation after showing 5th-grade class Disney movie with gay character,” CNN (May 15)
A fifth-grade teacher said she is being investigated by the Florida Department of Education after she showed her students “Strange World,” a 2022 animated Disney movie featuring a character who is biracial and gay.
Jenna Barbee, a teacher in Hernando County’s Winding Waters K-8 school, told her story in a widely viewed TikTok post over the weekend.
“I am the teacher that’s under investigation with the Florida Department of Education for indoctrination for showing a Disney movie,” she said.
229k sign petition to urge CNN to stop giving Trump free airtime
- “CNN: Stop Giving Trump Free Airtime!,” MoveOn (2023)
Donald Trump knows how to manipulate the media into covering his speeches live and doing exclusive events — giving him valuable free airtime to spew vitriol, lies, and dangerous disinformation. News networks need to stop showing his speeches live.
Why is this important?
When Donald Trump announced he was running for president again. We saw that the news media learned nothing from the last go-round about how to avoid his toxic manipulations. CNN covered his speech live — essentially giving him free rein to dominate airwaves and reach viewers with his narcissistic brand of conspiracy theories and abuse.
And he doesn't have to pay a dime for all this free advertising.
The night Trump returned to Mar-a-Lago after turning himself in on criminal charges, CNN ran Trump's speech live for 23 minutes of the 24-minute speech. The speech, which was supposedly a response to his arraignment, was actually a campaign rally, full of his usual attacks, lies, and bluster. Meanwhile, MSNBC, NPR, and other mainstream media networks refused to air the speech.
All news networks have a responsibility to fact-check Trump's lies, provide context and journalistic skepticism to his claims, and apply an editorial lens to when to give him airtime.
In 2016, it was estimated that the major news networks gave Trump $2 billion in free airtime. We can't make that mistake again.
News networks don't need to show his speeches live. They can cover them as news — wait until he's done, show clips within context, offer fact-checking, and stop amplifying his abusive attacks, bigoted insults, QAnon-level conspiracies, and dangerous deceptions.
Trump sought to overturn and election and helped incite a deadly insurrection. We know his words carry weight. You can cover him as news — but don't serve as his personal broadcasting network.
Stop covering him live. Fact-check his statements. And don't fall into the trap of giving him free airtime.
Trio requests CHAT GPT First Amendment analysis of the right of Nazis to march down public streets
- The following Chat GPT prompts were offered by Evan Rohde, Wendy Herzog, and Stephen Rohde and the answers are set out below:
Write a legal brief explaining why the first amendment protects the right of Nazis to march down a main street in a US city. Please write in markdown format so it’s clearer to read. Please add citations and links where appropriate.
# Legal Brief: Protection of First Amendment Rights for Nazis to March in a US City
## I. Introduction. This legal brief aims to demonstrate that the First Amendment of the United States Constitution protects the right of Nazis to march down a main street in a US city. The First Amendment guarantees the freedom of speech, which encompasses various forms of expression, including symbolic speech and controversial viewpoints. While the content of Nazi ideology is reprehensible and abhorrent, it is crucial to uphold the principles of free speech and the First Amendment to safeguard the democratic values upon which the United States was founded.
## II. The First Amendment and Freedom of Speech: The First Amendment of the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[^1] The freedom of speech protected by the First Amendment is not limited to popular or uncontroversial views. Instead, it extends to all forms of expression, including those that may be considered offensive, repugnant, or unpopular. The Supreme Court has repeatedly affirmed that the government may not restrict speech based on the viewpoint expressed.[^2] The principle of free speech is essential for fostering an open marketplace of ideas, facilitating public debate, and allowing individuals to challenge prevailing norms.
## III. Symbolic Speech and the First Amendment: The First Amendment also protects symbolic speech, which encompasses expressive conduct or actions that convey a particular message or viewpoint. Symbolic speech includes actions such as flag burning, wearing armbands, and engaging in peaceful protests or demonstrations.[^3] The Supreme Court has recognized that nonverbal forms of expression are entitled to the same protection as verbal expression, as they are a vital means of communication and self-expression.
## IV. Content-Based Restrictions and the Strict Scrutiny Test: The government may only restrict speech if it satisfies the strict scrutiny test, which requires the restriction to serve a compelling government interest and be narrowly tailored to achieve that interest.[^4] Content-based restrictions on speech, those that regulate speech based on the specific message conveyed, are subjected to the strictest scrutiny by the courts. Restricting the speech of Nazis based on the content of their message would constitute a content-based restriction. The Supreme Court has consistently held that the government cannot restrict speech merely because it is offensive or promotes hateful ideologies.[^5] Even though Nazi ideology is repugnant, it does not justify suppressing their speech or prohibiting them from expressing their views in a peaceful manner.
## V. The Public Forum Doctrine: Public streets and sidewalks are considered traditional public forums, where individuals enjoy robust protection for their right to free speech and assembly.[^6] The Supreme Court has recognized that public streets and sidewalks are vital spaces for the exercise of First Amendment rights, as they provide an avenue for the expression of diverse opinions and viewpoints. While the government may impose reasonable time, place, and manner restrictions on speech in public forums, such restrictions must be content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication.[^7] These restrictions must not be based on the specific content or viewpoint expressed.
## VI. Conclusion: The First Amendment's protection of free speech extends to all individuals, including Nazis, and encompasses the right to express offensive, controversial, or repugnant viewpoints. Content-based restrictions on speech are subjected to strict scrutiny, requiring a compelling government interest that is narrowly tailored to achieve that interest. Public streets and sidewalks are considered traditional public forums, where individuals enjoy robust protection for their First Amendment rights. While the views espoused by Nazis are deeply abhorrent, it is essential.
Redux: Volokh on Sedition Act
- Eugene Volokh, “The Federalists and the Sedition Act,” The Volokh Conspiracy (May 23)
Pinker on new Harvard faculty-led free speech council
- “Free speech 'has to have an ability to be scrutinized' argues Steve Pinker,” GBNews (May 14)
Steve Pinker, Professor of Psychology at Harvard University, discusses a new faculty-led organization at Harvard to defend academic freedom.
The New Yorker review of new book on NYT v. Sullivan
- Jeannie Suk Gersen, “The Dark Side of Defamation Law,” The New Yorker (May 22)
A new book, “Actual Malice” (California), by Samantha Barbas, a law professor and historian, unfurls the story of the case and reminds readers that the triumph of press freedom was an outgrowth of the civil-rights struggle. Versions of the story have been told before, perhaps most famously in Anthony Lewis’s “Make No Law,” more than three decades ago. Yet Barbas deftly employs archival sources — notably from the Times, from the Martin Luther King, Jr., papers, and from the Southern Christian Leadership Conference — to shed new light. Her book illuminates the effect of libel suits on journalists’ ability to cover the movement, the legal strategies used against those suits, and the impact of the case on the civil rights movement itself. A heroic narrative in which the litigation helped vanquish segregationists serves to underscore what Barbas calls the “centrality of freedom of speech to democracy.”
Flying Dog Brewery (free speech defender) sold to New York company
- Andrew Schotz, “New York company buying Flying Dog Brewery, will cease brewing in Frederick,” Alert (May 22)
Frederick’s Flying Dog Brewery is being sold to a New York company whose brands include Saranac and Utica Club, the companies announced Monday. The financial terms were not disclosed.
The new owner, Utica-based FX Matt Brewing Co., was founded in 1888 and is the fourth-oldest family brewery in the United States, Flying Dog said in a news release.
[ . . . ]
In an emailed statement to the News-Post on Monday, Lara L. Fritts, the executive director of economic and workforce development for Frederick County, wrote: “Flying Dog has grown here in Frederick County which has resulted in its acquisition by a larger brewery. While we are disappointed in the decision to close local operations, we understand the business case for consolidating operations with the new ownership. Frederick County Office of Economic Development is grateful that Flying Dog will keep a presence by investing in the County with a tap room and innovative brewhouse.”
Flying Dog has been known for its free speech advocacy, winning a six-year lawsuit against the Michigan Liquor Control Commission after it denied Flying Dog’s “Raging Bitch” beer on decency grounds.
- “Flying Dog Brewery prevails again: First Amendment victory over North Carolina Alcoholic Board,” First Amendment News 341 (May 26, 2022)
“We live in a world where people are coddled, messages are muddled and ideas are squashed in the name of political correctness. When the Thought Police closed in on us, we went to Federal court to defend our right to free speech and expression.” — Jim Caruso, CEO of Flying Dog Brewery
More in the news
- John Hilliard, “YouTubers film, insult public workers in towns across Mass. for self-declared ‘First Amendment audits’,” Boston Globe (May 23)
- Zach Greenberg, “University at Buffalo tramples First Amendment, threatens to derecognize dozens of student groups for affiliating with outside organizations,” FIRE (May 22)
- Brian Brittain, “US Supreme Court's Andy Warhol decision keeps ‘fair use’ questions alive,” Reuters (May 22)
- Eugene Volokh, “Race-Related Insulting Complaints to Supervisors in Public University and the First Amendment,” The Volokh Conspiracy (May 22)
- Patt Morrison, “Upton Sinclair arrested for reading the 1st Amendment,” Los Angeles Times (May 22)
- Kalvis Golde, “Former candidates say New Jersey’s “slogan statutes” violate the First Amendment,” SCOTUSblog (May 19)
- Amy Howe, “Supreme Court rules Twitter not liable for ISIS content,” SCOTUSblog (May 18)
- Kimberly Atkins Stohr, “DeSantis’s anti-woke laws can’t stand up to the First Amendment. They’re still dangerous,” Boston Globe (May 17)
- O’Connor-Ratcliff v. Garnier
- 303 Creative LLC v. Elenis (argued Dec. 5)
- Jack Daniel’s Properties, Inc. v. VIP Products LLC (argued March 22)
- United States v. Hansen (argued, March 27) (Volokh commentary here)
- Counterman v. Colorado (argued, April 19)
- Mazo v. Way
- Tingley v. Ferguson
- Frese v. Formella
- National Rifle Association of America v. Vullo
- Mobilize the Message v. Bonta
- Vidal v. Elster
- U.S. v. Hernandez-Calvillo
- Moody v. NetChoice, LLC
- NetChoice, LLC v. Moody
- Florida v. NetChoice
- Klein v. Oregon Bureau of Labor and Industries
- Novak v. City of Parma (cert. denied)
Immunity under Foreign Sovereign Immunities Act
- NSO Group Technologies Limited v. WhatsApp, Inc. (cert. denied)
Liability Anti-Terrorism Act
- Twitter v. Taamneh (held, 9-0 per Thomas, J.: SCOTUSblog: “Plaintiffs’ allegations that the social-media-company defendants aided and abetted ISIS in its terrorist attack on a nightclub in Istanbul, Turkey fail to state a claim under 18 U.S.C. § 2333(d)(2).”)
Section 230 immunity
- Gonzalez v. Google (held, 9-0, per curiam, SCOTUSblog: “The 9th Circuit’s judgment — which held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act — is vacated, and the case is remanded for reconsideration in light of the court’s decision in Twitter, Inc. v. Taamneh.”)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Mr. Collins.