The First Amendment doesn't guarantee you the rights you think it does; CNN, August 8, 2017

A.J. Willingham, CNN; The First Amendment doesn't guarantee you the rights you think it does

"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

That's it. That's the entirety of our Constitution's First Amendment, the central animus of our American way of life that gets dragged out every time someone's banned from Twitter.

There's a lot going on in those few sentences, and it's important to know when and how it applies to common situations -- and, equally as important, when it doesn't.

Let's look at some common First Amendment arguments; illuminated and debunked by a constitutional expert."

The Slants Win Supreme Court Battle Over Band's Name In Trademark Dispute; NPR, June 19, 2017

Bill Chappell, NPR; The Slants Win Supreme Court Battle Over Band's Name In Trademark Dispute

[Kip Currier: A big 8-0 U.S. Supreme Court decision for Asian American rock band The Slants today. I met The Slants at an April 27, 2017 event, hosted by Duquesne University's School of Law and Mary Pappert School of Music, discussing conflicting aspects of U.S. trademark law (specifically, the Lanham Act's provision addressing "disparaging trademarks") and the 1st Amendment and freedom of expression. Some photos I took at that event:]

"Members of the Asian-American rock band The Slants have the right to call themselves by a disparaging name, the Supreme Court says, in a ruling that could have broad impact on how the First Amendment is applied in other trademark cases."

How a rigid fair-use standard would harm free speech and fundamentally undermine the Internet; Los Angeles Times, June 1, 2017

Art Neill, Los Angeles Times; How a rigid fair-use standard would harm free speech and fundamentally undermine the Internet

"In a recent Times op-ed article, Jonathan Taplin of the USC Annenberg Innovation Lab claimed that an “ambiguous“ fair use definition is emboldening users of new technologies to challenge copyright infringement allegations, including takedown notices. He proposes rewriting fair use to limit reuses of audio or video clips to 30 seconds or less, a standard he mysteriously claims is “widely accepted.”

In fact, this is not a widely accepted standard, and weakening fair use in this way will not address copyright infringement concerns on the Internet. It would hurt the music, film and TV industries as much as it would hurt individual creators...

Fair use is inextricably linked to our 1st Amendment right to free speech. We are careful with fair use because it’s the primary way consumers, creators and innovators share new ideas. It’s a good thing, and it is worth protecting."

‘Hate speech is not protected by the First Amendment,’ Portland mayor says. He’s wrong.; Washington Post, May 30, 2017

Kristine Phillips, Washington Post; ‘Hate speech is not protected by the First Amendment,’ Portland mayor says. He’s wrong.

"Although the organizers of the rallies have a constitutional right to speak, “hate speech is not protected by the First Amendment,” Wheeler told reporters.

But history and precedent are not on Wheeler's side.

The Supreme Court has repeatedly ruled that hate speech, no matter how bigoted or offensive, is free speech.

Although certain forms of speech are not protected by the First Amendment, hate speech isn't one of them, Eugene Volokh, a law professor and free speech expert, wrote last month. For it to be banned, experts say, it must rise to the level of threat or harassment."

Fox News crew ‘watched in disbelief’ as Montana’s Greg Gianforte ‘slammed’ and ‘began punching’ reporter; Washington Post, May 25, 2017

Fred Barbash, Washington Post; Fox News crew ‘watched in disbelief’ as Montana’s Greg Gianforte ‘slammed’ and ‘began punching’ reporter

"The Gazette referenced an incident at a campaign event in which a Gianforte took questions from the audience, including a man who said:

“Our biggest enemy is the news media. How can we rein in the news media?”

The man then looked at the Ravalli Republic reporter sitting next to him and raised his hands as if he would like to wring his neck.

Gianforte smiled and pointed at the reporter.

“We have someone right here,” the candidate said. “It seems like there is more of us than there is of him.”

That and “other questionable interactions Gianforte had with reporters … must now be seen through a much more sinister lens,” the Gazette said. “What he passed off as a joke at the time now becomes much more serious.”

The Gianforte campaign, it added, “should be appalled” by its statement “that would seem to justify the fight when it said the Bozeman Republican had tussled with a ‘liberal journalist.’ How would the campaign have known the reporter’s political beliefs? And, is it suggesting that it’s acceptable to put your hands on a reporter if you believe their political views are different from yours?”

The Society of Professional Journalists denounced the alleged assault, saying “it is never acceptable to physically harm or arrest a journalist who is simply trying to do his or her job.”"

Our First Amendment test is here. We can’t afford to flunk it.; Washington Post, 11/13/16

Margaret Sullivan, Washington Post; Our First Amendment test is here. We can’t afford to flunk it. :

"For journalists, it’s writing and reporting aggressively and fearlessly, and being willing to fight for access. For citizens, it’s being well-informed, including subscribing to newspapers and supporting the best journalism. It’s helping to debunk and call out fake news. It’s donating to, or getting involved with, civil rights and media rights organizations. And it’s backing public officials committed to protecting free expression.

Americans certainly shouldn’t move to Canada, but they should heed the words of the Canadian songwriter Joni Mitchell: “Don’t it always seem to go, that you don’t know what you’ve got till it’s gone?”"

Donald Trump vs. a Free Press; New York Times, 10/13/16

Editorial Board, New York Times; Donald Trump vs. a Free Press:

"The Times is, of course, very familiar with threats of litigation by government officials and other public figures who oppose the paper’s reporting on them. It was New York Times v. Sullivan, the unanimous 1964 Supreme Court decision, that set forth the principle that promoting speech of public interest is foundational to a democracy, and therefore a newspaper would be protected from libel claims brought by public figures, even if it printed erroneous statements, as long as the newspaper did not know the statement was false, or recklessly disregard its truth or falsity.

In his opinion for the court, Justice William Brennan Jr. wrote that “public discussion is a political duty, and that this should be a fundamental principle of the American government.” Such discussion “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

In Donald Trump’s view, these principles shouldn’t exist."

U.S. Justice Department Defends Copyright Anti-Hacking Law as "Unquestionably Constitutional"; Hollywood Reporter, 9/30/16

Eriq Gardner, Hollywood Reporter; U.S. Justice Department Defends Copyright Anti-Hacking Law as "Unquestionably Constitutional" :

"The U.S. Department of Justice is demanding an end to a lawsuit that challenges the constitutionality of a law that prevents people from getting around the access restrictions on copyrighted works such as films, television shows and songs.

In July, the Electronic Frontier Foundation led the lawsuit that argues that the anti-circumvention provision of the Digital Millennium Copyright Act (Sec. 1201) inhibits free expression in violation of the First Amendment. The law allows for a triennial review where every three years the Librarian of Congress grants exemptions. For example, in the most recent review, the government made it legal to hack a smart TV to achieve interoperability and also allowed grade school teachers to circumvent access controls on DVDs for educational purposes."

Here's Why Software Patents Are in Peril After the Intellectual Ventures Ruling; Fortune, 10/3/16

Jeff John Roberts, Fortune; Here's Why Software Patents Are in Peril After the Intellectual Ventures Ruling:

"Software Patents as a Threat to Free Speech

Friday’s ruling is also significant because Judge Mayer eschews the insider baseball language that typically dominates patent law, and addresses patents in the broader context of technology and government monopolies.

Pointing out that intellectual property monopolies can limit free speech, Mayer notes that copyright law has built-in First Amendment protections such as “fair use” and that patent law must include similar safeguards. He suggests that the safeguard comes in the form of a part of the Patent Act, known as “Section 101,” which says some things—including abstract ideas—simply can’t be patented in the first place."

Supreme Court Takes Up Case That Could Affect Redskins Trademark; NPR, 9/29/16

Eyder Peralta, NPR; Supreme Court Takes Up Case That Could Affect Redskins Trademark:

"The Supreme Court has decided to hear a case that might decide whether the government can deny Washington's NFL team a trademark because it has deemed the team name is offensive.

The court granted certiorari on Lee V. Tam. If you remember, The Slants, an Asian-American rock band, sued the U.S. Patent and Trademark Office because it refused to trademark their name saying it proved offensive.

In December of last year, the Court of Appeals for the Federal Circuit decided that the band's name was private speech and therefore protected by the First Amendment."

Do menacing comments about Hillary Clinton cross the First Amendment line?; Washington Post, 8/10/16

James Hoefler, Washington Post; Do menacing comments about Hillary Clinton cross the First Amendment line? :

"Did Trump cross the First Amendment line with his comments? We look for guidance to the Supreme Court’s most recent case to test the limits of this sort of speech: Brandenburg v. Ohio. In that 1969 decision, the court set forth a three-part test to determine the contours of First Amendment sanctuary: Was criminal action (1) intended, (2) imminent and (3) likely?...

We all celebrate the First Amendment and its broad protections of speech, as egregious and unpresidential as that language might sometimes seem. But all political liberties come with limits, and a case could be made that Trump’s brutal entreaties have exceeded that limit. Should he continue to exhort violence at his rallies, it may be his own legal defense needs, rather than those of his followers, that he will need to worry about."

Fighting for Free Speech on America’s Campuses; New York Times, 8/1/16

Cecilia Capuzzi Simon, New York Times; Fighting for Free Speech on America’s Campuses:

"The free-speech watchdog FIRE is a familiar irritant to college administrators, but until this past year, the rest of the country wasn’t paying much attention. An “epic” year is what Greg Lukianoff, president and chief executive of the Foundation for Individual Rights in Education, calls it. Colleges and universities were forced to publicly and painfully deal with a confluence of national issues — race, sexual assault, gay rights, politically correct speech — mirrored and magnified in the microcosm of campus life.

Finally, FIRE’s activism was syncing with the zeitgeist, in part because of Mr. Lukianoff’s role in framing the public interpretation of the campus turmoil. It was Mr. Lukianoff who made the argument, in a widely read opinion piece in The Atlantic, that today’s students are “coddled” and demanding protections against offensive words and ideas at the expense of intellectual rigor and the First Amendment. It was also Mr. Lukianoff who happened to be at Yale during the infamous Halloween costume shout-down of Prof. Nicholas Christakis, and whose viral video of it appeared to vividly illustrate his observations that many college students don’t understand what freedom of speech is, and who it applies to.

Freedom of speech, he said, is not an “intuitive” concept, and Americans take its benefits for granted. “I think everyone understands that they have a free-speech right, but they don’t necessarily understand why you should have one,” he said, sitting in his eighth-floor office in FIRE’s satellite space in Washington."

The right response to Donald Trump? A media blackout.; Washington Post, 6/14/16

Dana Milbank, Washington Post; The right response to Donald Trump? A media blackout. :

"Donald Trump’s ban of Post journalists has left other news outlets with a stark choice: your ratings or your responsibility as journalists in a free society?

Trump’s announcement that he is barring Post journalists from his events follows similar bans he put on reporters from Politico, Huffington Post, BuzzFeed, Gawker, Foreign Policy, Fusion, Univision, Mother Jones, the New Hampshire Union Leader, the Des Moines Register and the Daily Beast. Trump goons have been known to kick out undesirable reporters at Trump events.

For those journalists and media executives who still don’t share the view of Post Executive Editor Martin Baron that Trump’s action “is nothing less than a repudiation of the role of a free and independent press,” it won’t be long before Trump comes for you, too.

Earlier this year, Trump said he would “open up” libel laws — in other words, dispense with the First Amendment — to make it easier for him to sue news outlets. He has suggested that, if president, he would use antitrust laws to harass Amazon founder Jeff Bezos, who owns The Post. And longtime Trump adviser Roger Stone has proposed that a President Trump seek retribution against CNN: “Turn off their FCC license.”

This goes beyond even Nixonian hostility."

What Silicon Valley's billionaires don't understand about the first amendment; Guardian, 5/27/16

Nellie Bowles, Guardian; What Silicon Valley's billionaires don't understand about the first amendment:

"No major American cultural force is more opposed to examination and more active in suppressing it today than Silicon Valley. So when it was revealed this week that Facebook board member Peter Thiel had been secretly bankrolling a lawsuit to inflict financial ruin on the news and gossip site Gawker, Silicon Valley cheered...

Each of these investors – and many of those writing in a wave of local support for Thiel – add caveats that they’re happy to see “clickbait” or “gossip” journalists suffer but that they fully support “real” journalists. As Khosla made clear by putting the New York Times on the side of clickbait, many Silicon Valley investors see most press as suspect.

After six years as a reporter in Silicon Valley, I’ve found that a tech mogul will generally call anything unflattering I write “clickbait” and anything flattering “finally some real journalism”."

USPTO appeals to Supreme Court for ruling on racially tinged trademarks; Ars Technica, 4/22/16

Joe Mullin, Ars Technica; USPTO appeals to Supreme Court for ruling on racially tinged trademarks:

"In December, a court case brought by Portland-based Asian American rock band "The Slants" led to what could be a major change in US trademark law. The US Court of Appeals for the Federal Circuit overruled the US Patent and Trademark Office, which had refused to give the band a trademark, citing a law barring "disparaging" marks.

The battle isn't quite over, though. Patent Office lawyers have appealed to the Supreme Court, asking them to consider the case. If the Supreme Court takes up the case and reverses the Federal Circuit—something the high court has not hesitated to do in recent patent cases—the USPTO will retain its ability to quash disparaging trademarks.

Either way, the results of the case will have repercussions for other owners of controversial trademarks—most notably, the Washington Redskins. The football team was stripped of its trademark rights after years of litigation but is continuing its fight at the US Court of Appeals for the 4th Circuit."

Georgia Governor Vetoes North Carolina-Style “Religious Liberty” Bill; Slate.com, 3/28/16

Mark Joseph Stern, Slate.com; Georgia Governor Vetoes North Carolina-Style “Religious Liberty” Bill:

"In his Monday address, Deal sent a very clear message to the legislature’s anti-LGBT agitators: Your prejudice does not belong in our state’s laws. “HB757 doesn't reflect the character of our state or the character of our people,” Deal declared, explaining that the law is also completely unnecessary: “We do not have to discriminate against anyone to protect the faith-based community in Georgia.” Denouncing the hypocrisy of the bill’s advocates, Deal noted wryly, “I find it ironic that some in the religious community look to government to secure religious rights.” He also explained that “it’s difficult to legislate on something that’s best left to the First Amendment”—music to the ears of civil libertarians, who have long pointed out that the Free Exercise Clause already guarantees religious liberty for all.

“This is about the character of our state and our people,” Deal concluded. “Georgia is a welcoming state full of kind and generous people.” By vetoing HB757, Deal will help to maintain those values of tolerance."

Lawmaker: Backlash on Reporter Registry Bill Made Point; Associated Press via New York Times, 1/25/16

Associated Press via New York Times; Lawmaker: Backlash on Reporter Registry Bill Made Point:

"The South Carolina legislator whose journalism registry proposal touched off a media firestorm said Monday he never actually wanted to require reporters to register with the state, but the instant backlash made his point.

By "immediately screaming First Amendment," the media reacted to his bill exactly as he expected, Rep. Mike Pitts told The Associated Press.

The retired law enforcement officer said he mirrored the state's concealed weapon permit law in proposing a "responsible journalism registry," substituting language he found in journalistic associations' ethics codes.

"Do I really want to register reporters? No. I don't want to register guns or pens. I'd prefer to have a lot less government," said Pitts, R-Laurens.

But he did want to spark discussion on what he calls media bias in treating free speech rights under the First Amendment as more sacrosanct than gun rights under the Second Amendment."

Ruling Could Help Washington Redskins in Trademark Case; New York Times, 12/22/15

Richard Sandomir, New York Times; Ruling Could Help Washington Redskins in Trademark Case:

"The United States Court of Appeals for the Federal Circuit in Washington made the ruling in a case involving an Asian-American dance-rock band that sought to register a trademark for its provocative name, the Slants. The court said the First Amendment “forbids government regulators to deny registration because they find the speech likely to offend others.”

Writing for the majority, Kimberly A. Moore, a judge on the appeals court, said: “It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys.”...

Still, Tuesday’s ruling was considered a major one in trademark law — the striking down of a provision of the nearly 70-year-old Lanham Act that deals with disparaging or offensive trademarks.

“The majority opinion is a very broad rejection of the proposition that the federal government can refuse registration or use of a trademark based on whether certain groups find the mark to be disparaging,” said Jeremy Sheff, a law professor at St. John’s University School of Law who specializes in intellectual property. “It was exactly on that basis that the Redskins’ marks were canceled.”

Whatever happens in the appeals court to the Redskins’ registered trademarks, the team’s use of its name is not in jeopardy. Although it symbolizes racism and intolerance to some, and has inspired groups to demand that it be replaced, the Redskins’ owner, Daniel Snyder, has vowed never to drop it. He has fought a public battle to prove the name does not offend all Native Americans. And he has the backing of the N.F.L., which has been paying the costs of defending the trademarks."