Tag: fires

  • Free speech advocates rally to support FIRE’s federal appeal to defend advocacy in public parks

    Free speech advocates rally to support FIRE’s federal appeal to defend advocacy in public parks

    Protesting in public parks is as American as apple pie. It’s at the heart of our First Amendment — and one of our nation’s most time-honored principles. That right does not disappear merely because a private entity operates the public park on the government’s behalf. 

    That’s why FIRE and the Law and Religion Clinic at the University of Texas School of Law are appealing a district court ruling that weakens this First Amendment right. And we are proud to be backed by a broad coalition of prominent organizations as “friends of the court.” 

    Here’s what happened. Several years ago, animal welfare advocates Daraius Dubash and Dr. Faraz Harsini took to Houston’s largest public park to raise awareness about the harms of industrialized farming. For Dubash, this activism is rooted in his Vedantic Hindu faith, which compels him to promote the teaching of ahimsa, or nonviolence. To communicate their message, Dubash and Harsini serve as co-organizers for an international nonprofit animal-rights group. Their signature event involves volunteers showing muted documentary footage of farming practices to passersby, while others remain available to answer questions.

    Dubash and Harsini’s right to peacefully advocate on this issue in a public park is beyond dispute. But on three separate occasions, the public park’s private management ordered them to leave. The fourth time, park management had Houston police arrest Dubash for criminal trespass and banned them both from showing their video footage in the park in the future. Why? Because the park’s private managers and city police deemed their message “offensive.”

    With the help of FIRE and the Law and Religion Clinic, Dubash and Harsini filed suit in 2023 against the City of Houston, the park management corporation, its then-president, and the arresting officers. But in September, 2024, the U.S. District Court for the Southern District of Texas dismissed their claims, ruling that none of the defendants were responsible for violating Dubash and Harsini’s constitutional rights in a public park. 

    We disagree. 

    FIRE and the Clinic appealed to the Fifth Circuit, arguing that the ruling effectively lets the government bypass the First Amendment by delegating the management of public spaces to private organizations. And the court’s limited interpretation of governmental liability would make it nearly impossible for anyone to challenge violation of their constitutional rights by municipalities or law enforcement. 

    Last week, 12 prominent organizations from across the ideological spectrum filed nine amicus curiae briefs in support of Dubash and Harsini:

     The ACLU of Texas argues the park management company was acting as a state actor and public-private partnerships “cannot serve as an end run around the First Amendment.” The brief also argues the district court erred by failing to hold the arresting officers accountable based on their “mistaken belief” that the park was private. As the brief explains, probable-cause findings must be based on “objective facts and circumstances rather than subjective beliefs.”

    Young America’s Foundation, Hamilton Lincoln Law Institute, and Advancing American Freedom explain that Houston cannot bypass its duty to protect free speech in its public spaces by granting oversight authority to a private third party. The brief also emphasizes the sweeping implications of the district court’s decision, including in the academic context where state universities are increasingly attempting to evade First Amendment protections by outsourcing park management to nominally private entities like student governments.

    Liberty Justice Center argues the district court’s decision “blurs the line between state and private actors,” allowing Houston to “contract out of its constitutional obligations.” We could not agree more.

     The Center for American Liberty, in a brief submitted through Reeves Law LLC, argues that maintaining a public park is a traditional and exclusive government function, with public parks serving “as public forums for the expression of speech,” whether or not they are managed by a private entity.

     The National Press Photographers Association, in a brief submitted through the First Amendment Clinic at Southern Methodist University Dedman School of Law, explains how the district court’s ruling “threatens the sanctity of the spaces where speech is deserving of the highest protection.”

     Law Enforcement Action Partnership and the National Police Accountability Project explain that accountability for law enforcement officers and municipalities is crucial to preserving public confidence in the police and the government, and that failing to hold police officers accountable “undermines public trust in law enforcement.” The brief also argues that municipalities should know their police officers “need training and guidance to appropriately respond” to peaceful expressive activity, and failing to provide that training is sufficient to establish municipal liability.

    Protect the First Foundation, in a brief submitted through the Religious Freedom Clinic at Harvard Law School and Schaerr Jaffe LLP, highlights that Dubash was motivated to proselytize nonviolence by his deeply held religious beliefs, and describes the long history and tradition of public proselytization, from the persecution of religious minorities in the colonies through the legal protections established by First Amendment jurisprudence.

    The Hindu American Foundation, in a brief submitted through Jackson Walker LLP, explains that Dubash’s religious motivation to advocate for nonviolence towards animals is consistent with Hindu teachings. The brief also argues that his “arrest, detention, and the ongoing prohibition on his method of proselytizing” do not pass constitutional muster.

    The American Hindu Coalition, in a brief submitted through the Free Exercise Clinic at Yale Law School, emphasizes the history of public parks and streets as centers of religious activity, how marginalized faiths rely on these spaces to exercise their faith, and that Dubash’s activism is rooted in his religious beliefs.

    Our clients and their counsel are grateful for the support of this impressive and diverse amicus coalition. This case will play a critical role in protecting the rights of other protesters and religious minorities to engage in protected expression as guaranteed under the First Amendment.

    Source link

  • The National Institutes of Health shouldn’t use FIRE’s College Free Speech Rankings to allocate research funding — here’s what they should do instead

    The National Institutes of Health shouldn’t use FIRE’s College Free Speech Rankings to allocate research funding — here’s what they should do instead

    In December, The Wall Street Journal reported:

    [President-elect Donald Trump’s nominee to lead the National Institutes of Health] Dr. Jay Bhattacharya […] is considering a plan to link a university’s likelihood of receiving research grants to some ranking or measure of academic freedom on campus, people familiar with his thinking said. […] He isn’t yet sure how to measure academic freedom, but he has looked at how a nonprofit called Foundation for Individual Rights in Education scores universities in its freedom-of-speech rankings, a person familiar with his thinking said.

    We believe in and stand by the importance of the College Free Speech Rankings. More attention to the deleterious effect restrictions on free speech and academic freedom have on research at our universities is desperately needed, so hearing that they are being considered as a guidepost for NIH grantmaking is heartening. Dr. Bhattacharya’s own right to academic freedom was challenged by his Stanford University colleagues, so his concerns about its effect on NIH’s grants is understandable.

    However, our College Free Speech Rankings are not the right tool for this particular job. They were designed with a specific purpose in mind — to help students and parents find campuses where students are both free and comfortable expressing themselves. They were not intended to evaluate the climate for conducting academic research on individual campuses and are a bad fit for that purpose. 

    While the rankings assess speech codes that apply to students, the rankings do not currently assess policies pertaining to the academic freedom rights and research conduct of professors, who are the primary recipients of NIH grants. Nor do the rankings assess faculty sentiment about their campus climates. It would be a mistake to use the rankings beyond their intended purpose — and, if the rankings were used to deny funding for important research that would in fact be properly conducted, that mistake would be extremely costly.

    FIRE instead proposes three ways that would be more appropriate for NIH to use its considerable power to improve academic freedom on campus and ensure research is conducted in an environment most conducive to finding the most accurate results.

    1. Use grant agreements to safeguard academic freedom as a strong contractual right. 
    2. Encourage open data practices to promote research integrity.
    3. Incentivize universities to study their campus climates for academic freedom.

    Why should the National Institutes of Health care about academic freedom at all?

    The pursuit of truth demands that researchers be able to follow the science wherever it leads, without fear, favor, or external interference. To ensure that is the case, NIH has a strong interest in ensuring academic freedom rights are inviolable. 

    As a steward of considerable taxpayer money, NIH has an obligation to ensure it spends its funds on high-quality research free from censorship or other interference from politicians or college and university administrators.

    Why the National Institutes of Health shouldn’t use FIRE’s College Free Speech Rankings to decide where to send funds

    FIRE’s College Free Speech Rankings (CFSR) were never intended for use in determining research spending. As such, it has a number of design features that make it ill-suited to that purpose, either in its totality or through its constituent parts.

    Firstly, like the U.S. News & World Report college rankings, a key reason for the creation of the CFSRs was to provide information to prospective undergraduate students and their parents. As such, it heavily emphasizes students’ perceptions of the campus climate over the perceptions of faculty or researchers. In line with that student focus, our attitude and climate components are based on a survey of undergraduates. Additionally, the speech policies that we evaluate and incorporate into the rankings are those that affect students. We do not evaluate policies that affect faculty and researchers, which are often different and would be of greater relevance to deciding research funding. While it makes sense that there may be some correlation, we have no way of knowing whether or the degree to which that might be true.

    Secondly, for the component that most directly implicates the academic freedom of faculty, we penalize schools for attempts to sanction scholars for their protected speech, as tracked in our Scholars Under Fire database. While our Scholars Under Fire database provides excellent datapoints for understanding the climate at a university, it does not function as a systematic proxy for assessing academic freedom on a given campus as a whole. As one example, a university with relatively strong protection for academic freedom may have vocal professors with unpopular viewpoints that draw condemnation and calls for sanction that could hurt its ranking, while a climate where professors feel too afraid to voice controversial opinions could draw relatively few calls for sanction and thus enjoy a higher ranking. This shortcoming is mitigated when considered alongside the rest of our rankings components, but as discussed above, those other components mostly concern students rather than faculty.

    Thirdly, using CFSR to determine NIH funding could — counterintuitively — be abused by vigilante censors. Because we penalize schools for attempted and successful shoutdowns, the possibility of a loss of NIH funding could incentivize activists who want leverage over a university to disrupt as many events as possible in order to negatively influence its ranking, and thus its funding prospects. Even the threat of disruption could thus give censors undue power over a university administration that fears loss of funding.

    Finally, due to resource limitations, we do not rank all research universities. It would not be fair to deny funding to an unranked university or to fund an unranked university with a poor speech climate over a low-ranked university.

    Legal boundaries for the National Institutes of Health as it considers proposals for actions to protect academic freedom

    While NIH has considerable latitude to determine how it spends taxpayer money, as an arm of the government, the First Amendment places restrictions on how NIH may use that power. Notably, any solution must not penalize institutions for protected speech or scholarship by students or faculty unrelated to NIH granted projects. NIH could not, for example, require that a university quash protected protests as a criteria for eligibility, or deny a university eligibility because of controversial research undertaken by a scholar who does not work on NIH-funded research.

    While NIH can (and effectively must) consider the content of applications in determining what to fund, eligibility must be open to all regardless of viewpoint. Even were this not the case as a constitutional matter (and it is, very much so), it is important as a prudential matter. People would be understandably skeptical of, if not downright disbelieve, scientific results obtained through a grant process with an obvious ideological filter. Indeed, that is the root of much of the current skepticism over federally funded science, and the exact situation academic freedom is intended to avoid.

    Additionally, NIH cannot impose a political litmus test on an individual or an institution, or compel an institution or individual to take a position on political or scientific issues as a condition of grant funding.

    In other words, any solution to improve academic freedom:

    • Must be viewpoint neutral;
    • Must not impose an ideological or political litmus test; and
    • Must not penalize an institution for protected speech or scholarship by its scholars or students.

    Guidelines for the National Institutes of Health as it considers proposals for actions to protect academic freedom

    NIH should carefully tailor any solution to directly enhance academic freedom and to further NIH’s goal “to exemplify and promote the highest level of scientific integrity, public accountability, and social responsibility in the conduct of science.” Going beyond that purpose to touch on issues and policies that don’t directly affect the conduct of NIH grant-funded research may leave such a policy vulnerable to legal challenge.

    Any solution should, similarly, avoid using vague or politicized terms such as “wokeness” or “diversity, equity, and inclusion.” Doing so creates needless skepticism of the process and — as FIRE knows all too well — introduces uncertainty as professors and institutions parse what is and isn’t allowed.

    Enforcement mechanisms should be a function of contractual promises of academic freedom, rather than left to apathetic accreditors or the unbounded whims of bureaucrats on campus or officials in government, for several reasons. 

    Regarding accreditors, FIRE over the years has reported many violations of academic freedom to accreditors who require institutions to uphold academic freedom as a precondition for their accreditation. Up to now, the accreditors FIRE has contacted have shown themselves wholly uninterested in enforcing their academic freedom requirements.

    When it comes to administrators, FIRE has documented countless examples of campus administrators violating academic freedom, either due to politics, or because they put the rights of the professor second to the perceived interests of their institution.

    As for government actors, we have seen priorities and politics shift dramatically from one administration to the next. It would be best for everyone involved if NIH funding did not ping-pong between ideological poles as a function of each presidential election, as the Title IX regulations now do. Dramatic changes to how NIH conceives as academic freedom with every new political administration would only create uncertainty that is sure to further chill speech and research.

    While the courts have been decidedly imperfect protectors of academic freedom, they have a better record than accreditors, administrators, or partisan government officials in parsing protected conduct from unprotected conduct. And that will likely be even more true with a strong, unambiguous contractual promise of academic freedom. Speaking of which…

    The National Institutes of Health should condition grants of research funds on recipient institutions adopting a strong contractual promise of academic freedom for their faculty and researchers

    The most impactful change NIH could enact would be to require as a condition of eligibility that institutions adopt strong academic freedom commitments, such as the 1940 Statement of Principles on Academic Freedom and Tenure or similar, and make those commitments explicitly enforceable as a contractual right for their faculty members and researchers.

    The status quo for academic freedom is one where nearly every institution of higher education makes promises of academic freedom and freedom of expression to its students and faculty. Yet only at public universities, where the First Amendment applies, are these promises construed with any consistency as an enforceable legal right. 

    Private universities, when sued for violating their promises of free speech and academic freedom, frequently argue that those promises are purely aspirational and that they are not bound by them (often at the same time that they argue faculty and students are bound by the policies). 

    Too often, courts accept this and universities prevail despite the obvious hypocrisy. NIH could stop private universities’ attempts to have their cake and eat it too by requiring them to legally stand by the promises of academic freedom that they so readily abandon when it suits them.

    NIH could additionally require that this contractual promise come with standard due process protections for those filing grievances at their institution, including:

    • The right to bring an academic freedom grievance before an objective panel;
    • The right to present evidence;
    • The right to speedy resolution;
    • The right to written explanation of findings including facts and reasons; and
    • The right to appeal.

    If the professor exhausts these options, they may sue for breach of the contract. To reduce the burden of litigation, NIH could require that, if a faculty member prevails in a lawsuit over a violation of academic freedom, the violating institution would not be eligible for future NIH funding until they pay the legal fees of the aggrieved faculty member.

    NIH could also study violations of academic freedom by creating a system for those connected to NIH-funded research to report violations of academic freedom or scientific integrity.

    It would further be proper for NIH to require institutions to eliminate any political litmus tests, such as mandatory DEI statements, as a condition of grant eligibility.

    The National Institutes of Health can implement strong measures to protect transparency and integrity in science

    NIH could encourage open science and transparency principles by heavily favoring studies that are pre-registered. Additionally, to obviate concerns that scientific results may be suppressed or buried because they are unpopular or politically inconvenient, NIH could require its grant-funded research to make available data (with proper privacy safeguards) following the completion of the project. 

    To help deal with the perverse incentives that have created the replication crisis and undermined public trust in science, NIH could create impactful incentives for work on replications and the publication of null results.

    Finally, NIH could help prevent the abuse of Institutional Review Boards. When IRB review is appropriate for an NIH-funded project, NIH could require that review be limited to the standards laid out in the gold-standard Belmont Report. Additionally, it could create a reporting system for abuse of IRB processes to suppress, or delay beyond reasonable timeframes, ethical research, or violate academic freedom.

    The National Institutes of Health can incentivize study into campus climates for academic freedom

    As noted before, FIRE’s College Free Speech Rankings focus on students. Due to logistical and resource difficulties surveying faculty, our 2024 Faculty Report looking into many of the same issues took much longer and had to be limited in scope to 55 campuses, compared to the 250+ in the CFSR. This is to say there is a strong need for research to understand faculty views and experiences on academic freedom. After all, we cannot solve a problem until we understand it. To that effect, NIH should incentivize further study into faculty’s academic freedom.

    It is important to note that these studies should be informational and not used in a punitive manner, or to decide on NIH funding eligibility. This is because tying something as important as NIH funding to the results of the survey would create so significant an incentive to influence the results that the data would be impossible to trust. Even putting aside malicious interference by administrators and other faculty members, few faculty would be likely to give honest answers that imperiled institutional funding, knowing the resulting loss in funding might threaten their own jobs.

    Efforts to do these kinds of surveys in Wisconsin and Florida proved politically controversial, and at least initially, led to boycotts, which threatened to compromise the quality and reliability of the data. As such, it’s critical that any such survey be carried out in a way that maximizes trust, under the following principles:

    • Ideally, the administration of these surveys should be done by an unbiased third party — not the schools themselves, or NIH. This third party should include respected researchers across the political spectrum and no partisan slant.
    • The survey sample must be randomized and not opt-in.
    • The questionnaire must be made public beforehand, and every effort should be made for the questions to be worded without any overt partisanship or ideology that would reduce trust.

    Conclusion: With great power…

    FIRE has for the last two decades been America’s premier defender of free speech and academic freedom on campus. Following Frederick Douglass’s wise dictum, “I would unite with anybody to do right and with nobody to do wrong,” we’ve worked with Democrats, Republicans, and everyone in between (and beyond) to advance free speech and open inquiry, and we’ve criticized them in turn whenever they’ve threatened these values.

    With that sense of both opportunity and caution, we would be heartened if NIH used its considerable power wisely in an effort to improve scientific integrity and academic freedom. But if wielded recklessly, that same considerable power threatens to do immense damage to science in the process. 

    We stand ready to advise if called upon, but integrity demands that we correct the record if we believe our data is being used for a purpose to which it isn’t suited.

    Source link

  • OCR’s new Title VI letter: FIRE’s analysis and recommendations

    OCR’s new Title VI letter: FIRE’s analysis and recommendations

    Last week, the Department of Education’s Office for Civil Rights published a “Dear Colleague Letter” describing educational institutions’ obligations under federal anti-discrimination law and explaining how OCR will interpret Title VI and other legal authorities.

    Since FIRE is, at its core, an organization dedicated to free expression, we reviewed OCR’s letter through that lens. In this blog entry, we offer recommendations to OCR to ensure that it does not unlawfully censor educational institutions or pressure them to censor their students and faculty, and we ask for additional clarification of the letter. We also offer recommendations to colleges and universities to prevent overreactions to the DCL and to ensure they continue to protect student and faculty free speech rights.

    Overview of Title VI and OCR’s ‘Dear Colleague’ Letter

    Title VI prohibits educational institutions receiving federal funding from discriminating against individuals on the basis of race, color, or national origin. In Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC, the Supreme Court of the United States struck down racial preferences in college admissions for violating the Equal Protection Clause of the Fourteenth Amendment and Title VI of Civil Rights Act of 1964. In interpreting Title VI, the Equal Protection Clause, and the SSFA decision, OCR’s letter states:

    Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law [ . . .] Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.

    The letter also advises institutions to:

    1. Ensure that their policies and actions comply with existing civil rights law;
    2. Cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and
    3. Cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by the institutions in an effort to circumvent prohibited uses of race. 

    The letter warns that “[i]nstitutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding.”

    Irrespective of whether one agrees or disagrees with race-conscious policies, OCR is likely within its authority to prohibit institutions from providing or denying benefits to individuals based on their race. But while FIRE has no institutional position on affirmative action programs, we routinely see government actors use anti-discrimination rationales to censor First Amendment-protected speech. 

    Recommendations for OCR

    FIRE has seen a number of states seek to rein in DEI-related administrative offices at their state educational institutions. We’ve told those legislatures repeatedly that, while they have significant authority to manage nonacademic bureaucracies at their public higher education institutions, they cannot restrict which ideas can be taught in the college classroom, including on topics related to “diversity, equity, and inclusion,” or related concepts. They also cannot restrict student organizations from forming around or advocating on behalf of DEI initiatives.

    OCR’s new Dear Colleague letter chides educational institutions for “routinely us[ing] race as a factor in admissions, financial aid, hiring, training, and other institutional programming.” [Emphasis added.] It states that over the past few years, schools have “toxically indoctrinated” students, asserting that institutions have been “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.” [Emphasis added.]

    West Virginia Executive Order on ‘DEI’ unconstitutionally limits university classroom discussions.

    News

    West Virginia Gov. Patrick Morrisey issued an executive order to eliminate DEI practices in state agencies and organizations that receive state money.


    Read More

    While OCR is free to criticize colleges for overstepping the bounds of the law on  DEI-related issues over the past few years, it must be careful when turning that criticism into policy. When a regulatory agency with the authority to cut off all federal funding to institutions cites certain types of “programming” as evidence that institutions could be violating federal anti-discrimination law, it risks chilling speech on those topics. That is especially true when the term “programming” is left undefined in the letter. Private institutions also maintain broad First Amendment rights of their own, and threats to punish them for their own speech about DEI or affirmative action risks violating the free speech rights of those institutions. 

    To abate any confusion arising from the letter, OCR should provide additional guidance to describe in more detail the types of programming it thinks violates Title VI and other anti-discrimination laws. Does OCR seek to prohibit institutions from hosting outside speakers who espouse disfavored ideas about DEI? Does OCR seek to limit particular classwork or research at institutions? If so, it has strayed beyond the First Amendment’s boundary. 

    To avoid chilling protected speech, OCR should clarify the distinction between providing benefits or preferences to individuals based on race or other protected characteristics, and pure speech about DEI and affirmative action — and make clear that it is not banning the latter. OCR must also be careful about regulating institutional trainings at private institutions in ways that violate institutional free speech rights. 

    As FIRE has made clear many times over the course of several administrations, OCR is bound by the First Amendment and cannot order or compel colleges and universities to violate it. 

    Courts have struck down government attempts to regulate DEI-related trainings offered by private businesses. The U.S. Court of Appeals for the Eleventh Circuit, for example, upheld an injunction blocking Florida’s Stop WOKE Act insofar as it applied to private business trainings, writing that “by limiting its restrictions to a list of ideas designated as offensive, the Act targets speech based on its content. And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints—the greatest First Amendment sin.” 

    FIRE hopes OCR will quickly provide institutions with additional clarity about the full scope of its Title VI interpretations. 

    FIRE is challenging other parts of the Stop WOKE Act that restrict classroom instruction in higher education on First Amendment grounds. After a federal district court issued a preliminary injunction preventing the state from enforcing those sections of the law, our case is now before the Eleventh Circuit.  

    To the extent OCR is concerned about the lawfulness of certain mandatory training programs, OCR could require state institutions to make public their training materials on DEI-related issues. FIRE’s Intellectual Freedom Protection Act, which prohibits public colleges from requiring mandatory DEI statements — or any other political litmus test — as a condition of hiring or promotion, contains a provision that could be a useful starting point: 

    Each public institution of higher education in the state shall post and make publicly available all training materials used for students, faculty, and staff, on all matters of nondiscrimination, diversity, equity, inclusion, race, ethnicity, sex, or bias, and all of its policies and guidance on those issues, on its website. 

    Such a requirement would provide both regulators and the public with a better idea of how institutions train its students about DEI-related topics. 

    Recommendations for institutions interpreting recent executive orders, memos, and letters

    If there is a conflict — real or perceived — between federal guidance and the First Amendment, the First Amendment prevails. For public institutions, this means they cannot violate faculty or student speech or associational rights regardless of federal agency guidance. For private institutions, this means federal guidance cannot unlawfully restrict the institution’s speech or pressure the institution to unlawfully suppress the speech or association of their faculty or students. 

    Campus administrators nationwide should not over-read this Dear Colleague Letter to justify censoring student or faculty expression. It would be wise to read it in conjunction with President Trump’s Jan. 21 Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” the directive that likely led to this letter and that contains provisions expressly protecting free speech and academic freedom:

    (b)  This order does not prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech.

    (c)  This order does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.

    Since the Justice Department has a role in enforcing Title VI alongside that of the Education Department’s OCR, institutions should also note Attorney General Bondi’s memo on “Ending Illegal DEI and DEIA Discrimination and Preferences.” Her memo expressly notes:

    This memorandum is intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex. It does not prohibit educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination. 

    When read together in the context of these companion documents, the new DCL should provide no justification for institutions to believe they must censor students, student organizations, or faculty, or rush to cancel university-sponsored cultural events or celebrations. Moreover, doing so may well violate the First Amendment at public universities—and again, courts will always give precedence to constitutional guarantees over guidance and regulations. Colleges will, however, need to end any policy or programs that actively separate individuals or provide benefits based on race.

    Given the tight timeline for compliance, FIRE hopes OCR will quickly provide institutions with additional clarity about the full scope of its Title VI interpretations. In the meantime, we again remind colleges and universities to honor their constitutional duties or institutional promises to protect the freedom of expression and academic freedom of their students and faculty. 

    Source link

  • Former Rep. Justin Amash joins FIRE’s Advisory Council

    Former Rep. Justin Amash joins FIRE’s Advisory Council

    When former Representative Justin Amash announced that he would not be seeking reelection to the House of Representatives in 2020, a lot of people wondered what he was going to do next. Voters in western Michigan first elected him to the House in 2010, and Amash won reelection four times. In office, he developed a reputation as a principled independent who wasn’t afraid of calling out members in his own party — including the president — when he thought their actions threatened Americans’ civil liberties.

    Since leaving Congress, Amash has remained an outspoken advocate for the individual freedoms protected under the Constitution, especially free speech.

    “The value of free speech comes from encountering views that are unorthodox, uncommon, or unaccepted. Humans learn and grow by engaging with ideas that challenge conventional thinking,” he wrote on Twitter back in 2022. “Free speech is a barren concept if people are limited to expressing views already widely held.”

    FIRE is excited to announce that Amash has joined our Advisory Council, where his expertise in constitutional law and federal policymaking will support FIRE’s mission to defend and sustain the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty.

    Amash remains politically active and is a vocal opponent of all efforts — from both the left and the right — to undermine constitutional protections and individual liberty. 

    Amash was born in Grand Rapids, Michigan, and has spent most of his life there. His father, a Palestinian refugee, and his mother, a Syrian immigrant, inspired his dedication to the cause of liberty. 

    “When I was a child, they spoke often about the value of freedom and how blessed we were to live in America,” says Amash.

    A graduate of the University of Michigan, with a bachelor’s degree in 2002 and juris doctor in 2005, Amash practiced law until his election to the Michigan House of Representatives in 2008, where he served one term before being elected to Congress in 2010, where he served until 2021.

    While in office, much of Amash’s work focused on civil liberties issues and protecting constitutionally secured rights. He was the chairman of the House Liberty Caucus — a nonpartisan congressional caucus supporting limited, constitutional government — and he was a member of the Second Amendment Caucus and co-chair of the Fourth Amendment Advisory Committee. His sponsored legislation included bills to rein in warrantless government surveillance, eliminate civil asset forfeiture, and end qualified immunity for government officials who violate constitutional rights. Since leaving office, Amash has also called for repealing the Espionage Act, which the federal government has used to punish protected free speech for more than 200 years.

    Amash was known for explaining his votes online as part of a commitment to government transparency and accountability. Amash remains politically active and is a vocal opponent of all efforts — from both the left and the right — to undermine constitutional protections and individual liberty. His commentary can be found on X and Substack, and his words have recently appeared in Reason Magazine, The Free Press, and other outlets.

    Source link

  • FIRE’s president to Donald Trump: Here’s how you can help save free speech

    FIRE’s president to Donald Trump: Here’s how you can help save free speech

    Since the 2008 election, our President and CEO Greg Lukianoff has written to each new president upon their inauguration, offering FIRE’s perspective on how they can help defend free speech and academic freedom.

    Read LETTER FROM Greg Lukianoff to President DONALD Trump

    As President Trump enters office today, there is much work to be done. Free speech is under attack on college campuses. In fact, last year was the worst on record for free speech on college campuses, as more attempts were made to deplatform speakers on campus than any year since FIRE began tracking in 1998. And professors are censoring themselves more now than at the height of the McCarthy era.

    Off campus, the situation is alarming as well.

    Greg’s letter to President Trump highlights some policies his administration can implement to help remedy the situation and protect free speech over the next four years, on campus or off.

    1. Support the Respecting the First Amendment on Campus Act

    A 2024 FIRE study found that only 15% of public colleges and universities’ speech policies comply fully with their First Amendment obligations. This should be a national scandal.

    But there’s a simple way for the Trump administration, working with Congress, to better protect the free speech rights of our nation’s students.

    FIRE to Congress: More work needed to protect free speech on college campuses

    News

    FIRE joined Rep. Murphy’s annual Campus Free Speech Roundtable to discuss the free speech opportunities and challenges facing colleges.


    Read More

    We ask that Trump support the Respecting the First Amendment on Campus Act — or another piece of legislation to protect campus speech rights — to codify speech protective standards  including ending “free speech zones” that limit where students can hold demonstrations, the levying of viewpoint-based security costs to punish student groups seeking to host “controversial” speakers, and encouraging institutions to adopt the Chicago Principles on Free Expression.

    At least 23 states have enacted some of these commonsense provisions, but student free speech rights deserve federal protection. Legislation to ensure that all of our nation’s public colleges and universities finally protect the basic free speech rights of their students should be a top priority.

    2. Address the abuse of campus anti-harassment policies

    In the landmark 1999 decision Davis v. Monroe County Board of Education, the Supreme Court defined student-on-student harassment as behavior that “is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.”

    After 25 years of advocating for students’ rights on campus, FIRE knows all too well how definitions of student-on-student harassment that fail to meet the Davis standard will inevitably be used to punish protected speech. Consider the 2022 case of eight law students at American University who were put under investigation for participating in a heated back-and-forth following the leak of the Dobbs v. Jackson draft opinion, after another student said their pro-choice commentary harassed and discriminated against him based on his religious, pro-life beliefs. 

    As president, Trump inherits the privilege and the obligation to defend the First Amendment rights of all Americans, regardless of their viewpoint

    But properly applied, the Davis standard ensures that institutions protect students against actual discriminatory behavior as opposed to punishing students who merely express controversial viewpoints.

    3. Rein in government jawboning

    Leaks and disclosures over the past few years have brought to light demands, threats, and other coercion from government officials to social media companies aimed at suppressing particular viewpoints and ideas.

    This practice, known as jawboning, is a serious threat to free speech. But the Trump administration can prevent jawboning by federal officials with the following steps:

    • Prohibit federal employees from jawboning;
    • Support legislation to require transparency when government officials communicate with social media companies about content moderation. FIRE’s SMART Act is one such model bill.
    • Refrain from threatening or pressuring social media platforms to change their content moderation practices or suppress particular users.

    And, of course, refrain from making calls for investigations, prosecutions, or other government retaliation in response to the exercise of First Amendment rights outside of the social media context as well.

    4. Protect First Amendment rights when it comes to AI

    Over the course of history, technologies that make communication easier have aided the process of knowledge discovery: from the printing press and the telegraph to the radio, phones, and the internet. So too have AI tools revealed their potential to spark the next revolution in knowledge production.

    What is jawboning? And does it violate the First Amendment?

    Issue Pages

    Indirect government censorship is still government censorship — and it must be stopped.


    Read More

    The potential power of AI has also prompted officials at all levels of government to move towards regulating the development and use of AI tools. Too often, these proposals do not account for the First Amendment rights of AI developers and users. 

    The First Amendment applies to AI just as it does to other technologies that Americans use to create and distribute writings, images, and other speech. Nothing about AI software justifies or permits the trampling of those rights, and doing so would undermine its potential as a tool for contributing to human knowledge.

    Trump’s administration can prevent this by rejecting any federal regulation of AI that violates the First Amendment.

    Conclusion

    The Trump administration faces historic challenges both at home and abroad. But the United States is uniquely capable of solving our challenges because of our unparalleled commitment to freedom of speech. 

    As president, Trump inherits the privilege and the obligation to defend the First Amendment rights of all Americans, regardless of their viewpoint — and FIRE stands ready to help in that effort.

    Source link

  • LA Schools Reopen, But Recovery Will Be Long and Painful – The 74

    LA Schools Reopen, But Recovery Will Be Long and Painful – The 74


    Get stories like this delivered straight to your inbox. Sign up for The 74 Newsletter

    It was just after 1 am when Los Angeles charter school superintendent Ian Mcfeat started getting text messages and phone calls at a relative’s house where he was sheltering from the fires. 

    His neighbors said his house was burning down in the wildfires – along with his entire Altadena neighborhood of Los Angeles.

    Aveson School of Leaders, which McFeat runs and where his kids attended school just three blocks from his house, was also burning.

    Unable to sleep, Mcfeat drove away from his in-law’s house that he’d been evacuated to and made the drive back to Altadena.

    He drove through the fire lines and into his neighborhood to see if he could salvage anything, save anyone, or put out the fires that had raged on the east side for more than 48 hours straight, and decimated the Palisades in the west. 

    He was greeted with a scene out of a horror movie. Fueled by a violent windstorm and piles of brush left from a particularly wet winter last year, the firestorm was like a tornado shooting flames, blasting through his neighborhood.

    “It was like driving through a bomb scene,” said Mcfeat. “There were homes exploding. I probably shouldn’t have been there.” 

    Despite the devastating losses, Mcfeat can’t imagine not rebuilding his home and school right where they were in Altadena. But the road to recovery will be a long and painful one.

    “No doubt about it. We are going to rebuild,” said Mcfeat. Aveson has started a GoFundMe. At this point, a new site for the school has not been identified. The district hasn’t been able to help them yet.

    “I don’t know what we’re going to do,” said Mcfeat.

    The wildfires that burned Los Angeles this month are the costliest and most destructive in the city’s history, displacing more than 150,000 residents and killing at least 25 people. Two massive blazes fed by windstorms, the Palisades Fire and the Eaton Fire, simultaneously scorched the city from the sea to the mountains, filling the air with vast plumes of ash and smoke.

    As the wind and flames began to retreat last week, and firefighters gained control of the fires, schools began to reopen. And the kids began to return to class.

    The Los Angeles Unified School District, which is by far the largest district of about 80 in Los Angeles County, resumed instruction Monday after being totally closed since last Thursday. Seven schools remain shut because they’re located in evacuation zones. Another three won’t reopen because their buildings were badly burned or destroyed in the fires.  

    Dozens of much smaller districts in Los Angeles County also reopened this week, with the exceptions of two districts, Pasadena Unified, which encompasses Altadena, and La Cañada Unified, which neighbors Altadena to the west. 

    The Eaton fire has destroyed at least five schools but was mostly contained by Friday. 

    Kids from two of the LAUSD schools that burned in the Palisades, Marquez Charter Elementary School and Palisades Charter Elementary School, were placed, with intact school rosters, in close-ish LAUSD school buildings that already had other schools in them.

    The students who attended the burned schools were given their own entrances, classrooms and courtyards for kids to play. When parents dropped them off at class this week, there were a lot of tearful reunions.

    Families from Palisades Charter were somber, but excited to return to normalcy with their new space located inside of Brentwood Science Magnet School.  

    Joseph Koshki, a parent from the Palisades whose son attends third grade at Palisades Charter, walked holding hands with his son to their new classroom at Brentwood Science, which had been stacked with balloons.

    “When he saw his school burned on the news he was crying for days,” Koshki said of his child. “But when he heard that he was going to his new school with his old friends, he was so happy”.

    Nina Belden, a parent of a Palisades Charter student who had made an emergency evacuation from her house in the Palisades with her family, said it was important for the students at her daughter’s school to stay together and receive in-person instruction.

    “We were worried they were going to do something like remote learning,” said Beldon.

    Marquez Charter, which also burned in the Palisades fire, has a long history in the community, having opened in 1955 when the Palisades still had a frontier feel, before the neighborhood became a favorite of Hollywood stars and media execs.

    For Victoria Flores, who works as a paraeducator at Marquez, the school is part of her family. Flores went to Marquez when she was in elementary school, and her mother works in the cafeteria.

    “It was my home away from home. We are devastated by what happened,” Flores said.

    But Flores said she and the rest of the staff were glad to be relocated together at a LAUSD school called Nora Sterry, about ten miles from the burned Marquez campus.

    “We are a really close family,” said Flores. “That’s helped us a lot.”

    Upstairs at Nora Sterry, Clare Gardner’s class had about eight of twenty students show up on the first day of relocation.

    Her third-grade class was playing with clay and Mrs. Gardner, who is a twenty-seven-year veteran of Marquez, held back her tears as she helped students arrive into class.

    “We always call it the Marquez family,” Gardner said as the children greeted each other.

    One boy in Mrs. Gardner’s class said he was happy to be around his friends and teacher but sad about his classroom fish and books, which were lost in the fire.

    Later in the morning, LAUSD Superintendent Alberto Carvalho went to visit parents at Nora Sterry.

    After nearly a week off school, Carvalho says attendance is still below normal.

    “I think where that attendance is lacking is in schools that were directly affected” by the fires, Carvalho said.

    Also hurting attendance, Carvalho said, is the fact that many families are enduring temporary relocations, while others lack stable housing entirely.

    LAUSD staff attendance is back to normal, he said, while student attendance is about 88% — down from an average of about 90%, representing about 10,000 fewer students than normal.

     “As conditions of the families begin to normalize and stabilize, those [attendance] numbers will rise,” said Carvalho.

    For other schools in other areas of Los Angeles, recovery may be longer in the making. 

    Bonnie Brinecomb, principal of Odyssey Charter School – South in Altadena, which burned to the ground in the Eaton Fire, estimates that the homes of 40% of the students enrolled in the school also burned.

    Families and school staffers are scrambling to ensure displaced families have food, shelter and clothing, Brinecomb said. Some students are turning up for daycare at a nearby Boys and Girls Club that offered to take them in.  

    Brinecomb said Odyssey has partnered with McFeat’s school Aveson to search for new facilities. But the double loss of students’ homes and the schools’ campuses is a gutpunch.  

    “It’s just heartbreak. Pure shock,” she said. “You don’t even process how bad of a situation just happened.”

    Like Aveson, Odyssey has launched an online fundraiser and Brinecomb says the school will rebuild. How long that will take, though, remains an open question.  

    From the perspective of displaced children and families, the faster things return to normal, the better, said Dr. Frank Manis, professor emeritus of psychology at the University of Southern California. 

    The experience of trauma can intensify if routines are disrupted for longer periods, and the intensity of the disruption matters as well, said Manis. Kids who lost their homes to fires may have a harder time bouncing back than those who only lost their schools, he said.    

    “It’s sort of on that spectrum of wartime PTSD, but not as bad,” said Manis. “So what it could lead to is nightmares, difficulty sleeping, and emotional or behavior problems that can last for quite a while.”

    Children fighting post-traumatic stress from the fires may become withdrawn, or act out in class, said Manis. But mostly, he said, the research from past natural disasters shows that even children badly impacted by the fires may begin to feel normal within a few months. 

    “Kids are pretty resilient,” said Manis. “But trauma can disappear for a while, and then it can resurface later. When everyone’s forgotten how bad it was, it can resurface.” 


    Get stories like these delivered straight to your inbox. Sign up for The 74 Newsletter

    Source link

  • No speech for you: College fires professor for calling America ‘racist fascist country’ in email to students

    No speech for you: College fires professor for calling America ‘racist fascist country’ in email to students

    When tenured Millsaps College professor James Bowley sent an email sharing his opinion on the outcome of the 2024 presidential election, he didn’t anticipate it would result in his termination. But in a perfect storm of overreach and red tape, that’s exactly what happened. 

    On Nov. 6, 2024 — the day after the election — Bowley emailed the students in his “Abortion and Religions” class, canceling that day’s session to “mourn and process this racist fascist country.” With only three students in the class, Bowley got to know them quite well, including their political feelings, and knew canceling class would be best for those students. As Bowley told FIRE, “I just want to be caring and kind to my students, whom I knew would be troubled by the election.” Bowley wasn’t just trying to get out of work; he did not cancel the much larger first-year writing class session he taught that same day because he had no reason to know how those students felt about the election. 

    Two days later, Millsaps Provost Stephanie Rolph informed Bowley that he had been placed on temporary administrative leave pending review, for the bizarre offense of using his “Millsaps email account to share personal opinions with [his] students.” 

    That’s right: Millsaps didn’t take issue with Bowley canceling class (likely because they’d have to punish lots of people; professors cancel class for all sorts of reasons). The only cited reason was the use of his email to share personal opinions with students, which unsurprisingly is not an actual policy violation. That’s right: The college simply fabricated a policy violation so it could punish a professor for his speech. Frank Neville, president of the private college, has ignored hundreds of calls to reinstate Bowley, who was unable to do his job for over three months until yesterday, when he was eventually fired.

    Welcome to Millsaps, a labyrinth of academic bureaucracy where personal opinions may not be shared.

    Millsaps College president Frank Neville denied a committee recommendation and doubled down on Bowley’s leave being both justified and necessary, without explanation. (Barbara Gauntt / Clarion Ledger / USA TODAY NETWORK)

    Professor punished without due process

    Everything about Bowley’s treatment goes directly against Millsaps’ own fundamental principles of “freedom of speech and expression.” While Millsaps is a private institution not bound by the First Amendment, its commitment to free speech leads any reasonable student or faculty member to believe they are being promised expressive rights that align with the First Amendment. 

    Courts have recognized protection for a great deal of faculty speech on matters of public concern (say, a presidential election) because higher education depends on the wide exposure to robust exchanges of thoughts and ideas. But Millsaps’ actions here signal that it doesn’t take its own principles seriously and is making up its own standards for free speech and expression. That’s not okay with us — and it’s unfair to the students and faculty of Millsaps.

    Not only did FIRE request that Millsaps drop the investigation and reinstate Bowley, but so did more than 100 students, reportedly, (pretty impressive for a college of only about 600) and over 500 alumni. And when Bowley contested the provost’s decision to place him on leave, a grievance committee made up of faculty members determined that Millsaps couldn’t identify a single policy that Bowley had violated. The committee recommended that Bowley be reinstated immediately.

    FIRE remains by Bowley’s side, fighting for his return to teaching — and his right to share his opinions with students.

    The grievance committee, like FIRE, also found that Bowley was not afforded proper due process. Bowley was placed on leave before receiving a hearing and final determination. By doing so, the provost created an intermediary step in the process of dismissing a professor that exists nowhere in the handbooks — all without Bowley having any prior violations or disciplinary actions taken against him.

    But Neville seemed unfazed by the calls from the Millsaps community and unconvinced by the facts presented to him. On Jan. 10, Neville denied the grievance committee’s recommendation and doubled down on Bowley’s leave being both justified and necessary, without explanation.

    Calls to reinstate Bowley continued, this time reaching tens of thousands of people. But that still wasn’t enough. On Jan. 14, Bowley was told in a meeting that he was fired for not exercising restraint and not clarifying that his views were not that of the college’s. To be clear: The college fired Bowley for an offense – not clarifying that his views were not that of the college’s – of which he wasn’t accused. It’s no surprise that Bowley could not extricate himself from what Millsaps made into an impossible situation. 

    Ferris State cannot punish professor for comedic — and now viral — video jokingly referring to students as ‘cocksuckers’ and ‘vectors of disease’

    News

    It’s a joke, people. But violating faculty rights is not.


    Read More

    Even if the college had originally charged Bowley with not clarifying that his views were not that of the college’s, his email to his class still wouldn’t qualify. Whatever interest Millsaps may have in preventing faculty from purporting to speak on its behalf does not justify automatic punishment for simply not asserting that one isn’t speaking for the college. In fact, the Supreme Court has held that a teacher could not be punished for a letter to the editor he wrote in which he identified himself as a teacher at a certain school. Just because Bowley is identified as working at Millsaps (via his faculty email), doesn’t mean his speech is transformed into speech on behalf of the college. 

    Millsaps cannot overcome this principle just because it wants faculty to indicate whether views expressed “are individual or those of the institution.” Nothing in Bowley’s email can reasonably be interpreted as speaking on behalf of Millsaps, as it is commonly understood that when using their college email, faculty members are speaking for themselves rather than conveying that they speak for their employer. And here, Bowley was very clearly sharing an opinion – a criticism of an election outcome – that any reasonable person would understand as being his own opinion. 

    Bowley told FIRE yesterday: “I love Millsaps College and even more I love my students, but censorship by an administration by definition means that it is not education anymore; it is not a legitimate college.”

    FIRE remains by Bowley’s side, fighting for his return to teaching — and his right to share his opinions with students.

    Source link

  • Extreme drought, high winds helped spark the California fires (CBS News)

    Extreme drought, high winds helped spark the California fires (CBS News)

    High winds intersecting with historic drought levels are contributing to the dangerous conditions that sparked the multiple fires raging in the Los Angeles area. Dr. Helen Holmlund, an assistant professor of biology at Pepperdine University, joins CBS News with more on the extreme conditions. 

    Related link:

    Shall we all pretend we didn’t see it coming, again?: higher education, climate change, climate refugees, and climate denial by elites 

    Thinking about climate change and international study (Bryan Alexander)

    Source link

  • FIRE’s defense of pollster J. Ann Selzer against Donald Trump’s lawsuit is First Amendment 101

    FIRE’s defense of pollster J. Ann Selzer against Donald Trump’s lawsuit is First Amendment 101

    It is hard to imagine a legal claim that violates basic First Amendment principles more thoroughly than does President-elect Donald Trump’s lawsuit against veteran Iowa pollster J. Ann Selzer and The Des Moines Register. 

    His civil lawsuit arises from a poll published before the November 2024 election that predicted Vice President Kamala Harris in the lead in Iowa. It seeks damages and a court order to prevent the newspaper from publishing any future “deceptive polls” that might “poison the electorate.”  

    Trying to punish newspapers for supposedly “false” reports is not a new phenomenon. Backlash to the Sedition Act of 1798, in which Congress criminalized “false” criticism of some politicians, laid the foundation of First Amendment doctrine. This lawsuit is just a new name for the same theory long rejected under the First Amendment.

    Trump’s lawsuit, brought under an Iowa law against “consumer fraud,” violates long-standing constitutional principles. It’s also entirely meritless under the Iowa law. 

    Enlisting the courts to settle political grudges is directly at odds with the First Amendment’s protection for political speech.

    The lawsuit is the very definition of a “SLAPP” suit — a Strategic Lawsuit Against Public Participation. Such tactical claims are filed purely for the purpose of imposing punishing litigation costs on perceived opponents, not because they have any merit or stand any chance of success. In other words, the lawsuit is the punishment. And it’s part of a worrying trend of activists and officials using consumer fraud lawsuits to target political speech they don’t like. 

    FIRE opposes SLAPP suits and is representing Selzer in order to vindicate her — and your — First Amendment rights.

    Every election has its outlier polls.

    Election polling is core First Amendment activity. It asks people how they will vote and shares an opinion — an educated guess — predicting the likely outcome. Every presidential election cycle brings hundreds of polls, and every cycle has outliers giving false hope (or added anxiety) to supporters of a given candidate.

    Selzer’s Iowa polls have long enjoyed “gold standard” status, accurately predicting Donald Trump’s victories in Iowa in 2016 and 2020. But despite using the same methodology as her previous polls, Selzer’s final 2024 poll, commissioned by the Register, was this cycle’s outlier, predicting a narrow Harris victory. 

    Selzer owned up to the margin between her poll and the eventual outcome of Trump comfortably winning Iowa. She acknowledged the “biggest miss of my career” and did what good pollsters do: She explained her methodology and publicly shared the poll’s crosstabs (results reported out by demographic and attitudinal subgroups), its questionnaire (with demographic information and weighted and unweighted responses), and her theories on the results, inviting others to offer theirs in turn. 

    A bogus ‘consumer fraud’ lawsuit

    The post-election transparency Selzer provided wasn’t enough for Trump, despite his winning the presidency.

    During a press conference last month, Trump theorized that the poll was fabricated entirely and pledged to “straighten out the press” because it was “almost as corrupt as our elections are.” That evening, he sued Selzer, her polling company, the Register, and the newspaper’s parent company, Gannett, claiming the poll’s publication violated Iowa’s consumer fraud statute. 

    This lawsuit uses an inapplicable state statute as a cudgel to force Selzer and the Register to waste time and money on lawyers to respond to the allegations. Enlisting the courts to settle political grudges is directly at odds with the First Amendment’s protection for political speech. 

    Trump’s calls to investigate pollster put First Amendment at risk

    News

    President-elect Donald Trump called for an investigation after Des Moines Register pollster Ann Selzer predicted just days before the election that he would lose Iowa by three points.


    Read More

    Start with the law. Consumer fraud laws target sellers who make false statements to get you to buy something. They’re about the scam artist who rolls back the odometer on a used car, not a newspaper poll or TV weather forecast that gets it wrong.

    Just read the Iowa statute. Trump must identify a fraudulent or deceptive statement “in connection with the advertisement, sale, or lease of consumer merchandise, or the solicitation of contributions for charitable purposes.” Selzer’s poll did not advertise or solicit anything, much less “consumer merchandise,” which Iowa law defines as that intended for “personal, family, or household uses.” 

    Trump’s complaint also argues Selzer engaged in “brazen election interference.” But publishing a poll doesn’t constitute “election interference.” Under Iowa law, election “interference” is conduct like submitting a “counterfeit official election ballot,” encouraging someone to vote when you know they legally cannot, or other forms of direct interference with the conduct of the election. 

    Conducting and publishing a poll is protected First Amendment speech. It has nothing to do with “election interference.”

    The use of consumer fraud lawsuits collides with the First Amendment

    The notion that officials can recast the electorate as “consumers” to punish political speech or news they don’t like is squarely at odds with the First Amendment — yet it’s a theory increasingly advanced by partisans on both the left and the right. From the left, there are calls to regulate “misinformation” on social issues and, from the right, calls to impose “accountability” on news media for their political commentary. 

    Consumer fraud statutes have no place in American politics, or in regulating the news. But it has become an increasingly popular tactic to use such laws in misguided efforts to police political speech. For example, a progressive nonprofit tried to use a Washington state consumer protection law in an unsuccessful lawsuit against Fox News over its COVID-19 commentary. And attorneys general on the right used the same “we’re just punishing falsehoods” theory to target progressive outlets. Right now, Texas is arguing in a federal appellate court that it can use the state’s Deceptive Trade Practices Act to punish political speech even if it is “literally true,” so long as officials think it’s misleading.

    Any attempt — by Democrats, Republicans, or anyone else — to punish and chill reporting of unfavorable news is an affront to the First Amendment.

    Attempts to prohibit purportedly false statements in politics are as old as the republic. In fact, our First Amendment tradition originated from colonial officials’ early attempts to use libel laws against the press. 

    America rejected this censorship after officials used the Sedition Act of 1798 to jail newspaper editors for publishing “false” and “malicious” criticisms of President John Adams. Thomas Jefferson pardoned and remitted the fines of those convicted, writing that he considered the Act “to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.” 

    The Supreme Court has since described our experience with the Sedition Act as the event that “first crystallized a national awareness of the central meaning of the First Amendment.” And it has held that government efforts to bar the publication of news reports are “the essence of censorship.” 

    Since then, courts have soundly and repeatedly rejected modern campaigns to regulate “false” speech because, under the First Amendment, “the citizenry, not the government, should be the monitor of falseness in the political arena.”

    SLAPPs chill speech because lawyers are expensive and lawsuits are stressful

    Even when a court dismisses a meritless lawsuit against a speaker, the person filing the lawsuit still “wins” because their critics must spend time and money on the legal process. As Trump once colorfully put it after losing a lawsuit: “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.” 

    Some states have anti-SLAPP statutes that require a plaintiff suing over speech to show his case has merit. If he cannot, the plaintiff has to pay the defendant’s legal fees — discouraging plaintiffs from chilling speech through the cost of a lawsuit. But Iowa is not among those states.

    So FIRE is stepping in to represent Selzer and her polling company, Selzer & Company, against this baseless suit. By providing pro bono support, we’re helping to remove the financial incentive of SLAPP suits — just as we’ve done when a wealthy Idaho landowner sued over criticism of his planned airstrip, when a reddit moderator was sued for criticizing a self-proclaimed scientist, and when a Pennsylvania lawmaker sued a graduate student for “racketeering.” (If you are a lawyer who wants to help provide pro bono support to people facing lawsuits for their speech, please join FIRE’s Legal Network.)

    Any attempt — by Democrats, Republicans, or anyone else — to punish and chill reporting of unfavorable news is an affront to the First Amendment. Hearing an opinion or prediction that turns out to be “wrong” is the price of living in a free society. And no American should fear that their commentary on American elections should subject them to liability.

    FIRE protects the First Amendment, whether it’s threatened by the president of the United States or your local mayor. And we do so for all Americans, whether you’re a conservative student unable to wear a “Let’s Go Brandon” sweatshirt, a professor censored under Florida’s STOP WOKE Act, or a libertarian mother arrested for criticizing her city’s mayor. 

    If your First Amendment rights are threatened, contact FIRE.

    Source link

  • Free speech advocates converge to support FIRE’s ‘Let’s Go Brandon’ federal court appeal

    Free speech advocates converge to support FIRE’s ‘Let’s Go Brandon’ federal court appeal

    FIRE, supported by a wave of prominent organizations and scholars as “friends of the court,” has appealed a district court’s ruling that limited the rights of students to attend middle and high school wearing clothes bearing the “Let’s Go Brandon” political slogan. FIRE is asking a federal appeals court to strike down the decision below and uphold freedom of expression for public school students, and a broad spectrum of free speech advocates and language experts are backing us up.

    So what happened? In April 2023, FIRE sued a west Michigan school district and two administrators for preventing two students from wearing “Let’s Go Brandon” sweatshirts. The “Let’s Go Brandon” slogan originated during an October 2021 NASCAR race. After the race, won by Brandon Brown, members of the crowd chanted “Fuck Joe Biden” during Brown’s post-race interview. A commentator remarked that the fans were shouting “Let’s Go Brandon!” 


    WATCH VIDEO: NASCAR fans chant “Fuck Joe Biden” after the race.

    Since then, the presidential campaign of Donald Trump and Republican members of Congress have used the phrase widely, including during Congressional floor speeches, to show their displeasure with the Biden administration. The “Let’s Go Brandon” slogan airs uncensored on broadcast television, national cable news, and broadcast radio for all to hear. In the case on appeal, FIRE’s clients wore their “Let’s Go Brandon” sweatshirts to school to express their disapproval of Biden and his administration. 

    During the lawsuit, the school acknowledged the students did not cause any disruption with their apparel. Yet this past August, the District Court for the Western District of Michigan upheld the school district’s censorship of “Let’s Go Brandon” apparel, holding “Let’s Go Brandon” is legally indistinguishable from “Fuck Joe Biden” and therefore constitutes “profanity.” 

    As FIRE’s appeal argues, that’s not how speech works. “Heck” is not the same as “hell,” “darn” is not the same as “damn,” and “Let’s Go Brandon” is not the same as “Fuck Joe Biden.” The government may not censor public school students’ political expression absent substantial disruption. Nor may school districts bypass this First Amendment protection by dubbing disfavored political speech “profane.” 

    This case will play a critical role in protecting the rights of other minor students to engage in non-disruptive political expression as guaranteed under the First Amendment.

    Last week, 18 individuals and organizations, including some of the world’s foremost linguistic experts, joined together to file eight amicus curiae, or “friend of the court” briefs in support of minors’ free speech rights. These briefs urge the Sixth Circuit to recognize what has long been understood outside the courtroom — sanitized expression is, by design, distinguishable from the profane language it replaces: 

    Linguistic Scholars: Dr. Melissa Mohr, Dr. Rebecca Roache, Professor Timothy Jay, Professor John H. McWhorter, and Professor Steven Pinker are internationally recognized linguistic scholars whose works focus on the history, psychology, and sociology of swearing. Each has written extensively on how language works and the role it continues to play in society. Together, they submitted a brief through Quinn Emanuel Urquhart & Sullivan, LLP, helpfully delineating the different types of “sanitized expression,” including euphemisms like “Let’s Go Brandon,” and describing their ubiquity and importance in political discourse. As they state at the beginning of their brief: “This case is not about swearing; it is about not swearing.”

    First Amendment Scholars: Dean Erwin Chemerinsky, Professor Clay Calvert, Professor Roy Gutterman, Professor Mary-Rose Papandrea, and Professor Joseph A. Tomain submitted an amicus brief through Cornell Law School’s First Amendment Clinic and attorney Michael Grygiel. Drawing on decades of study, the scholars methodically apply seminal First Amendment decisions to this particular case. Their brief argues: “the lower court failed to apply Tinker’s ‘substantial disruption’ test, as required when schools seek to prohibit student expression within the school environment that communicates a political message,” and thus “departed from longstanding public student constitutional free speech principles.”

    Liberty Justice Center: The Liberty Justice Center’s amicus brief asserts the district court’s decision represents an unprecedented expansion of “profanity” and is part of a nationwide increase in political censorship. The brief describes how “censorship of entirely mainstream political discourse has become all too common around the country” and school authorities increasingly seek to restrict free expression. The LJC argues that the district court’s opinion exacerbates this growing problem, by authorizing schools to treat “every euphemism . . . as the equivalent of its reference.”

    Dhillon Law Group, Young America’s Foundation, and Hamilton Lincoln Law Institute: These organizations submitted an amicus brief asserting the lower court’s failed to properly apply Tinker and its progeny to the students’ “Let’s Go Brandon” sweatshirts, which likewise represented political, non-profane student speech. Through careful analysis of First Amendment doctrine, their brief explains that the “district court erred in disregarding the political nature of appellants’ ‘Let’s Go Brandon’ apparel” and undervaluing the importance of First Amendment protections in K-12 public schools.

    National Coalition Against Censorship: The National Coalition Against Censorship submitted an amicus brief through Covington & Burling LLP to challenge the district court’s categorization of “Let’s Go Brandon” as unprotected “profane” expression. The brief argues that the “district court’s analysis would create a new, ill-defined category of ‘euphemistic’ profanity,” and “give school officials wide latitude to silence viewpoints they find objectionable, a result at odds with existing First Amendment doctrine.” The brief asserts that the lower court’s decision “represents a serious departure from our nation’s historical commitment to protecting political speech” and urges the Sixth Circuit to reverse. 

    Manhattan Institute: The Manhattan Institute’s amicus brief emphasizes the critical importance of preserving free speech rights in K-12 public schools, where students develop the skills necessary to productively engage in democratic society. The brief describes case law reflecting the importance of these freedoms in primary and secondary schools — and argues the district court’s opinion fails to “accurately reflect this understanding.”

    Parents Defending Education: Parents Defending Education submitted an amicus brief through Consovoy McCarthy PLLC arguing that the district court’s decision cannot be reconciled with First Amendment principles. The brief emphasizes how the school codes at issue in this case are part of a growing and concerning “trend of schools adopting speech codes prohibiting controversial speech.” And the brief asserts each of the cases relied on by the lower court are distinguishable.

    Buckeye Institute: The Buckeye Institute’s amicus brief contends that under established First Amendment doctrine, “[r]egulation of speech under the First Amendment should constitute a rare exception.” Yet, they argue, the Michigan school district, motivated by desire to censor what it deems undesirable speech, disregarded that doctrine in order to censor non-disruptive political speech “that does not fall within one of the Supreme Court’s approved exceptions” to the First Amendment’s protection. 

    Our clients and their counsel are grateful for the support of this impressive and diverse amicus coalition. This case will play a critical role in protecting the rights of other minor students to engage in non-disruptive political expression as guaranteed under the First Amendment.

    Source link