1st Amendment Thread

[de officiis]

CRS Report: The Advocacy of Terrorism on the Internet: Freedom of Speech Issues and the Material Support Statutes

Kathleen Ann Ruane - CRS Legislative Attorney - September 8, 2016

Summary

The development of the Internet has revolutionized communications. It has never been easier to speak to wide audiences or to communicate with people that may be located more than half a world away from the speaker. However, like any neutral platform, the Internet can be used to many different ends, including illegal, offensive, or dangerous purposes. Terrorist groups, such as the Islamic State (IS, also referred to as ISIS or ISIL), Al Qaeda, Hamas, and Al Shabaab, use the Internet to disseminate their ideology, to recruit new members, and to take credit for attacks around the world. In addition, some people who are not members of these groups may view this content and could begin to sympathize with or to adhere to the violent philosophies these groups advocate. They might even act on these beliefs.

Several U.S. policymakers, including some Members of Congress, have expressed concern about the influence that terrorist advocacy may have upon those who view or read it. The ease with which such speech may be disseminated over the Internet, using popular social media services, has been highlighted by some observers as potentially increasing the ease by which persons who might otherwise have not been exposed to the ideology or recruitment efforts of terrorist entities may become radicalized. These concerns raise the question of whether it would be permissible for the federal government to restrict or prohibit the publication and distribution of speech that advocates the commission of terrorist acts when that speech appears on the Internet.

Significant First Amendment freedom of speech issues are raised by the prospect of government restrictions on the publication and distribution of speech, even speech that advocates terrorism. This report discusses relevant precedent concerning the extent to which advocacy of terrorism may be restricted in a manner consistent with the First Amendment’s Freedom of Speech Clause. The report also discusses the potential application of the federal ban on the provision of material support to foreign terrorist organizations (FTOs) to the advocacy of terrorism, including as it relates to the dissemination of such advocacy via online services like Twitter or Facebook.

http://www.fas.org/sgp/crs/terror/R44626.pdf

[de officiis]

Flag burning and the First Amendment: Yet another look at the two

President-elect Donald Trump’s recent comments about prosecuting flag-burning protesters has started yet another debate about the issue. But in the end, the only Justice left on the Supreme Court from the 1980s could have the final say on the matter.

Since Election Night, there has been a renewed interest in the constitutional subject after several anti-Trump protesters burned flags in public to protest his win over Hillary Clinton. On Tuesday, Trump added fuel to the debate with a provoking message on Twitter: “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!”
...
“The Supreme Court has interpreted ‘speech’ and ‘press’ broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like,” said Stone and Volokh.

“The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information ‘the people’ should be allowed to hear.”

http://blog.constitutioncenter.org/2016 ... t-the-two/

I'm afraid Donald is on the wrong side of this issue in his suggestion that someone should do jail time for burning a flag.

[de officiis]

Georgia Police Sergeant Sues After Being Terminated For Flying Confederate Flag In Her Backyard

There is an interesting first amendment case filed in Georgia where a police sergeant is contesting [her] termination after flying the Confederate flag at her home. It is of course perfectly legal to fly a confederate flag and Silvia Cotriss, a 20-year-veteran of the police, said that she was simply celebrating her heritage. However, her neighbors found the flag offensive and complained.

The case raises very serious free speech concerns. On July 11th, a man said that he spotted the flag in Cotriss’ backyard for walking his daughter and son to pre-school. He wrote to Roswell Police Chief Rusty Grant, who had been visiting various black churches in the area after the Dallas police massacre. A complaint was lodged against Cotriss and she was questioned by detectives on why she felt the need to fly the flag. It is a curious investigation because Cotriss has every right to fly the flag for any number of reasons from Southern pride or historical interest. She was told that the flag had negative connotations and was inappropriate. In her termination, Capt. Helen Dunkin of the internal affairs office wrote that Cotriss had “engaged in conduct that was unbecoming, which brought discredit to the Roswell Police Department when she flew” the flag in her yard. A few days later, she was fired.

I hope she gets her job back. Free speech is free speech.

[Speaker to Animals]

I am guessing the police department requires her to wear a Georgia state flag patch on her uniform?

Georgia state flag:



The actual flag of the Confederate States of America:




Another example of how retarded the progs really are.

[Okeefenokee]

I don't see it on the uniforn, but it's flying in front of city hall.

[de officiis]

Lee v. Tam

Simon Tam and his band, The Slants, sought to register the band’s name with the U.S. Trademark Office. The Office denied the application because it found that the name would likely be disparaging towards “persons of Asian descent.” The office cited the Disparagement Clause of the Lanham Act of 1946, which prohibits trademarks that “[consist] of or [comprise] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Tam appealed the trademark officer’s decision, and the name was refused a second time by a board comprised of members of the office. Tam appealed to a panel of judges on the U.S. Court of Appeals for the Federal Circuit, which found that the trademark officials were within their rights to refuse the trademark application under the Disparagement Clause. The appellate court then reviewed the case en banc and found that the trademark office was incorrect in refusing the trademark application and that the Disparagement Clause violated the First Amendment.

Question
Is the Disparagement Clause invalid under the First Amendment?

https://www.oyez.org/cases/2016/15-1293

Summary of the lower court's decision (which the Government appealed to the SCOTUS):

The court determined that the Lanham Act was viewpoint-based discriminatory because whenever the government chooses to deny trademark protection to a mark, it is doing so because of the message the mark conveys. The government tried to defend their position before the Federal Circuit by saying that they should be able to deny protection to the most vile racial epithets and images; however, the Federal Circuit said that "When the government discriminates against speech because it disapproves of the message conveyed by the speech, it discriminates on the basis of viewpoint." The Federal Circuit bolstered their stance that it is viewpoint discriminatory because the PTO refused to register "The Slants"; however, the PTO has registered marks such as "Celebrasians" and "Asian Efficiency". The Federal Circuit found the only difference between marks such as "The Slants" versus "Celebrasians" and "Asian Efficiency" is the messages conveyed. The Slants could be seen as being derogatory towards those of Asian descent versus positive. Since the court determined that the disparaging provision is viewpoint discriminatory, then it is immediately unconstitutional.

In the alternative, the Federal Circuit determined that the disparaging provision is content-based discriminatory, in addition to viewpoint-discriminatory. Additionally, the Federal Circuit came to the determination that even though trademarks inherently deal more with commercial speech versus expressive speech, that when the government cancels a mark under the disparaging provision, it is affecting more of the expressive aspects of speech and not the commerciality of it. Therefore, the Federal Circuit found that if the disparaging provision is not found to be viewpoint discriminatory (in light of a higher court potentially overturning parts of this case) that it must be content-based discriminatory and must survive strict scrutiny unless an exception applied.

https://en.wikipedia.org/wiki/In_Re_Tam#Issue

The Supreme Court's opinion is expected in June.

A podcast discussing the issues is available here.

[Okeefenokee]

IT'S WORKING!

[de officiis]

Packingham v. N.C.

Police arrested Durham, N.C. resident and convicted sex offender Lester G. Packingham, Jr. after he posted a message praising God on Facebook.

Now, the Supreme Court will weigh Packingham’s challenge to the North Carolina law that bans registered sex offenders from visiting online social networking sites that could be frequented by minors.

It’s a tricky case, requiring a balance between free speech and public safety, the short-handed court on Monday must sort through Packingham’s claim that the Internet access-restricting law adopted by North Carolina in 2008 violates the First Amendment. . . .

“Some of the logical paths to the court’s opinion could have considerable implications,” noted UCLA School of Law Professor Eugene Volokh.

... the North Carolina law forbids registered sex offenders from accessing “commercial social networking Web sites” that permit minors to become members. The law specifies what it means by “social networking,” to cover sites that allow communication among users and allow creation of profiles that can include photos or names, among other requirements.
...
A 21-year-old college student at the time, Packingham was originally indicted in Cabarrus County on two counts of statutory rape of a 13-year-old. He subsequently pled guilty to a charge of taking indecent liberties with a child. . . .

Packingham was off probation, but still on the sex offender registry, when he took to Facebook in April 2010 to celebrate the dismissal of a traffic ticket.

“Man God is good!” Packingham’s post declared. “No fine, no court costs, no nothing spent.....praise be to GOD, WOW! Thanks JESUS.”
...
The case now turns on several crucial issues, including Packingham’s claim that the law goes too far and effectively isolates people from the primary means of modern communication. The law’s reach is open to dispute.

“The statute excludes registrants from the central platforms where, today, any North Carolinian can interact with his elected representatives, obtain a free online education, and find gainful employment,” Packingham’s attorneys at the Stanford Law School Litigation Clinic stated in a brief.

Stein, the North Carolina attorney general, countered that the law “leaves open vast other options on the Internet, including adult-only social networking sites,” as well as “government sites (and) commercial sites . . ."

Stein further argues that the state law does not target any particular speech content, and so deserves more tolerant scrutiny from judges looking for potential First Amendment violations.

[TheReal_ND]

Stein further argues that the state law does not target any particular speech content, and so deserves more tolerant scrutiny from judges looking for potential First Amendment violations.

Stein probably doesn't realize that this is a matter of state discretion concerning how sex offenders are allowed to use social media.

[SuburbanFarmer]

Stein further argues that the state law does not target any particular speech content, and so deserves more tolerant scrutiny from judges looking for potential First Amendment violations.

Stein probably doesn't realize that this is a matter of state discretion concerning how sex offenders are allowed to use social media.

That law basically bans them from the internet.
Unenforceable.

Further, as we know, a "sex offender" could mean anything down to a 20-year old conviction for statuatory rape, or even a false accusation.
Cruel and unusual.