Tag Archives: free speech

Massie is Disappointing

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The House of Representatives passed a resolution condemning antisemitism on college campuses by a vote of 396-23.

A single Republican—Congressman Thomas Massie (R, KY)—was one of the 23 voting against the resolution. He posted his rationalization on X:

Free speech means protecting speech you don’t like, not just speech you do like.
Also, who defines antisemitism?

This is a mindless quibble. The resolution did not ban any speech, or much less antisemitic speech, however antisemitism might be defined or by whom; it only decried it. Which is itself an exercise in free speech.

Worse, quibbles of this nature—and Massie knows better; as a talented and successful politician, words are his stock in trade—are dangerous, diluting as they do the serious nature of free speech, including the free speech right to speak against others’ speech, and including applying consequences to others that don’t prevent them from continuing to speak. Even if those others don’t like it.

The 9th Circuit Got This One Right

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A recent Wall Street Journal opinion concerned the question of when, or whether, a political figure who creates a personal social media account(s) can bar members of the public from interacting with those accounts. In

Michelle O’Connor-Ratcliff and TJ Zane, elected school board members in California, used personal Facebook and Twitter accounts they created while running for office to campaign and inform constituents about education news. The officials blocked two parents for making “repetitious and non-responsive comments” on their pages.

In O‘Connor-Ratcliff v Garnier, the 9th Circuit said the two board members could not do that.

The panel held that, under the circumstances presented here, the Trustees acted under color of state law by using their social media pages as public fora in carrying out their official duties. The panel further held that, applying First Amendment public forum criteria, the restrictions imposed on the plaintiffs’ expression were not appropriately tailored to serve a significant governmental interest and so were invalid.

And

The protections of the First Amendment apply no less to the “vast democratic forums of the Internet” than they do to the bulletin boards or town halls of the corporeal world. … When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them.

The editors generally disagreed with this ruling, and they closed their piece with this bit.

Americans have many platforms to criticize public officials without invading their personal social-media pages.

That’s plainly true. So, too, is the related: elected politicians (the editors seem to have subsumed—erroneously—unelected bureaucrats into the term “public officials,” whereas the court’s ruling plainly concerned only elected officials) have many platforms with which to describe, and to interact with their constituents regarding, their political and official doings without using their so-called personal accounts to do so and then limiting their constituents’, and the public-at-large’s, ability to respond and to petition [them], whether courteously or rudely.

I’ll go one farther than did the 9th. It’s not possible for an elected government official to have a personal social media account. An elected official represents his constituents at all times of the day and night, every day and night of every year he holds office, for all that as a practical matter, he takes time away from his duties to rest and recreate. From that, it’s impossible for him to have a non-public social media account so long as he holds elected office.

The 9th got this one right.

The Circuit Court’s ruling can be read here.

Bad Mistake

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Federal DC District Judge Tanya Chutkan, who is presiding over former President and current Presidential candidate Donald Trump’s (R) trial on “election charges,” has issued a gag order limiting what Trump is allowed to say on matters associated with that trial. Her gag order should be found, on appeal, to be strongly unconstitutional—based on Chutkan’s own characterization of her order.

His presidential candidacy does not give him carte blanche to vilify public servants who are simply doing their jobs[.]

Trump’s status as a Presidential candidate is wholly irrelevant to this. Trump’s status as an American citizen is.

Here is what the Right to Petition Clause of the First Amendment of our Constitution says:

Congress shall make no law…abridging…the right of the people…to petition the Government for a redress of grievances.

Chutkan’s public servants are, most assuredly, Government officials, and Citizen (and Presidential candidate) Trump, most assuredly, is allowed to petition them, including through criticism, without regard to how prettily or rudely he couches his phrases.

That same Amendment also has this Free Speech Clause:

Congress shall make no law…abridging the freedom of speech

Citizen (and Presidential candidate) Trump, most assuredly, is allowed to speak about, as well as to, those same public servants, (and any other person, Government official or not) whether he does so with pretty words that suit Chutkan’s personal preference or with plainer words.

Chutkan’s characterization is her motive for issuing her gag order, and that motive disqualifies her order on its face: it was issued in bad faith, solely to satisfy her personal definition of propriety. It has nothing to do with any material or potentially prejudicial impact on the ongoing case, which is the sole reason for issuing any gag order.

Choosing not to Understand

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The 5th Circuit Court of Appeals has broadened an existing injunction that bars various Federal agencies from colluding with social media to censor speech to include the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency. The court wrote, in part,

CISA used its frequent interactions with social-media platforms to push them to adopt more restrictive policies on censoring election-related speech. And CISA officials affirmatively told the platforms whether the content they had “switchboarded” was true or false….
Thus, when the platforms acted to censor CISA-switchboarded content, they did not do so independently. Rather, the platforms’ censorship decisions were made under policies that CISA has pressured them into adopting and based on CISA’s determination of the veracity of the flagged information. Thus, CISA likely significantly encouraged the platforms’ content-moderation decisions and thereby violated the First Amendment[.]

Here’s the Federal government’s overt decision to not understand the matter of free speech as it appeals the ruling to the Supreme Court [paraphrased by Fox News]:

the government faced “irreparable harm” because [5th Circuit Federal Judge Terry, who ordered the first injunction] Doughty’s order may prevent the federal government from “working with social media companies on initiatives to prevent grave harm to the American people and our democratic processes.

This is, to use the legal jargon’s term, a steaming crock. The order in no way bars the Federal government—its bureaucrats and its political appointees—from working with social media companies. It only bars the Federal government’s from defining what speech constitutes “grave harm,” and it bars those personnel from pressuring social media to implement those definitions and then to censor speech based on those definitions.

The order in no way bars the Federal government’s personnel from working with social media companies to publish, also (not instead of), those folks’ own, answering, speech that debates the information an original speaker has offered and with which the Federal government’s bureaucrats or politicians disagree.

The Biden administration personnel know that full well; hence their conscious decision to pretend to not understand the basic principle of free speech and why the Federal government is Constitutionally barred from interfering with it. The grave harm stems from those government personnel’s attempt to disregard the First Amendment.

The 5th Circuit’s ruling can be read here.

See No…, Hear No….

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Differing opinions, that is, along with actual facts. Apparently, Progressive-Democratic Party politicians are so weak of character that their Party leader, President Joe Biden, feels constrained to protect their tender eyes and ears.

The White House is prohibiting senior administration officials from traveling for international energy engagements that promote carbon-intensive fuels, including oil, natural gas and coal, Fox News Digital has learned.

The bar came from Biden’s National Security Council because, you know, differences are anathema to Biden’s concept of security. Which isn’t far wrong, given Biden’s assessment of the fragility of the players in his Cabinet.