We’re divided in new ways over our core First Amendment freedoms

First Amendment

The least-recognized of the amendment’s five freedoms — assembly and petition — are facing perhaps the most-immediate challenges, though freedoms of press, speech and religion don’t escape unscathed.

At year’s end, First Amendment issues are as controversial and multi-faceted as anything in our fractured, divided society.

The least-recognized of the amendment’s five freedoms — assembly and petition — are facing perhaps the most-immediate challenges, though freedoms of press, speech and religion don’t escape unscathed.

Most immediately, a Black Lives Matter activist faces a lawsuit from a Baton Rouge, La., police officer who blamed the activist for injuries he suffered at a 2016 protest over the police killing of a black man. The suit doesn’t claim the activist threw or even encouraged the throwing of a rock; rather, it seeks damages because the man led others to block a highway where the violent incident occurred.

A recent Washington Post story notes that Rep. Jim Banks (R-Ind.) plans to introduce legislation to “hold protesters arrested during unpermitted demonstrations liable ‘for police overtime and other fees’” around such demonstrations.

In more than a dozen states in recent years, from Oregon to Florida, lawmakers have faced proposals to increase penalties for obstructing streets and highways and to limit the financial liability of drivers whose cars injure protesters. In Arizona, a failed 2017 proposal rooted in that state’s racketeering laws would have permitted the arrest and seizure of homes and other assets of those whom simply plan a protest in which some act of violence occurs.

In a similar “financial penalty” vein, several major news operations face defamation lawsuits seeking massive damages over their coverage of news events — claims certain to roil public debate once again about the role, credibility and performance of the nation’s free press. Critics also say such lawsuits — even if unlikely to succeed — are effectively attempts to chill reporting and intimidate corporate owners.

Prominent among those filing the lawsuits is Rep. Devin Nunes, (R-Calif.), who wants $435 million dollars from CNN for a report he says falsely linked him to events in the ongoing Ukraine-Biden investigation controversy. He also is seeking $150 million from The Fresno Bee over a report involving a workplace scandal at a winery in which Nunes has a stake, $75 million from Hearst over an Esquire article regarding a family farm in Iowa, with the claim the magazine has an “axe to grind against him” and a $250 million lawsuit against Twitter for what he says is its intentional effort to downplay conservative content as well as two parody accounts that mock him.

In the introduction to the most recent lawsuit, Nunes says “CNN is the mother of fake news. It is the least trusted name. CNN is eroding the fabric of America, proselytizing, sowing distrust and disharmony. It must be held accountable.”

Moving to another area of contention, campus free speech issues continue to vex collegiate communities, from complaints that conservative speech and views of faculty and staff are stifled, to a move by President Trump that he says will fight against anti-Semitism but that critics say is really intended to punish student or faculty advocacy for the BDS Movement — “boycotts, divestiture or sanctions” — aimed at ending international support for Israel.

Much like the campus controversies, interpretations of religious liberty regarding public policy continued to swirl through the year. As the Supreme Court’s 2019-20 term began in October, at least eight cases touching on faith issues — the most in recent years — were scheduled to be heard. A number involved LGBTQ rights regarding employment or health benefits. While some cases do not directly involve religious organizations, the court’s decisions would affect arguments over whether religious beliefs can negate claims of discrimination on the basis of sexual preference.

An expansion of First Amendment protection for commercial speech (which at one time did not exist in law) continues, as courts at least give serious consideration to a variety of business arguments. In several instances, corporate lawyers are arguing that to force companies to make certain disclosures about product content or sources is an unacceptable requirement that violates the First Amendment by forcing companies to “speak.”

Other cases involve claims of free speech protection for hospitals facing a Trump administration rule requiring disclosure of secret rates. Industry groups filed a lawsuit earlier this month, also claiming it is “compelled speech” in violation of the First Amendment.

New technology continues inexorably to challenge long-standing law. In a mix of free speech and public safety concerns, a Texas man was sentenced in February to eight years in prison for using a 3-D printer to construct a plastic handgun and ammunition in violation of a prior court order against owning of a firearm. Advocates for the so-called “3-D gun” argue the computer instructions in such 3-D printing projects are “speech” and not subject to federal or state firearms regulations. Government officials say existing criminal law on issues such as possession and manufacturing should allow them to regulate — or ban — making or owning such weapons.

Government officials and social media critics continue to hammer operations such as Facebook and Twitter — which are not government entities, but private concerns not governed by the First Amendment — with regulatory threats over political advertising, hate speech and evidence of foreign election interference.

Threatened action ranges from using anti-trust legislation to break up the largest social media companies, to removal of what is known as “Section 230” protection for companies (from the Communications Decency Act of 1996) that now permits them to avoid legal responsibility for content they simply carry, rather than material they create or significantly edit.

Opponents of watering down or removing “Section 230” protection say either action would, in effect, end the web as we know it by shutting down the flow of information to the mere trickle of items or articles that could be independently verified by internet providers, or to bland factual accounts devoid of opinion or interpretation.

The year 2019 may well go down in First Amendment history as a turning point, in which those working to limit or control information avoided direct confrontations over First Amendment rights and turned to tactics designed to make it much more difficult, much too costly or even financially ruinous to exercise those rights.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at [email protected], or follow him on Twitter at @genefac.

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