Wednesday, August 16, 2017

Odd statement from the ACLU of California: ‘White Supremacist Violence is Not Free Speech’

The three California ACLU chapters put out a joint ACLU of California Statement: White Supremacist Violence is Not Free Speech:

“Our country’s greatest strengths are the diversity of its people and the principles of equal dignity and inclusion that unite us all. There are troubling events planned in our state in the coming weeks. This is an incredibly painful and difficult time for millions of Californians. For those who are wondering where we stand — the ACLU of California fully supports the freedom of speech and expression, as well as the freedom to peacefully assemble. We review each request for help on a case-by-case basis, but take the clear position that the First Amendment does not protect people who incite or engage in violence. If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution. The First Amendment should never be used as a shield or sword to justify violence.

This seems like an odd statement, especially given that the context is presumably the call to rescind the permit for an “alt-right” rally in San Francisco:

Everyone, I take it, agrees that violence, white supremacist or otherwise, isn’t speech. And the First Amendment doesn’t protect people who “incite violence” in the sense of engaging in speech intended to and likely to promote imminent criminal conduct (the Brandenburg v. Ohio standard) — a category that the courts have always read narrowly, and that the ACLU has said should be read narrowly. But as I understand the traditional position of the ACLU, it is that speech and assembly must be allowed, even if violence and unprotected incitement (or threats) at the event are punished. (I’m also pretty sure that no one is legally going into San Francisco “armed to the teeth”; even the most law-abiding Californians are generally not allowed to do that.)

The question facing California government officials, as I understand it, is not whether to allow violence or constitutionally unprotected incitement. Rather, it’s whether the government can ban events — of whatever political stripe — based on a fear that the speakers or some of the attendees may engage in violence (or in unprotected incitement). The answer, under modern First Amendment doctrine that the ACLU has generally helped develop, is “no.” I would have thought that people want to know about the ACLU of California’s position on that question, and not on whether “violence” (white supremacist or otherwise) is free speech.

I asked the ACLU spokesman who sent around the statement about this:

I blog at the Washington Post site, and I’m writing something about the ACLU statement on “White Supremacist Violence is Not Free Speech.” Of course, violence of any sort isn’t free speech, but I’m wondering what the ACLU’s position is on the proposals to revoke the “alt right” rally permit in Northern California, and similar calls to ban such events. Can you tell me, please, if the statement is meant to address that, and what the ACLU’s position on that would be?

The answer I got:

This is what we have to offer for now. We will circle back with you if anything changes.

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Un-American activities

I’ve been struck by the similarity between recent calls for suppressing white supremacist speech and past calls for suppressing Communist speech. Of course, there are differences as well — there always are for any analogy — but I thought I’d note some likenesses:

  Communist speech, 1950s White supremacist speech, 2017
Calls for speakers to be fired and blacklisted ✓ ✓
Claims that the speech falls outside the First Amendment ✓ ✓
… because the speech is inconsistent with basic constitutional values ✓ (democracy, private property, free speech, religious freedom, etc.) ✓ (equality)
… because its supporters don’t support free speech rights for others ✓ ✓
… because its supporters support violence and not just peaceful change ✓ ✓
… because similar movements overseas are responsible for killing millions ✓ ✓
… because similar movements in the U.S. are responsible for various terror attacks over the decades ✓ ✓
… because this speech isn’t just speech but is itself violence ✓ (e.g., “‘words are bullets’ and the communists know it and use them so”) ✓
Loose use of the labels to taint legitimate dissenters ✓ (Communist, fellow traveler) ✓ (fascist, racist)

And indeed, in the 1950s one of the leading intellectual forces on the Court behind allowing various restrictions on Communist advocacy (Justice Frankfurter) was also willing to uphold “group libel” laws in Beauharnais v. Illinois (1952); that’s the one Supreme Court decision that authorized restrictions on racist speech, though it is widely viewed as no longer good law in light of later cases, just as some of the decisions upholding restrictions on Communist advocacy in the early 1950s are viewed as no longer good law. Similarly, Justice Jackson, though he dissented in Beauharnais, made clear that he would uphold narrowly crafted “group libel” laws, and he likewise voted to allow various restrictions on Communist advocacy. The main supporters of the rights even of Communists? Justices Black and Douglas, who also wrote the most speech-protective dissents in Beauharnais.

Communists, neo-Nazis, neo-Confederates — I can’t stand them. They are supporters of ideologies of slavery and murder. They are losers, who lost for very good reason. But their speech should be protected, I think; and the cases for stripping protection from such speech have always been very similar.

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‘No Free Speech for Fascists’ is impossible

On the other hand, “no free speech for those whom the government decides to label ‘fascists'” — now that’s possible. (Unconstitutional, but possible.)

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Libel by quotation out of context

An interesting opinion Tuesday, from a unanimous U.S. Court of Appeals for the 5th Circuit panel (Block v. Tanenhaus:

Walter Block is an economics professor … at Loyola University and is an Adjunct Scholar at the Mises Institute. He alleges that, consistent with his published writings and his self-described libertarian views, he articulated the following position during an interview with the New York Times (NYT):

Free association is a very important aspect of liberty. It is crucial. Indeed, its lack was the major problem with slavery. The slaves could not quit. They were forced to “associate” with their masters when they would have vastly preferred not to do so. Otherwise, slavery wasn’t so bad. You could pick cotton, sing songs, be fed nice gruel, etc. The only real problem was that this relationship was compulsory. It violated the law of free association, and that of the slaves’ private property rights in their own persons. The Civil Rights Act of 1964, then, to a much smaller degree of course, made partial slaves of the owners of establishments like Woolworths.

Block alleges that the NYT misrepresented his statements in an article that attributed racist views to libertarian scholars and discussed how ties with libertarian thinkers would impact Senator Rand Paul’s potential presidential candidacy.

The NYT article quoted Block twice, first as “[o]ne economist” and later by name as “Walter Block.” The first quotation appeared in the immediate context of the statement that some Mises Institute scholars “have championed the Confederacy.” It noted that “[o]ne economist, while faulting slavery because it was involuntary, suggested in an interview that the daily life of the enslaved was ‘not so bad—you pick cotton and sing songs.’” Roughly eight pages or fifty-three paragraphs later, the article quoted Block by name in a paragraph that read as follows:

Walter Block, an economics professor at Loyola University in New Orleans who described slavery as “not so bad,” is also highly critical of the Civil Rights Act. “Woolworth’s had lunchroom counters, and no blacks were allowed,” he said in a telephone interview. “Did they have a right to do that? Yes, they did. No one is compelled to associate with people against their will.”

This paragraph appeared in the context of a discussion about the links between the Paul family and the Mises Institute, which questioned Senator Rand Paul’s ability to distance himself from unpopular positions taken by Mises Institute scholars. [Footnote: The immediate context of this paragraph associates Block with one scholar who opposed Brown v. Board of Education and with another scholar who applauded a KKK member’s “right-wing populism.”]

Block sued the NYT ….

A statement is actionably false if it “would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Inaccuracy in a quotation is not actionable “unless the alteration results in a material change in the meaning conveyed by the statement.” On the other hand, “an exact quotation out of context can distort meaning, although the speaker did use each reported word.” Thus, falsity is determined not only by the words in a purported quotation, but also “by reference to the meaning a statement conveys to a reasonable reader.” …

Block argues that, although he used the words attributed to him by the NYT, there is a genuine issue of material fact as to whether the NYT distorted the meaning of his statements by omitting crucial context. According to Block, the NYT communicated that he did not object to chattel slavery and implied that he was a racist when it stated, “Walter Block, an economics professor at Loyola University in New Orleans who described slavery as ‘not so bad,’ is also highly critical of the Civil Rights Act.”

Block states that he used the words “not so bad” in a context that showed he was assessing the counterfactual and ahistorical scenario of slavery in the absence of any coercion rather than chattel slavery. He points out that the deprivation of personal autonomy is antithetical to the libertarian views he expressed. In sum, Block believes that his statements underscored the importance of free association and condemned chattel slavery precisely because it was involuntary, but that the NYT quoted him out of context to make it appear that he considered chattel slavery “not so bad.”

Because the omission of context can distort the meaning of a direct quotation, there is a genuine fact issue as to whether the article misrepresented Block’s statements. [See, e.g.,] Price v. Stossel (9th Cir. 2010) (holding that there was a jury question as to falsity when a television broadcast used video clips of a pastor describing a wealthy man with a spiritually unfulfilled life because the original context of the pastor’s statements indicated he was discussing a hypothetical individual but the context in the broadcast suggested he was discussing himself); Sassone v. Elder (La. 1993) (suggesting that there was a jury question as to falsity when a television broadcast used a district attorney’s allegedly hypothetical statement in a context that suggested he was assessing the actual conduct of a specific criminal defendant, but ultimately deciding on other grounds). If, as Block has pleaded, he stated during the interview that slavery was “not so bad” except for its involuntariness, a reasonable jury could determine that the NYT’s decontextualized quotation falsely portrayed him as communicating that chattel slavery itself was not problematic—exactly the opposite of the point that he says he was making.

The NYT offers three arguments to the contrary, but none are sufficient to merit dismissal at this stage in the litigation. First, the NYT argues that it was correct in stating that Block described chattel slavery as “not so bad.” According to the NYT, his reference to picking cotton and singing songs “leaves no room for doubt” that he was describing chattel slavery.

However, stating that cotton-picking and song-singing are “not so bad” in themselves, if done without coercion, is not at all the same thing as saying that chattel slavery was “not so bad.” Chattel slavery by definition involves coercion and being treated as the property of another, and Block alleges that the context of his original statement indicated his view that coercion is unacceptable and violates people’s rights as belonging to themselves.

If the context of his statement is what he alleges, Block’s statement made clear that he would only describe slavery as “not so bad” to the extent that, unlike chattel slavery, it was voluntary. Accordingly, we reject the argument that Block’s references to cotton and songs conclusively demonstrate that the NYT was correct in stating that Block considered chattel slavery to be “not so bad.”

Second, the NYT argues that it communicated Block’s objection to coercion by stating earlier in the article that an unnamed economist, “while faulting slavery because it was involuntary, suggested in an interview that the daily life of the enslaved was ‘not so bad … .’” This statement could be relevant to the meaning that the article as a whole communicates to a reasonable reader about Block’s views on slavery.

However, the statement does not mention Block by name and appears roughly eight pages before the paragraph of which Block complains. Thus, it could be that a reasonable reader would not associate the two passages and would not infer that Block, who “described slavery as ‘not so bad,’” is the same person as the unnamed economist who “fault[ed] slavery because it was involuntary.”

In fact, the president of the university at which Block teaches failed to draw this inference and wrote a public letter criticizing Block for “claim[ing] that chattel slavery ‘was not so bad’” and stating that Block had contradicted his own libertarian principles by suggesting that “slavery enforced against someone’s free will” was acceptable. The record also contains a police report indicating that, after the article’s publication, two young men approached Block on the campus at which he teaches and told him, “You’re the [expletive] who said slavery was okay. We’re gonna getcha.” We conclude there is a fact issue regarding the meaning that the article conveys to a reasonable reader.

Third, the NYT argues that Block’s pleaded truth would have had the same “effect on the mind of the reader” as the message that the article conveyed. The district court itself stated that both the NYT’s portrayal of Block and Block’s own statements, accurately conveyed, would “ignite fury” in readers. However, the “effect on the mind of the reader” does not refer to the emotions that a statement incites. Rather, it refers to “the meaning a statement conveys to a reasonable reader.” …

Because Block is a public figure, the fault element of his claims requires proof of actual malice, which is defined as knowledge of falsity or reckless disregard for the truth. Block argues that there is a fact issue as to actual malice wherever a news source materially alters the meaning of a quotation. See Masson v. New Yorker Magazine, Inc. (1991) (holding that there is a fact question as to actual malice where a news source alters a quote in a manner that changes its meaning).

The NYT does not dispute this characterization of the law. Rather, it contends that it did not materially alter the meaning of the quotation. Similarly, the district court based its determination that Block failed to create a fact issue as to actual malice on its view that the NYT did not change the meaning of the quotation but accurately communicated Block’s views. As discussed above, there is a genuine issue of material fact as to whether the NYT altered the meaning of the quotation. Accordingly, the district court’s determination and the NYT’s argument depend on a factual premise that has not yet been established, and dismissal for failure to create a fact issue as to actual malice was premature.

Seems right to me: Courts should be hesitant to find that a factually accurate quote is libelous, but words only have meaning in context, and if a quote is taken far enough out of context, it may falsely convey the speaker’s actual meaning even if the speaker literally said those words.

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Can private employers fire employees for going to a white supremacist rally?

White nationalists carry torches on the grounds of the University of Virginia. (Alejandro Alvarez/News2Share via Reuters)

That turns out to depend on the state where the employee is employed. (Note that I’m speaking here of firing for attending such a rally or speaking at it, not engaging in criminal violence connected with it.)

1. The First Amendment applies only to government employers; it doesn’t apply to nongovernmental entities (whether or not those entities have government funding or contracts). Let’s focus then on private employers who fire such employees based on their own judgment (not because of some pressure from the government, which may well be unconstitutional).

2. Private employers are, of course, bound by various statutes. But federal employment law bans discrimination based on race, religion, sex, national origin, age, disability and various kinds of labor-union-related activity. It doesn’t ban discrimination based on political affiliation.

3. A substantial minority of states, though, do ban discrimination based on political activity, especially off-the-job political activity; some cities and counties do as well. I cataloged them in 2012 in my article “Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation“; since then, Utah has enacted a similar statute as well.

a. Some statutes ban employers from firing employees for “political activity,” including ideological advocacy generally and not just election-related politics. California, Colorado, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, Utah and West Virginia seem to fall in this category; there are similar ordinances in Seattle and Madison, and a New Mexico statute may also fit here, though it’s a bit more ambiguous.

b. Connecticut protects employees from retaliation for their speech more broadly.

c. Colorado and North Dakota ban employers from firing employees for any off-duty lawful activity; that would cover speech as well.

d. New York bans employers from firing employees for off-duty “recreational activities”; it’s not clear to what extent going to rallies would qualify.

e. Still other statutes apply to belonging to, endorsing or affiliating with a political party, something that probably wouldn’t cover ideological rallies such as this — we see that in D.C., Iowa, Puerto Rico, the Virgin Islands, Broward County (Fla.), and Urbana (Ill.).

f. Illinois, New York and Washington laws apply to election-related activities, which again wouldn’t apply just to rallies. (In New York, this is in addition to the recreational activity statute; some states, such as New York, have two statutes that protect two different kinds of activities.)

g. Some states have laws limited to signing election-related petitions, or giving campaign contributions: Arizona, D.C., Georgia, Iowa, Minnesota, Missouri, Ohio, Oregon, Washington, and (the campaign contributions laws) Louisiana, Massachusetts, and Oregon; Hawaii, Idaho, Kentucky, Tennessee, West Virginia, Wyoming, and Guam might also fit this category.

4. Some of these laws actually make it a crime to fire an employee on these grounds; I think all would likely authorize civil lawsuits.

5. Some apply to refusals to hire as well as to firing; others don’t.

6. What if the employer concludes that the off-the-job speech has badly hurt morale or relationships with customers? Some of the statutes expressly provide that the employer has some latitude in such cases (though it varies statute by statute, and such exemptions are generally fairly narrow).

Others seem to protect all political activity, even highly controversial activity. The Louisiana Court of Appeal, for instance, has held that the ban applies even when “the ‘business’ justification for firing plaintiff in this case is a real one,” such as that plaintiff’s political advocacy “would antagonize persons who could withdraw business from plaintiff’s employer.” And this is consistent with other antidiscrimination laws: For instance, an employer can’t fire an employee based on the employee’s religion even when coworkers or customers very much disapprove of that religion, and threaten to quit or boycott the company.

7. In principle, such state laws could be preempted by federal law, and I’ve heard some suggest that such firings might be called for by workplace harassment law, on the theory that the very presence of a known white supremacist or neo-Nazi employee would create a “hostile work environment” for nonwhite or Jewish employees. But I don’t think that would be a viable defense for the employer.

I do think that hostile environment harassment law can sometimes pose serious First Amendment problems (because it involves the government pressuring private employers to restrict speech in the workplace based on its content and viewpoint); and some, though by no means all, of the few courts that have considered the issue have likewise said that the First Amendment may preempt hostile environment harassment claims in some situations. But whatever one thinks of that debate, I’ve never seen any case that holds employers liable for a supposedly hostile environment created by an employee’s off-the-job political speech (at least when the speech isn’t specifically targeted at the employee’s particular coworkers). There’s thus no conflict between federal harassment law and these state speech protection laws, at least when it comes to off-the-job speech.

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Judgment or judgement?

A few days ago, I wrote about a document sent to Google purporting to be a court’s “judgement entry” — but which the judge, when I contacted him, told me that he had never entered. (The person who appears to have sent the document to Google claims that the document was just a proposal of his, but that’s not how it was framed when it was sent.)

This then led to a discussion in the comments about whether the spelling “judgement” was a giveaway, because “judgment” is the standard form. And that in turn led to the following from a commenter:

Judgement is the accepted spelling in British English. Webster first recorded the misspelling of judgment in his 1828 American Dictionary of our English Language, and Americans have been misspelling most of our true English words since then. If you’re an avid reader, you’ve likely see it spelled two different ways across various sources and not many writers are sure when to use which one. There is no demonstrable difference of sense or function between them, meaning both spellings of the word can be used interchangeably. I really do not like the way that judgment appears on the page. I much prefer judgement, but if you like judgment, you won’t be judged in the UK or the US.

Here’s my sense of the matter.

1. In American English, “judgment” vastly predominates. “Judgement” is listed in dictionaries (see, e.g., the American Heritage Dictionary), but “judgment” has been more than 10 times more common in recent years. The ratio used to be even more lopsided:

(I love Google Ngrams; click here to see a larger image.)

2. In American legalese, “judgment” even more sharply predominates. Looking just at Aug. 1 to Aug. 15 of this year, “judgment” wins 5486 to 91. When the difference is so lopsided, using the minority spelling (“judgement”) will be jarring to many readers, and will make many readers think less of you (whether rightly or not).

3. In British English, “judgment” still predominates, but not by as much — in recent years, “judgment” has been slightly less than twice as common as “judgement”:

4. According to the Oxford English Dictionary, “judgment” was the dominant spelling in British English generally from the late 1600s until the 1800s, and remains the dominant spelling when referring to court decisions:

The word is found in spellings with -dgm- from the early 16th cent., and by the late 17th cent. judgment had become the prevailing spelling, although judgement was still commonly found. Kersey (1702) is an unusually early example of a dictionary in which the headword form was given as judgement. During the 19th cent. the form judgement gained in frequency in British contexts, and is now the usual spelling in general British use, but judgment has remained the standard spelling in British legal contexts when used to refer to a judicial decision (see sense 8), as well as in U.S. usage.

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First Amendment banned from D.C. Metro — literally!

An advertisement at the Judiciary Square Metro Station in 2013. (Marlon Correa/The Washington Post)

In November 2015, the Washington Metropolitan Area Transportation Authority (WMATA), operator of the Washington public transit (bus and Metro) system, amended guidelines regarding commercial advertisements that it would accept for Metro cars and Metro stations.  The guidelines contain 14 numbered restrictions, including these four:

  • Guideline 4:  Prohibiting “medical and health-related messages” unless they are from “government health organizations,” or if “the substance of the message is currently accepted by the American Medical Association and/or the Food and Drug Administration.”
  • Guideline 9: Prohibiting “advertisements intended to influence members of the public regarding an issue on which there are varying opinions.”
  • Guideline 13: Prohibiting “advertisements that support or oppose an industry position or industry goal without any direct commercial benefit to the advertiser.”
  • Guideline 14: Prohibiting “advertisements that are intended to influence public policy.”

Ostensibly applying these guidelines, WMATA made some rather peculiar decisions, refusing, for example, to accept advertisements from:

  • Right-wing provocateur Milo Yiannopoulos promoting his new book, “Dangerous” (Guideline 14: intended to influence public policy).
  • The animal rights group PETA urging readers to “Go Vegan” and to “De-Calf your Coffee” (Guideline 13: opposing an industry position/goal without direct commercial benefit to PETA).
  • Carafem, a nonprofit organization that provides abortion care and family planning services through a network of health centers, promoting the “10-Week After Pill” (i.e. medication to induce miscarriage within the first 10 weeks of pregnancy), available at its clinics (Guideline 4: health-related message not approved by the government, the AMA, or the FDA).

And, rather astonishingly, WMATA rejected an ACLU ad consisting of nothing but the text of the First Amendment (in English, Spanish and Arabic) alongside the ACLU logo (Guideline 9: intended to influence the public “regarding an issue on which there are varying opinions” (!!))

[The rejected ads can all be seen here.]

The ACLU recently filed suit on behalf of itself, Yiannopoulos, Carafem and PETA in D.C. federal district court arguing that the WMATA policy is a violation of the First Amendment both on its face and as applied to the plaintiffs. [The complaint is posted here.]*

Note * Apparently, the ACLU has taken some heat from its supporters for including Yiannopoulos as a co-plaintiff. That is unfortunate; the ACLU’s habit of taking the position that speech — even speech we might regard as offensive, from people we might regard as offensive — is worthy of protection may be maddening at times, but it is a highly principled one, and is itself worthy of support and protection.

The plaintiffs, surely, have a strong case. On what possible grounds can WMATA defend rejecting an advertisement consisting of the text of the First Amendment? Who decides whether any particular issue is one “on which there are varying opinions,” and on what basis is that decision made? Why should PETA’s non-commercial message (“Don’t eat meat”) be prohibited while Burger King’s commercial message (“Eat more meat”) is allowed?

WMATA will undoubtedly rely heavily on Lehman v. City of Shaker Heights (1974), a case in which the Supreme Court upheld (5 to 4) a ban on all “political advertising” in the Shaker Heights transit system.  The court there rejected the notion that the rail and bus cars constitute “a public forum protected by the First Amendment” with a “guarantee of nondiscriminatory access to such publicly owned and controlled areas of communication.”

“The streetcar audience is a captive audience. It is there as a matter of necessity, not of choice. … Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights. The car [advertising] space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles.

The level of scrutiny such governmental action would receive would be low: the choices must simply be “reasonable,” and “the policies and practices governing access to the transit system’s advertising space must not be arbitrary, capricious, or invidious.”

The ACLU’s complaint argues that the guidelines constitute “viewpoint discrimination” of a kind that was not present in Lehman — allowing messages that reflect the AMA’s (or the government’s) views on health-related matters, or those that reflect commercial positions on “industry goals,” while rejecting advertisements reflecting other viewpoints — requires the court to engage in a more exacting First Amendment analysis.

They may well succeed in that argument. Even if they don’t, though, it’s hard to see a a court upholding WMATA’s decision here even under the relaxed “reasonableness” standard. To my eye, these certainly do look like the kind of “arbitrary, capricious, or invidious” decisions that, even under a generous reading of Lehman, WMATA, as a state actor, has to steer clear of.

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