Path: ...!eternal-september.org!feeder3.eternal-september.org!news.eternal-september.org!.POSTED!not-for-mail From: "Adam H. Kerman" Newsgroups: rec.arts.tv Subject: Why is free speech/press a liberal or conservative issue? Date: Tue, 4 Jun 2024 15:51:22 -0000 (UTC) Organization: A noiseless patient Spider Lines: 117 Message-ID: Injection-Date: Tue, 04 Jun 2024 17:51:22 +0200 (CEST) Injection-Info: dont-email.me; posting-host="c31329cf03b7679a65d97ce946c3fe4f"; logging-data="527707"; mail-complaints-to="abuse@eternal-september.org"; posting-account="U2FsdGVkX1/aadCP077+YG0GDN334IYWBRai1ldWLj0=" Cancel-Lock: sha1:4sn3URZ+MGNzxqS1nQ6F6k+MVD4= X-Newsreader: trn 4.0-test77 (Sep 1, 2010) Bytes: 6575 This is the United States, the only country in the world with a constitution that absolutely protects the liberties of freedom of speech and of the press. If anyone jumps in to say that free speech isn't absolute and quotes from Schenck, you will be shot. Why can't we, as Americans, simply agree that it's a good thing? But there sits qualified immunity lingering in the background. It never gets addressed and it still manages to take away tools a plaintiff might use to prevail in court in a practical sense to be made whole after his speech was chilled. Two cases have been in the news of late, and the alignment of political allies and opponents is surreal. ACLU, when it purely protected constitutional liberties, has been criticized over the years for ignoring Second Amendment issues. This time, its client was National Rifle Association. National Rifle Association of America v. Vullo New York state commissioner Maria Vullo, whose department regulates banks and insurance companies, had long been at odds with NRA over their efforts to find insurance for gun owners that would cover torts from injury by firearm. In 2017, three insurance companies settled with the department by paying fines and agreeing not to sell the insurance coverage NRA endorsed as some of what NRA endorsed was in violation of state law. I vaguely remember this from seven years ago but don't recall what the legal issue was. After the massacre at Marjorie Stoneman Douglas high school in Parkland Florida in 2018, NRA sued Vullo for coersion of banks and insurance companies she regulated not to do business with NRA. I'm a little unclear. They needed to file in federal court because of the First Amendment issue, but was this so they could pursue te suit in state court? Or is it entirely in federal court? NRA's suit was allowed to proceed at district court. 2nd Circuit reversed. Vullo's conduct wasn't chilling enough of NRA's speech to be unconstitutional. 2nd Circuit ALSO addressed the issue that the underlying law Vullo may have violated was unclear and she could be entitled to qualified immunity. At the US Supreme Court, NRA won on whether Villo's conduct had a chilling effect on NRA's speech. Sotomayor wrote the opinion for a unanimous court, with separate concurring opinions each from Gorsuch and Jackson. Here's where it's not entirely a clear-cut victory. Sotomayor said 2nd Circuit misapplied the test (which I guess is four prong) of Bantam Books v. Sullivan (1963). In Gorsuch's concurring opinion, he says that the tests are guideposts and not absolute. If Gorsuch is right, then the Supreme Court may still be giving guidance to lower courts that is too fuzzy. Gorsuch said the key question is whether the plaintiff "has plausibly alleged conduct that, viewed in context, could reasonably be understood to convey a threat of adverse government action in order to punish or suppress the plaintiff's speech." I don't know what the four-pronged test was but Gorsuch appears to be giving clear guidance to lower courts. Jackson emphasized the order in which a court must apply reasoning. First determine if government action was coercive. Then determine the effect it had on speech. Then there are different doctrines to apply. Oh dear gawd. If her opinion is used as guidance, then proving coercive action will simply not be enough to prove that speech was chilled. She's leaving the door open for a judge to make a finding of coercion but broad discretion to apply other doctrine in considering whether speech was chilled enough that it was suppressed. How the hell can a plaintiff win? The Supreme Court, once again, did not take up the issue of qualified immunity, leaving it to the Second Circuit on remand. https://amylhowe.com/2024/05/30/supreme-court-rules-for-nra-in-first-amendment-dispute/ The other case lost at Fifth Circuit, entirely on qualified immunity grounds. The Fifth Circuit is filled with activist conservative judges, although as a technicality, I suppose applying qualified immunity isn't necessarily judicial activism if there's no attempt to expand its application. Within the Fifth Circuit are a few libertarian judges appointed by Trump who were in the minority. In dissent, "Priscilla Villarreal was put in jail for asking a police officer a question," Judge James Ho, who was appointed to the court by President Trump, wrote in a dissenting opinion. "If that is not an obvious violation of the Constitution, it's hard to imagine what would be." Priscilla Villarreal, engaging in citizen journalism (because she has a well-read blog and isn't a newspaper reporter), was arrested by police for asking questions and reporting. Villarreal v. City of Laredo She upset police by asking a source for more information on several police matters. In 2017, she was arrested and charged with a felony because she solicited nonpublic official information, under a statute intended to thwart corruption and kickbacks in public purchasing. Her petition to have charges thrown out was granted. The state did not appeal, letting the criminal case drop. She then sued for a violation of her rights under the First and Fourth amendments. She's represented by libertarian Foundation for Individual Rights and Expression. At district court, her suit was dismissed on qualified immunity grounds. A three-judge panel of the Fifth Circuit ruled in her favor, but when the case was heard en banc by the Fifth Circuit, she lost again on qualified immunity. The Supreme Court hasn't yet granted cert but the case been appealed. https://www.cjr.org/the_media_today/priscilla_villarreal_texas_first_amendment_lawsuit.php