Archive for the ‘Uncategorized’ Category

Victory for Academic Freedom: ‘Human Heredity’ Professor Receives $100,000 Settlement

Monday, July 26th, 2010

Nearly three years after she was terminated over her protected classroom speech, the San José/Evergreen Community College District (SJCCD) has agreed to pay adjunct professor June Sheldon $100,000 in lost earnings in exchange for dismissal of her First Amendment lawsuit.

Sheldon's trouble began in the summer of 2007 when, in her Human Heredity course at San José City College, she led a brief discussion on sexual orientation. The topic was covered in the course readings. When a student asked her to comment on the nature/nurture debate regarding sexual orientation, Sheldon noted the complexity of the issue, citing examples from the textbook as well as relevant research findings. A student complained a month later that the material was "offensive and unscientific."

Dean of Mathematics and Science Leandra Martin then launched an investigation into Sheldon's comments by surveying other science faculty about the state of the nature/nurture debate among experts. All of the faculty members agreed that the nature/nurture question was complex, but Martin still concluded that Sheldon was teaching non-scientific material as science. Martin then withdrew SJCCD's offer for her to teach further courses. On December 18, 2007, SJCCD Vice Chancellor of Human Resources Anita Morris wrote Sheldon a termination letter...

‘Indiana Daily Student’ on FIRE’s Big Ten Spotlight Ratings

Monday, July 26th, 2010
The Indiana Daily Student, the student newspaper for Indiana University-Bloomington (IU), published an article this week about the university's yellow-light rating in Spotlight, FIRE's speech code database.

The article highlights several restrictive speech policies at IU, including the policy establishing a free speech zone. Reporter Nathan Miller quotes Samantha Harris, FIRE's Director of Speech Code Research, who wrote that "The right to engage in spontaneous expressive activity is an important aspect of the right to free speech, and this policy is unnecessarily restrictive."

Miller also cites the preamble to IU's Code of Student Rights, Responsibilities, and Conduct as another yellow-light policy. This policy states that students are expected to "behave in a manner that is respectful of the dignity of others, treating others with civility and understanding." The article explains FIRE's objection to this language:
Harris' complaint with the policy is that free speech can often be offensive, and yet even the offensive speech is protected by the First Amendment to the Constitution.

"For example, it is very common for political cartoons and other kinds of social satire to be extremely disrespectful and mocking of its targets. And yet this type of expression, however much it may not 'respect ...

RNC Embraces Breitbart’s Extremism

Monday, July 26th, 2010

Last week, we were treated to an appalling spectacle in which conservative activist-journalist Andrew Breitbart launched a racially-charged attack against USDA employee Shirley Sherrod, creating a media storm and getting her fired from her job before anyone noticed that his smear was a calculated lie. Breitbart’s ploy confirmed once again his place on the extremist, reactionary, and not altogether honest end of the Right.

Maybe it would be too much to ask for the Republican establishment to repudiate (or even refudiate) Breitbart, since they stand to gain politically from his smear campaigns….but you’d think they’d be savvy enough not to publically embrace him.

You would be wrong.

Talking Points Memo got its hands on an invitation to a fundraiser RNC chairman Michael Steele is holding next month, at which Breitbart will be the guest of honor. Also attending will be California Reps. Wally Herger and Dana Rohrabacher, and Nevada gubernatorial candidate Brian Sandoval.

Sarah Palin treated us more than once this month to extremism and intolerance astounding from a leader of a mainstream political party. It’s more than a little disturbing that the party itself is so eager to join her short-sighted embrace of fear tactics and baseless smears.


Mass Protest Over Cantonese

Monday, July 26th, 2010
Plans to cut Cantonese-language broadcasts spark an outcry.

Commentary: Court ruling questions rationale for FCC’s control of TV

Monday, July 26th, 2010

What do you do when you hear foul language on television?

As for me, sometimes I cringe, sometimes I don’t. Sometimes I’m surprised, sometimes disappointed, and sometimes the words just come and go without much effect.

If I’m offended, I change the channel. But sometimes I intentionally tune to a channel knowing that I’m going to hear language that I wouldn’t want even my two adult sons to use.

And speaking of my sons, when they were younger we didn’t subscribe for a number of years to some cable channels where they would hear words, and see images, that my wife and I didn’t think they were ready to see.

Note that we made our own decisions about what to hear and see. No government instruction manual or censor involved. Well — mostly. The Federal Communications Commission has policed broadcast TV for decades in ways never permitted with other traditional media — from a now-discredited and abandoned “fairness doctrine,” to setting out times when certain words and images could not be broadcast, to limits on ownership, to must-do public service directives.

But that may be changing. The 2nd U.S. Circuit Court of Appeals ruled July 13, in a case involving ...

EFF Wins New Legal Protections for Video Artists, Cell Phone Jailbreakers, and Unlockers

Monday, July 26th, 2010

San Francisco - The Electronic Frontier Foundation (EFF) won three critical exemptions to the Digital Millennium Copyright Act (DMCA) anticircumvention provisions today, carving out new legal protections for consumers who modify their cell phones and artists who remix videos — people who, until now, could have been sued for their non-infringing or fair use activities.

"By granting all of EFF's applications, the Copyright Office and Librarian of Congress have taken three important steps today to mitigate some of the harms caused by the DMCA," said Jennifer Granick, EFF's Civil Liberties Director. "We are thrilled to have helped free jailbreakers, unlockers and vidders from this law's overbroad reach."

The exemptions were granted as part of a statutorily prescribed rulemaking process, conducted every three years to mitigate the danger the DMCA poses to legitimate, non-infringing uses of copyrighted materials. The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to control access to copyrighted works. While the DMCA still chills competition, free speech, and fair use, today's exemptions take unprecedented new strides towards protecting more consumers and artists from its extensive reach.

The first of EFF's three successful requests clarifies the legality of cell phone "jailbreaking" — software ...

Recording Industry Giant Tries to Undermine ‘Safe Harbor’ Rules for Online Video Sites

Monday, July 26th, 2010

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of nonprofit groups have asked a federal appeals court to protect the "safe harbor" rules for online video service providers that encourage free expression and innovation on the Internet.

In an amicus brief filed Friday in UMG v. Veoh, EFF told the U.S. Court of Appeals for the 9th Circuit that Universal Music Group's (UMG's) effort to hold online video service Veoh responsible for infringing content uploaded by a minority of its users would thwart federal law and Congress's intent to stimulate electronic commerce and free speech.

"By creating a clear path for innovators like Veoh to limit their liability for the copyright violations of their users, the statutory safe harbors helped foster the innovation environment that has made YouTube, Flickr, eBay, Blogger, and myriad other hosting-based services possible," said EFF Senior Staff Attorney Corynne McSherry. "UMG is trying to turn back the clock and reinstate a climate of legal uncertainty that would harm new online businesses and the free expression they foster."

The safe harbors are part of the Digital Millennium Copyright Act (DMCA) and give sites immunity from monetary damages if they observe the DMCA's "notice and ...

Verdict Recalls Gruesome Abuses

Monday, July 26th, 2010
The 20th century witnessed mass murder on a previously unthinkable scale. But Khmer Rouge atrocities remain uniquely shocking in their brutality.

Netroots Nation Takes on Citizens United

Sunday, July 25th, 2010

When we commissioned a poll to gauge what Americans thought about the Supreme Court’s decision in Citizens United v. FEC, we expected to find strong opposition to the idea of unlimited corporate influence in elections. But even we were stunned by how strong that opposition was. 85% of those surveyed disagreed with the Supreme Court’s decision to give corporations unlimited power to spend in elections, and 74% supported a Constitutional Amendment to reverse it.

Today, in a packed Netroots Nation panel organized by People For, activists and elected officials gave their loud and clear endorsement of a Constitutional Amendment to undo Citizens United and return elections to voters.

The audience responded with a standing ovation when panelist Rep. Donna Edwards declared her support for an amendment saying, “Let’s not let anything undo our power over our elections.”

Edwards spoke about the pressure members of Congress face from the health care and energy lobbies, and other powerful interests. “We cannot afford in this country to have elected officials afraid to stand up to that,” she said.

Corporate interests, Edwards said, “are not just trying to influence the process, they want to own the process.”

In Congress, Rep. Alan Grayson added, ...

EFF at Black Hat and DEF CON

Saturday, July 24th, 2010

Join EFF for a plethora of appearances in Las Vegas, NV, at Black Hat USA 2010 and DEFCON 18. There is still time to register, and EFF supporters receive a 25% discount on Black Hat registration. Remember to stop by the EFF booths to get reduced-rate EFF memberships and top drawer swag! And be on the lookout for the limited edition "Things to Hack" t-shirt available only in Las Vegas.

Check out talks presented by members of our legal and technology teams throughout the week:

Wednesday, July 28
Kevin Bankston and Kurt Opsahl will play the role of the defense attorneys for an indicted hacker in the 2010 edition of Black Hat Hacker Court from 1515-1800 in Forum 25 at Caesar's Palace.

Thursday, July 29
EFF staffers will be at Vegas 2.0's 6th Annual Summit Fundraiser to thank our supporters, including the DEFCON 18 Getaway contest winners and the contest sponsors, Tenable Network Security, iSec Partners, and IOActive. As a special bonus, Summit attendees can receive a complimentary EFF Advocate Level membership and an opportunity to pick up the "Things to Hack" shirt at vastly reduced rates. Many thanks to Vegas 2.0 for their generosity in organizing this amazing ...

Making the Courts a Progressive Priority

Saturday, July 24th, 2010

If there’s one theme that’s prevalent here at Netroots Nation, it’s that elections matter—but what you do after elections matters more.

In a great panel discussion this morning, six judiciary-watchers discussed why the courts should matter to progressives, and why it’s dangerous when they don’t.

Pam Karlan, a professor at Stanford Law school who is frequently mentioned as a potential Supreme Court nominee herself, put it this way: “However much progressive legislation we get from Congress, unless it gets enforced every day by district courts, it’s just words on paper.”

Republicans have successfully made the courts an issue for their base, and are trying to work it to their advantage now that they’ve lost power in Congress and the White House. The Philadelphia Inquirer reported earlier this month that nearly 40% of federal judges currently serving were appointed by George W. Bush, whose habit of recruiting from the conservative Federalist Society led to an intentional right-ward drift on courts across the country.

In their effort to keep the courts on the Right, Republicans are taking full advantage of their well-practiced obstruction skills.

Nan Aron, president of Alliance For Justice described the Republican game plan to keep the courts: “Hold ...

Uyghur Journalist Gets 15 Years

Friday, July 23rd, 2010
China imprisons a Uyghur journalist for "endangering state security."

FIRE’s Lukianoff and Creeley Published in ‘Free Inquiry’

Friday, July 23rd, 2010
We are proud to announce that FIRE President Greg Lukianoff and Director of Legal and Public Advocacy Will Creeley join a distinguished group of writers discussing free thought and free speech on campus in the April/May issue of Free Inquiry magazine. Their article is titled "Is Campus Censorship the New Normal?" 
Greg and Will explore a number of the outrageous cases of censorship that FIRE has seen in recent years and develop five themes. First, campus censorship follows a "familiar pattern," in which "[o]ffense was taken and offical threats of censorship soon followed." A prominent example is the censorship of a campus t-shirt at Yale quoting F. Scott Fitzgerald saying, "I think of all Harvard men as sissies."

Second, the article returns to a theme Greg developed in "P.C. Never Died" in Reason magazine in February: campus censorship under the aegis of political correctness is still around and in many ways, it's getting worse.

Third, speech critical of Islam is increasingly being censored. FIRE has taken cases ranging from an investigation of an anti-terrorism rally at San Francisco State University to Yale University Press' refusal to publish the Danish Mohammed cartoons in a book about the Mohammed cartoons.

Fourth, ...

Chairman Leahy Reprimands Senate Republicans

Friday, July 23rd, 2010

After helping Elena Kagan sail through the Judiciary Committee, Chairman Leahy isn’t content resting on his laurels. Yesterday the Chairman censured his Republican colleagues for their obstructionism on lower profile but just as vital judicial nominations. When Republicans foiled his attempt to schedule discussion on 4th Circuit nominee Jane Stranch of Tenessee, who enjoys the bipartisan support of her home state Senators, Chairman Leahy called them out:

Senate Republicans have further ratcheted up the obstruction and partisanship that have regrettably become commonplace this Congress with regard to judicial nominees. We asked merely for a time agreement to debate and vote on the nomination. I did not foreclose any Republican Senator from voting against the nominee or speaking against the nominee but simply wanted a standard agreement in order to allow the majority leader to schedule the debate and get to a vote. This is for a nomination reported favorably by the Judiciary Committee over eight months ago with bipartisan support. Yet the Republican leader objected and blocked our consideration.

For anyone who still thinks that both parties engage in this kind of obstructionism when in the minority, Senator Leahy came prepared with statistics:

No one should be confused: the current ...

Washington State University Appears to Have Gotten the Message on Bias Reporting Protocols; Will Other Universities?

Friday, July 23rd, 2010
The advent of bias reporting protocols on university campuses is viewed by FIRE as a pernicious threat to student speech, and with good reason.

Universities that maintain and operate such policies typically encourage students and others on campus to report, often anonymously, occasions in which they experience or overhear any speech that they deem biased, prejudiced, or hostile on the basis of listed categories. Even though speech that is prejudiced or biased, standing alone, is entitled to constitutional protection, many universities have unwisely enacted such reporting protocols in order to protect students from mere offense or politically incorrect speech.

In so doing, they have placed a harmful chilling effect on speech on their campuses, ignoring that the investigation of protected expression—even absent official punishment—is impermissible under the First Amendment and free speech principles. Thankfully, at least one university has expressed to FIRE its understanding of these problems and its willingness to do away with the constitutional infirmities in its own bias reporting policy.

Washington State University (WSU) was recently the recipient of a letter from FIRE pointing out the threat to freedom of expression presented by its "Bias Hotline" policy. (The letter was part of FIRE's national mailing campaign to ...

Oiling the Wheels of Justice

Friday, July 23rd, 2010

We’ve commented before on the oil ties of Judge Martin Feldman, the Reagan-appointed federal judge who struck down President Obama’s moratorium on deepwater drilling in the Gulf of Mexico. Now Alliance for Justice has issued a full report on his financial relationship with the energy sector and his refusal to recuse himself from the case. The results are damning. In 2008, for example, Judge Feldman reported energy-related financial holdings valued between $15,000 and $545,000, with a realized income of between $27,000 and $100,500. And yet, despite a statute that specifically requires recusal when a Justice has even a slight financial interest in a case, Judge Feldman did not step aside in the moratorium case. As Nan Aron, the President of Alliance for Justice, said:

Even the most cursory look at his personal financial holdings would lead any reasonable person to say he can't possibly hear this case and stay within the formal rules of recusal, to say nothing of common-sense notions of bias.

Not only does Judge Feldman stand to make a profit from deciding on big oil’s behalf. He also, like conservative-appointed justices across the country, seems eager to impose a pro-corporate ideology on our legal system. It’s ...

Greg Baylor on the CFN Conference ‘Philosophy’ Panel

Thursday, July 22nd, 2010

On Tuesday, I wrote a summary of what students experienced at the Third Annual Campus Freedom Network Conference. The same day, Greg Baylor, Senior Counsel for the Alliance Defense Fund, posted an excellent recounting of the "Philosophical and Practical Underpinnings of Academic Liberty" panel at the conference. 

He begins by noting Adam's explanation of the utilitarian case for free speech drawn from John Stuart Mill's work, then describes the "deontological" claim for free speech—that people have an inherent right to speak and listen even if the speech does not necessarily have any positive effect. This view is expressed in the Declaration of Independence, for instance, as "inalienable" or "unalienable" rights. Baylor additionally notes writers who have tried to add free speech exceptions by expanding Mill's "harm principle" to include "offensive speech" or "hate speech." Among these he names paternalism, whereby the censors deem certain speech or viewpoints damaging to the very people thinking or expressing them; a paternalistic censor acts to protect the speakers from themselves.

Baylor uses these theories to explain some of the reasoning in the Supreme Court's ruling in Christian Legal Society v. Martinez. Justices Ginsburg and Stevens, he says, appealed to an expanded "harm principle," ...

Bloggers Asked To Self-Censor

Thursday, July 22nd, 2010
Chinese authorities remain wary of what has become a powerful tool.

Local news: The Storyline Project 2010

Thursday, July 22nd, 2010

The Storyline Project is an annual summer programs jointly sponsored and run by the Piedmont Council for the Arts, The Bridge Progressive Arts Initiative, Siteworks, and the the Thomas Jefferson Center for the Protection of Free Expression. For two weeks middle school kids study their neighborhoods and tell of their own experiences growing up in those neighborhoods. For the final project, the kids create a giant mural on the First Amendment Monument that encompasses their neighborhoods and experiences.

Rauch on Liberal Science and the UIUC Case

Thursday, July 22nd, 2010

Jonathan Rauch is not your typical free speech junkie or your typical introvert. He expertly works a crowded room despite proclaiming shyness. 

An introvert is the type of person you might expect to be hostile to the concept of unfettered speech, as if any semi-offensive word could breach his artificial defenses and send him running back into the safety of solitude. But this past weekend, surrounded by occasionally loud, often outspoken free speech advocates, the Yale graduate and author of six books, including Kindly Inquisitors: The New Attacks on Free Thought, proved more than ready to deliver the keynote address at the Campus Freedom Network's annual conference.  

Speaking before roughly 75 of the nation's premier First Amendment advocates on their college campuses, and flanked by FIRE and CFN banners, Rauch stood tall and proud as he delivered an eloquent disquisition on the necessity of unbridled speech in a free society.  

He began by discussing an ongoing case at the University of Illinois at Urbana-Champaign. In that case a professor of Catholic thought, Kenneth Howell, lost his class after nine years following an e-mail he sent out, which contained in the subject line the words "Utilitarianism and Sexuality" and presented (among ...

Release of CIA interrogation methods rejected

Thursday, July 22nd, 2010
Federal judge says to rule in ACLU's favor would be to 'confer an unwarranted competence to the district court to evaluate national intelligence decisions.'

2nd Circuit limits how much footage filmmaker must give Chevron

Thursday, July 22nd, 2010
Federal judge had ordered Joseph Berlinger to turn over all 600 hours of raw video that was used to create documentary 'Crude.'

Briefs filed supporting right to protest at funerals

Thursday, July 22nd, 2010
Ideologically diverse group warns in Supreme Court papers that denying Westboro church's free speech threatens First Amendment.

Federal judge: Kan. woman can protest with flag outside GI's funeral

Thursday, July 22nd, 2010
But Nebraska attorney general says he'll have Megan Phelps-Roper arrested if she violates law barring picketing within 300 feet.

Planned Tenn. mosque draws protesters, backers

Thursday, July 22nd, 2010
Sides face off during demonstration against proposed Islamic center, each claiming to be true defenders of Constitution.

2nd Circuit judges show little sympathy for filmmaker

Thursday, July 22nd, 2010
But they suggest they might limit amount of raw footage that Joseph Berlinger must turn over to Chevron.

Booksellers, others challenge newly expanded Mass. obscenity law

Thursday, July 22nd, 2010
Lawsuit says changes to statute amount to 'broad censorship law that imposes severe content-based restrictions' on dissemination of constitutionally protected speech.

Federal judge strikes down Stolen Valor Act

Thursday, July 22nd, 2010
Law violates free speech, court finds in dismissing government's case against Colorado man who claimed he had earned two military medals.

Teachers' personal e-mails are private, rules Wis. high court

Thursday, July 22nd, 2010
Justices find that public employee's use of work computer to send e-mail doesn't automatically make that message subject to state's open-records law.

Senate votes to protect U.S. writers from foreign libel rulings

Thursday, July 22nd, 2010
U.S. federal courts would be prevented from recognizing or enforcing judgments that are inconsistent with First Amendment.

Milwaukee settles with gay arts group for $20K

Thursday, July 22nd, 2010
Assistant city attorney says city admitted no wrongdoing in free-speech case brought by group after musical featuring nudity was shut down.

Lesbian gets $35K settlement over canceled prom

Thursday, July 22nd, 2010
Constance McMillen, 18, says victory came at price of her being shunned in her small Mississippi hometown.

Univ. questions Va. official's motive in probing professor's research

Thursday, July 22nd, 2010
UVA says in court papers that attorney general's demand for records related to ex-professor's climate-change research is intended to challenge his conclusions rather than uncover fraud.

Ga. quietly scales back strict sex-offender law

Thursday, July 22nd, 2010
All registered sex offenders had been banned from living within 1,000 feet of schools, parks, churches and other places where children gather.

10th Circuit gives new life to 'Howling Pig' suit

Thursday, July 22nd, 2010
Former Colorado student — once accused of libeling professor in online journal — can pursue his lawsuit against prosecutor.

Calif. judges toss law allowing labor picketing on private property

Thursday, July 22nd, 2010
Appeals court agrees with grocery store that statute is invalid because it singles out union speech for special protection.

Free-speech fight ends quietly in lost iPhone saga

Thursday, July 22nd, 2010
Attorney says, blogger have agreed to cooperate with prosecutors to resolve case as quickly as possible.

Neb. officials agree flag-desecration law is unconstitutional

Thursday, July 22nd, 2010
Westboro's Shirley Phelps-Roper still faces charges of child abuse, disturbing the peace related to 2007 protest at soldier's funeral.

Court: Violating Terms of Service Is Not a Crime, But Bypassing Technical Barriers Might Be

Wednesday, July 21st, 2010

Good news: another federal judge has ruled that violating a website terms of service is not a crime. But there's bad news, too — the court also found that bypassing technical or code-based barriers intended to limit access to or uses of a website may violate California's computer crime law.

The decision comes in Facebook v. Power Ventures, a case in which Facebook is suing a company that offers a tool for users to access and aggregate their personal information across social networking sites. Because Facebook's terms of service don't allow users to access their information through "automated means," Facebook claimed that Power accesses its service "without permission" in violation of California Penal Code Section 502. Facebook has also argued that Power broke the law by evading Facebook's effort to block the Power browser’s IP address, which was meant to try to keep users from accessing their Facebook accounts though the Power website.

EFF filed an amicus brief in this case, urging the court to reject Facebook's computer crime claims. We argued that turning any violation of terms of use into a crime would give websites unfettered power to decide what conduct is criminal, leaving millions of Internet ...

Alliance Defense Fund Goes Head to Head with the University of Illinois over Howell Case

Wednesday, July 21st, 2010
Late yesterday, the Alliance Defense Fund (ADF) reported that the University of Illinois at Urbana-Champaign (UIUC) has replied to ADF's warning that it had violated the constitutional rights of adjunct professor Kenneth Howell. UIUC decided not to rehire him after he had been teaching for nine years. Its decision, by all indications, came because Howell had e-mailed the students in his class comparing what he described as Catholic and utilitarian criteria for making moral judgments about sexual conduct. FIRE also intervened in the case last week, and I provided further analysis of the situation on Monday. Today we examine the University of Illinois' reply and ADF's response to the reply.

On July 15, 2010, University of Illinois Deputy University Counsel Steven A. Veazie wrote ADF a short reply to its July 12 letter. Veazie cites the University of Illinois Statutes to assert that the university is dedicated to faculty members' individual rights after all:

The University is fundamentally committed to upholding the principles of the First Amendment and academic freedom. The University of Illinois Statutes ... state that it is the policy of the University to maintain and encourage full freedom within the law of inquiry, discourse, teaching, research and publication ...

Commentary: Sophomoric speech is free speech too

Wednesday, July 21st, 2010


Some school memories are more golden than others.

While we’ve all benefited from the good teachers and school administrators in our lives, it’s hard to shake the memories of those who either didn’t teach us very well or treated us badly.

Students in the pre-digital era pretty much just had to grin and bear it. We would grumble to our friends or complain to our parents, but we weren’t going to get an audience with the school board.

Times have changed. The current generation is armed with social media, and it’s payback time.

Students across America are increasingly turning to MySpace, Facebook and blogs to vent about real or perceived slights, setting the stage for an eventual Supreme Court ruling that will decide how much free speech students in America’s public schools really have.

Read more of Ken Paulson’s commentary.

FTRF’s Judith Krug Fund announces competition for Banned Books Week grants

Wednesday, July 21st, 2010

The Freedom to Read Foundation (FTRF), through its Judith F. Krug Memorial Fund, will provide two grants—one for $2,500 and one for $1,000—to two organizations to support “Read-Outs” celebrating Banned Books Week 2010.  Applications for the grants will be accepted through Aug. 27, and the announcements will be made the week of Sept. 6.  Banned Books Week 2010 is held Sept. 25–Oct. 2.

Read the announcement here.

Apply for a grant here.

Organizations are required to submit an event description, timeline and budget with their application, as well as agree to provide a written report and video to FTRF following Banned Books Week.  Contact Jonathan Kelley at or Nanette Perez at with questions, or call (800) 545-2433, ext. 4226.

Saying No To Good Government

Wednesday, July 21st, 2010

Although Elena Kagan’s nomination moved out of committee yesterday, almost every Republican committee member voted against her, and most Senate Republicans are expected to follow suite. Why? As an editorial in the New York Times pointed out , Republican opposition to the broad interpretation of the commerce clause in recent decades may partly explain their refusal to support Kagan:

[D]ozens of Senate Republicans are ready to vote against [Kagan], and many are citing her interpretation of the commerce clause of the Constitution, the one that says Congress has the power to regulate commerce among the states. At her confirmation hearings, Ms. Kagan refused to take the Republican bait and agree to suggest limits on that clause’s meaning. This infuriated the conservatives on the Senate Judiciary Committee because it has been that clause, more than any other, that has been at the heart of the expansion of government power since the New Deal.

The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor. The Civil ...

Attention, University Counsel: Narrow Holding in ‘Martinez’ Is Irrelevant to Speech Code Cases

Wednesday, July 21st, 2010
Well, that didn't take long. In an unfortunate but not unexpected development, universities have already begun misguided attempts to exploit the Supreme Court's recent decision in Christian Legal Society v. Martinez by citing it out of context to justify their unconstitutional speech codes.

In a filing with the United States Court of Appeals for the Ninth Circuit last Thursday, attorneys representing the Los Angeles County Community College District (LACCD) in the case of Lopez v. Candaele cited Martinez for the broad proposition that courts must "defer to decisions of educational
administrators, even in the free speech context and even in higher education." But, contrary to the LACCD's attempt to broaden Martinez's holding, the Supreme Court held only that public universities do not violate students' freedom of association when they require official student organizations to accept all students as voting members and leaders. This disingenuous attempt to import the language of Martinez into a speech code case misconstrues the subtleties of Martinez and has the potential to erode well-established First Amendment freedoms if accepted by courts.

In Lopez, LACCD's speech code was challenged by plaintiff Jonathan Lopez after a professor told Lopez to "ask God what your grade is" ...

Kagan Clears Judiciary Committee

Wednesday, July 21st, 2010

Yesterday the Judiciary Committee voted to forward Elena Kagan’s Supreme Court nomination to the full Senate. Here’s PFAW President Michael B. Keegan’s statement:

Today’s vote is a step towards achieving a Supreme Court that understands the way the law affects individual Americans. In her hearings, Solicitor General Kagan made clear that, unlike the current Court, she understands that corporate interests shouldn’t be allowed to run rampant over the rights of individual Americans.

It’s frankly puzzling that the GOP seems dead set on opposing that principle. Throughout much of the hearings, Republican senators lavished praise on Citizens United v. FEC, a decision that gave corporations unchecked rights to buy elections and which most Americans abhor. Given the national outrage at companies like BP and Goldman Sachs, it’s surprising that the GOP would expend so much breath pining for a Supreme Court Justice who would give even greater deference to corporations while slamming the door on individual Americans fighting for their rights.

Apparently, the ‘Party of No’ can’t stop from saying ‘Yes’ to corporate interests who want to get their way in the Supreme Court.

Fortunately for the country, the GOP has been unable to block the confirmation of this supremely qualified ...

Real ID Online? New Federal Online Identity Plan Raises Privacy and Free Speech Concerns

Tuesday, July 20th, 2010

Coauthored by Seth Schoen

The White House recently released a draft of a troubling plan titled "National Strategy for Trusted Identities in Cyberspace" (NSTIC). In previous iterations, the project was known as the "National Strategy for Secure Online Transactions" and emphasized, reasonably, the private sector's development of technologies to secure sensitive online transactions. But the recent shift to "Trusted Identities in Cyberspace" reflects a radical — and concerning — expansion of the project’s scope.

The draft NSTIC now calls for pervasive, authenticated digital IDs and makes scant mention of the unprecedented threat such a scheme would pose to privacy and free speech online. And while the draft NSTIC "does not advocate for the establishment of a national identification card" (p. 6), it’s far from clear that it won’t take us dangerously far down that road. Because the draft NSTIC is vague about many basic points, the White House must proceed with caution and avoid rushing past the risks that lay ahead. Here are some of our concerns.

Is authentication really the answer?

Probably the biggest conceptual problem is that the draft NSTIC seems to place unquestioning faith in authentication — a system of proving one's identity — as ...

UIUC ‘Suspends Decision’ against Adjunct Professor, Fails to Resolve Rights Violation

Tuesday, July 20th, 2010

The Alliance Defense Fund (ADF) has just reported that UIUC has suspended its decision not to rehire adjunct associate professor Kenneth Howell because of an e-mail about Catholicism that he sent his students in a class about Catholicism. However, UIUC's partial response has not resolved the issue of the violation of his constitutional rights. As Heather Gebelin Hacker, ADF Litigation Staff Counsel, writes:

Late Thursday, we received a letter from the University stating that they are "suspending" the decision of his department chair pending review by the committee.  While this is a nice step, this does not resolve the issue.  It is meaningless for Professor Howell to retain his status as an adjunct professor without being able to teach any classes, and the committee's review of the situation does not change the fact that Professor Howell was relieved of his previously scheduled teaching responsibilities because his instruction to students was deemed not to meet standards of "inclusivity."  Save for that email, Professor Howell would still be teaching Introduction to Catholicism in the approaching semester.  That is a violation of his constitutional rights, and we have indicated as much to the University in our response letter, sent today.

Read ...

FIRE’s CFN Conference a Huge Success

Tuesday, July 20th, 2010

This weekend, FIRE wrapped up its Third Annual Campus Freedom Network Conference. About fifty students from across the country congregated at Bryn Mawr College to hear from FIRE's staff and some of the leading advocates of free speech on campus. Dozens of students and community members tuned in on the CFN website and on the CFN's Ustream channel. Students and staff engaged in vigorous discussion not only at the conference, but also on Twitter

After meeting each other and the staff, students were treated to University of Massachusetts at Amherst professor and FIRE Board of Directors member Daphne Patai's opening speech, including a satire on utopian motivations which drew on her personal experience and her academic study of dystopian literature. She thus provided serious insight into how many administrators may view the world when writing speech codes. 

On Friday morning, FIRE Board of Directors Chairman Harvey Silverglate gave a scintillating speech on the importance of FIRE's Campus Freedom Network members. Harvey speculated that when starting FIRE with University of Pennsylvania professor Alan Charles Kors, he thought that it would take about a decade to set the academy straight on speech codes. In hindsight, he reflected, he was naive ...

Federal judge strikes down Stolen Valor Act

Tuesday, July 20th, 2010


A law that makes it illegal to lie about being a war hero is unconstitutional because it violates free speech, a federal judge ruled July 16 as he dismissed a case against a Colorado man who claimed he had received two military medals.

Rick Glen Strandlof claimed he was an ex-Marine who was wounded in Iraq and received the Purple Heart and Silver Star, but the military has no record he ever served. He was charged with violating the Stolen Valor Act, which makes it a crime punishable by up to a year in jail to falsely claim to have won a military medal.

U.S. District Judge Robert Blackburn dismissed the case and said the law is unconstitutional, ruling in U.S. v. Strandlof that the government did not show it had a compelling reason to restrict that type of statement.

Read more.

Introducing CBLDF’s Education & Outreach Initiative

Tuesday, July 20th, 2010

By Betsy Rosenblatt

As an advocacy group, the CBLDF spends most of its time handling emergencies when they come in: a creator, retailer, library, or reader gets threatened, arrested, or sued, and the CBLDF goes to work, helping with legal arguments and litigation costs. But what if someone is prosecuted and doesn’t know about the CBLDF before it’s too late—they’ve lost a case, settled for a lot of money, or—even more frightening—gone to jail. We can’t help unless people know about us, know their rights, and know how to protect themselves. So what we want to do now, as Executive Director Charles Brownstein said, is to “harness the energy that we use for fighting a case to make tools that help prevent future battles from occurring.”

How do we do that? Every time the CBLDF goes on the road (and sometimes even when we don’t), we hear “what can I do to help”? Until recently, the answer typically was “donate money.” That hasn’t changed—we still need money!—but lately, the CBLDF has been looking into other ways that people can pitch in, too. We’re in the process of building information resources (to be available on the CBLDF website and in hard ...