Delaware ACLU releases ‘Guide to the First Amendment for LGBTQ+ Youth’ — First Amendment News 355

“We hope that students will use this guide to learn their rights, and that parents and educators will also use this guide as a resource to support the LGBTQ+ students in their lives.” — Mike Brickner (ACLU Delaware)

Ronald K. L. Collins

November 11, 2022

First Amendment News is a weekly blog and newsletter about free expression issues by Ronald K. L. Collins and is editorially independent from FIRE.

This from the Delaware ACLU:

Being part of the LGBTQ+ community as a kid can often be intimidating — and the policies that govern Delaware’s schools aren’t always designed to be inclusive of students who identify as part of these communities. That’s why we have launched a new resource: a “Know Your Rights” (KYR) handbook that aims to help students, parents, and educators learn their rights when it comes to LGBTQ+ expression in schools.

This online guide is also available as a print handbook. We encourage schools to make copies of this handbook available to their students and educators. Any school or community organization that wishes to have hard copies of the handbook can reach out to Melissa Bryson, ACLU-DE development director, to request copies at no charge: mbryson@aclu-de.org.

“Every student, regardless of their identity, deserves a safe, inclusive environment to learn,” said Mike Brickner, ACLU-DE executive director. “When schools are inclusive of LGBTQ+ people, there are better experiences and outcomes for all students in those schools. We hope that students will use this guide to learn their rights, and that parents and educators will also use this guide as a resource to support the LGBTQ+ students in their lives.”

Browse the guide here.

Related

FAN 354: “New book on forgotten LGBTQ+ First Amendment case — Rowland v. Mad River Local School District (1985)”

Beauty pageant prevails on First Amendment grounds in suit brought by transgender female

The case is Green v. Miss United States of America (9th Cir., Nov. 2, 2022). The summary below is from the majority opinion per Judge Lawrence VanDyke:

Anita Green, who self-identifies as “an openly transgender female,” sued the Miss United States of America pageant, alleging that the Pageant’s “natural born female” eligibility requirement violates the Oregon Public Accommodations Act (“OPAA”). The district court granted the Pageant’s motion for summary judgment, holding that the First Amendment protects the Pageant’s expressive association rights to exclude a person who would impact the group’s ability to express its views. We conclude that the district court was correct to grant the Pageant’s motion for summary judgment, but reach this conclusion not under the First Amendment’s protection of freedom of association but rather under the First Amendment’s protection against compelled speech.

[. . . .]

The Supreme Court has explained that, “[p]erhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech.” Janus, 138 S. Ct. at 2464. But the First Amendment’s protections remain no less robust where, as here, compelled expression is the problem. Green seeks to use the power of the state to force Miss United States of America to express a message contrary to what it desires to express. The First Amendment says no. The district court’s order granting summary judgment for the Pageant is therefore AFFIRMED.

Separate opinions

Judge VanDyke also authored a lone concurrence in which he elaborated on both the compelled speech and forced association arguments he understood as presented by the case.
Judge Susan Graber dissented on both procedural (excerpted below) and constitutional grounds:

The majority opinion marks a radical departure from the well-settled principle that we should consider non-constitutional grounds for decision before reaching constitutional issues—the doctrine of constitutional avoidance. After Defendant Miss United States of America, LLC, denied Plaintiff Anita Green’s request to compete in an Oregon pageant on the ground that she is a transgender woman, Plaintiff brought a single state-law claim under the Oregon Public Accommodations Act (“OPAA”), invoking diversity jurisdiction. It is not clear on the present record whether the OPAA even applies to Defendant. Without allowing discovery or briefing on that question, and without making any relevant findings, the district court assumed that the statute applies, held that the First Amendment precludes its application, and entered judgment for Defendant. In doing so, the court doubly erred. If the OPAA applies, Plaintiff must prevail. If the OPAA does not apply, Defendant must prevail, but the constitutional argument passes out of the picture. Unfortunately, the majority opinion repeats the same mistakes. I therefore respectfully but emphatically dissent.

Legal counsel

Shenoa Payne (argued), for Plaintiff-Appellant.
Cody S. Barnett (argued), for Alliance Defending Freedom.
Eugene Volokh; Anastasia Thatcher, So-Young Kim, and Aaron Boudaie, Certified Law Students; First Amendment Clinic, UCLA School of Law, for Amicus Curiae Libertarian Law Council and Institute for Free Speech.
Amicus: Jeffrey R. White and Amy L. Brogioli, American Association for Justice.
Peter C. Renn and Nora Huppert, Lambda Legal Defense and Education Fund Inc., for Amici Curiae Lambda Legal Defense and Education Fund, Transgender Legal Defense and Education Fund, and National Center for Lesbian Rights.
Lauren R. Adams, Women’s Liberation Front; Lauren A. Bone, Women’s Liberation Front; for Amicus Curiae Women’s Liberation Front.
Aaron T. Martin, Martin Law & Mediation PLLC; for Amici Curiae Past Pageant Participants.

12 state solicitors general file amicus brief

Arkansas, Alabama, Arizona, Idaho, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, and Texas.

First Circuit upholds criminal libel law

Eugene Volokh, “First Circuit: Suitably Narrow Criminal Libel Law Doesn't Violate First Amendment,” The Volokh Conspiracy (Nov. 8)

From Frese v. Formella, decided today by the First Circuit, in an opinion by Judge Jeffrey Howard, joined by Judges William Kayatta and Rogeriee Thompson:

New Hampshire's criminal defamation statute provides that "[a] person is guilty of a class B misdemeanor if he purposely communicates to any person, orally or in writing, any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule." "'[P]ublic' includes any professional or social group of which the victim of the defamation is a member." A person convicted of a class B misdemeanor faces a fine of up to $1,200. Because such charges carry no possibility of jail time, criminal defamation defendants have no right to trial by jury and are not afforded court-appointed counsel.

The court held that § 644:11 was constitutional under Garrison v. Louisiana (1964):

The Supreme Court, however, has upheld the criminalizing of false speech, explaining that deliberate and recklessly false speech "do[es] not enjoy constitutional protection." Thus, the state can "impose criminal sanctions for criticism of the official conduct of public officials" so long as the statements were made with "'actual malice'—that is, with knowledge that [they were] false or with reckless disregard of whether [they were] false or not."

And the court held that the law wasn’t unconstitutionally vague:

A "statute authorizes an impermissible degree of enforcement discretion—and is therefore void for vagueness—where it fails to 'set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement.'"

We conclude that the statute at issue here provides adequate guidelines for law enforcement, and therefore passes constitutional muster. Frese argues that the statute is unconstitutionally vague, because different persons may have "different standards for determining what is and is not defamatory." But the statute provides reasonably clear guidance—defamatory statements are those false statements that "expos[e] any … person to public hatred, contempt or ridicule." Likewise, we doubt that reasonable persons will have much difficulty in ascertaining objectively whether a false statement exposes the victim to public hatred, contempt, or ridicule, even if the public is defined to include professional and social groups to which the victim belongs. Frese offers no hypothetical example of how a factfinder might struggle unduly to determine whether a given set of facts demonstrates the requisite tendency of the false remarks. Indeed, for centuries factfinders have made such determinations.

Related

Eugene Volokh: “I think this is correct as a matter of current law. For my thoughts on the survival and revival of criminal libel law, see Part D of this post.”

Ninth Circuit rules that anti-abortion activists illegally infiltrated Planned Parenthood

Susanna Granieri (First Amendment Watch)

Susanna Granieri, “Ninth Circuit Affirms Anti-Abortion Activists Illegally Infiltrated Planned Parenthood Activities, First Amendment Protections Don’t Apply,” First Amendment Watch (Nov. 8)

An anti-abortion group of self-proclaimed citizen journalists secretly videotaped Planned Parenthood after creating false identities and a fake company to infiltrate restricted areas. The group argued that their undercover reporting project was protected by the First Amendment, but a federal appellate court affirmed that no journalist is above the law.

The project, “Human Capital,” was released in 2015 by the nonprofit anti-abortion group Center for Medical Progress, (CMP), and includes various documentary-like videos accusing Planned Parenthood clinics in California of selling aborted fetal tissue.

The videos of Planned Parenthood affiliates were taken at multiple conferences, lunches and even health clinics with hidden cameras by CMP members between 2013 and 2015. Video forensic experts from research firm Fusion GPS reviewed the videos and found that they were heavily edited. The experts noted that because of this, the videos “lacked credibility as journalistic products,” according to a lawsuit filed by Planned Parenthood in 2016.

[. . .]

The United States Court of Appeals for the Ninth Circuit upheld each of the lower court’s findings Oct. 21, but vacated charges under the Federal Wiretap Act which lowered Planned Parenthood’s damages award by $90,000.

“Invoking journalism and the First Amendment does not shield individuals from liability for violations of laws applicable to all members of society,” wrote Circuit Judge Ronald Gould for the unanimous three-judge panel. “Appellants have no special license to break laws of general applicability in pursuit of a headline.”

Review of Scholarship: Norton on 'News as Surveillance'

Helen Norton, "The Press's Responsibilities as a First Amendment Institution," Jotwell (Oct. 3) Reviewing Erin C. Carroll, "News as Surveillance," 59 Washburn Law .Journal 431 (2020).

YouTube: Originalism and the First Amendment

“Free Speech Originalism, Religious Liberty, and the Supreme Court,” American Enterprise Institute (Oct. 18)

The Supreme Court’s most recent term re-rooted multiple constitutional rights in American history and traditions. Free speech law, however, remains its own body of law—premised on the idea that even the most outrageous speech must be protected to avoid harming core First Amendment freedoms. This term, the Supreme Court will address the scope of the First Amendment’s free speech protection in 303 Creative LLC v. Elenis. What sort of approach will the Court’s originalist judges take? Will they affirm Americans’ long-standing traditions and lived experiences with free speech?

‘So to Speak’ Podcast: Free speech and social media

So to Speak: Elon Musk, PayPal and Twitch

“Elon Musk, PayPal, and is New York trying to destroy Twitch?”

FIRE's Will Creeley and Aaron Terr join the show to discuss a slew of recent free speech news: What do we make of Elon Musk buying Twitter?

Is PayPal fining its users $2,500 for promoting "misinformation"?

Is New York trying to destroy Twitch?

Elon Musk, free speech, and Twitter

James Romoser, “Elon Musk, internet freedom, and how the Supreme Court might force big tech into a catch-22,” SCOTUSblog (Nov. 6)

Last month, the Supreme Court agreed to hear two cases that test the biggest pillar: Section 230 of the Communications Decency Act, the landmark 1996 law that immunizes tech companies from civil lawsuits arising from user-generated content that they host on their platforms. Under Section 230, if a user posts defamation, harassment, or other forms of harmful speech (like, say, spreading conspiracy theories about an 82-year-old victim of assault), the individual user can be sued, but the platform (with a few exceptions) cannot be.

Gonzales v. Google and Twitter v. Taamneh might change that. Gonzalez asks whether Section 230 immunity disappears if a platform recommends or amplifies problematic content to users. Taamneh asks whether a company can be held liable for “aiding and abetting” terrorism if any pro-terrorism content appears on its platform (even if the company aggressively removes most pro-terrorism speech).

Many experts on law and technology were shocked when the court decided to review these cases (which will be heard sometime next year). Typically, the justices won’t hear cases of this sort unless the circuit courts are divided on the underlying legal issues, and there is no real circuit split here. (Lower courts that have considered the question have been fairly uniform in their broad interpretations of Section 230.) And the unusual context of both cases — lawsuits brought by families of people killed in terrorist attacks — may make them imperfect vehicles for resolving the panoply of issues that Section 230 touches.

[. . .]

Separately, two other cases are waiting in the wings. In NetChoice v. Paxton and Moody v. NetChoice, the tech industry is challenging laws in Texas and Florida that restrict platforms’ authority to remove user-generated content. Politicians in those states believe tech companies are biased against politically conservative speech, and they are trying to reduce what they call censorship. Tech companies argue that the First Amendment (not to mention Section 230!) protects their right to set their own rules for their platforms — including barring speech that isn’t necessarily illegal but is harmful, like misinformation about elections or COVID vaccines.

Related

Angela Watercutter, “Elon Musk Wants Comedy on Twitter, but He Can’t Take a Joke,” Wired (Nov. 8)
Ryan Mac, “Facing a Tide of Criticism, Elon Musk Is Tweeting Through It,” The New York Times (Nov. 7)
Suzanne Nossel, “How Elon Musk’s plans for Twitter could threaten free speech,” Los Angeles Times (Oct. 27)
Jeffrey Rosen, “Elon Musk Is Right That Twitter Should Follow the First Amendment,” The Atlantic (May 2)

Governor Newsom’s administration sued over medical board discipline law

Brianna Herlihy, “Newsom sued over COVID ‘misinformation’ law that doctors say tramples First Amendment rights,” Fox News (Nov. 4)

A group of California physicians is suing Governor Gavin Newsom’s administration over a state law that empowers the Medical Board of California to discipline physicians who espouse opinions about COVID-19 that are not in line with the mainstream.

In a lawsuit filed Wednesday, five doctors asked a district court in California to prevent the law from taking effect and said it violates their First Amendment rights and constitutional right to due process. The doctors are represented by the New Civil Liberties Alliance (NCLA), a nonpartisan civil rights firm.

"California’s new ‘misinformation’ law is the result of an increasingly censorious mentality that has gripped many lawmakers in this country," Jenin Younes, counsel for NCLA, said in a media statement.