Category Archives: On Law

Anti-Israel Tweets lead to U. of Illinois changing hiring decision

The University of Illinois’ last-minute decision not to hire a controversial scholar because of his provocative, anti-Israeli tweets has led to a debate about the limits of academic freedom.
The American Indian Studies Department of the university had approved the tenured appointment of Steven G. Salaita.  But that appointment was contingent on approval by the Board of Trustees and Chancellor Phyllis M. Wise decided over the summer not to submit the appointment to the board.

In explaining her action, Wise said that the decision had nothing to do with academic freedom.  “What we cannot and will not tolerate at the University of Illinois,” she wrote, “are personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.”

Salaita’s supporters, however, think a fundamental issue of academic freedom is at stake, arguing that Salaita’s angry tweets should be answered by more speech, not by attempts to cut off his speech.

The university’s Association of American University Professors Committee on Academic Freedom and Tenure wrote in support of honoring the tenure offer to Salaita  It said: “Reports that the university has voided a job offer, if accurate, due to tweets on the Palestinian-Israeli conflict would be a clear violation of Professor Salaita’s academic freedom and an affront to free speech that we enjoy in this country.”

The former president of AAUP disagreed.  Cary Nelson, an English professor who has defended professors with unpopular beliefs, said it is legitimate to consider civility and collegiality at the point of hiring.

“I think the chancellor made the right decision,” Nelson told Inside Higher Education. “I know of no other senior faculty member tweeting such venomous statements — and certainly not in such an obsessively driven way. There are scores of over-the-top Salaita tweets…If Salaita had limited himself to expressing his hostility to Israel in academic publications subjected to peer review, I believe the appointment would have gone through without difficulty.” Nelson noted that strong criticism of Israel is widespread among faculty members. “Salaita’s extremist and uncivil views stand alone. There is nothing ‘unpopular’ on this campus about hostility to Israel.”

Thousands of university professors have signed a petition threatening to boycott the campus unless the university reconsiders its rejection of Salaita.  The New York Times reported that several professors have canceled talks on the campus as a result.

A group of free speech and constitutional scholars also sent Wise a letter arguing that the university’s actions violated Salaita’s free speech rights.

The Daily Illini, the student paper at the campus, used the state Freedom of Information law to obtain emails to Wise from donors threatening to withdraw financial support from the university if Salaita were hired.  A university spokesperson told the paper that the emails were forwarded to the Board of Trustees but did not affect the decision not to hire the professor.

The Daily Illini also reported this week that Wise said that in retrospect she should have reached out for more advice on how to handle the situation before making the decision.  She said she will ask the Faculty Senate for its view on how to handle similar situations.

Examples of Salaita’s over-the-top tweets are:

“You may be too refined to say it, but I’m not: I wish all the fucking West Bank settlers would go missing.”

“Zionists: Transforming ‘anti-Semitism’ from something horrible to something honorable since 1948.”

“At this point, if Netanyahu appeared on TV with a necklace made from the teeth of Palestinian children, would anyone be surprised?

Link to other tweets:

Ferguson protests and the First Amendment rights

Police appear to be violating the First Amendment rights of protesters and journalists in Ferguson by arresting and targeting journalists and by turning the right to assembly into a daytime-only right.

“Police and officials in Ferguson have declared war on the First Amendment,” said Gregory P. Magarian, a law professor at Washington University Law School. “Since Sunday’s police shooting of an unarmed student, Michael Brown, local officials and law enforcement have blatantly violated three core First Amendment principles: our right to engage in peaceful political protest, the importance of open government and the freedom of the press.”

He added that on the second day of protests, “In the space of one evening, police in Ferguson conducted a master class in destroying the freedom of the press.”

Other legal experts at Washington University and Saint Louis University law schools and a media lawyer agreed police actions apparently violated the First Amendment rights of protesters and journalists.  In addition, the American Civil Liberties Union of Eastern Missouri has been active in challenging restrictions on protesters and journalists.

Traditional place to protest  

The First Amendment issues deepened on the first Wednesday of the protest as police tried to keep protesters off the streets at night and as reporters, news crews and citizen journalists were arrested and targeted for police action.

Reporters from the Washington Post and Huffington Post were arrested in a McDonald’s restaurant when they did not quickly obey a police order to leave.  Alderman Antonio French, whose blogs from the protests have been journalistic, was arrested for not leaving a protest that had been declared an illegal assembly.  And police fired tear gas close to an Al Jazeera America crew setting up for a report.

The incidents with reporters continued in the ensuing days with Ryan Devereaux, a reporter for the Intercept hit in the back with a rubber bullet and arrested and photographer Raffe Lazarian threatened by an officer with a gun when he asked where the approved press area was situated.  The National Press Photographers Association, which has had a lawyer at the protests, filed an official complaint on Lazarian’s behalf.

Alan Howard, a law professor at Saint Louis University, said early in the protest that talking back to police or showing them disrespect is not enough to justify an arrest.

“Individuals have a right to speak back to the police — the police do not have the authority to demand total submissiveness,” he wrote in an email.  “…questioning police authority as such is not resisting arrest, especially when the questioning occurs before any arrest and seems to be the action that triggered the arrest.”

Howard wrote, “what the protesters are saying by their signs, shouting, raising their hands and the like is clearly protected speech — it is political speech. Moreover where they are speaking — on public streets and sidewalks– are public forums and thus are places where citizens have a presumptive right to speak.”

Even though the streets are traditional places for protest, authorities can establish reasonable time, place and manner restrictions that are “non-censorial,” Howard said.

One manner restriction upheld by a federal court during the second week of the protest required protesters to keep moving during their demonstrations.  That restriction also applied to the press.

But Howard doubts that police can ban nighttime protests except when there is a curfew in effect.

He said, “So the police say that they are not banning assembly entirely — just prohibiting the congregation of lots of people late at night where experience has shown that the congregation of lots of people has crossed over from protest into violence, looting and so forth. Whether what the police are doing constitutes a permissible time, place and manner response is clearly debatable however…do they really need to turn the right to  assembly into a ‘daytime’?”

Not just daytime right

Magarian answers Howard’s rhetorical questions with an emphatic no. He concedes that “the police have proper authority to pursue and arrest violent protesters, looters and arsonists,” but adds, “What they don’t have any authority to do is treat peaceful protesters like criminals.

“In extreme circumstances, where violence pervades a city and overwhelms the ability of police to maintain order, the government can take measures like clearing the streets or declaring a curfew.  But Ferguson in 2014 is not Detroit in 1967 or Los Angeles in 1992.  Only a small handful of citizens have engaged in criminal acts in Ferguson.  The main violence on the streets of Ferguson is police violence.

“… Without declaring a curfew – because a curfew wouldn’t hold up in court – police are simply bullying people off the streets at night.”

The First Amendment doesn’t say protests are limited “only during daytime hours, when police feel like letting us speak and assemble,” he wrote.  “By suppressing political protest, police in Ferguson are attacking the heart of the First Amendment.”

Reporters protected

Mark Sableman, a media lawyer for Thompson Coburn, said the police actions against reporters were especially disturbing.

“Reporters are carrying out an important and constitutionally protected role in reporting on events, and that role should be recognized by police.  The distinction between reporters and others is made all the time, in public buildings with press rooms and press tables, courtrooms, at crime scenes, and even in foreign combat venues.  If there was a disruption in the back row of a courtroom, and for some reason the spectators had to be cleared from the courtroom, it wouldn’t be proper to clear out the press row, too.

“It is even more disturbing when, in addition to a general lack of sensitivity to media interests, there also appears to be efforts to suppress coverage.  We see that occasionally in tense scenes when police try to stop photography, or try to take or erase photography.  That is uniformly improper, and sends a red flag to the public, which is entitled to see with its own eyes, through media photography, whatever is happening.  Reports from Ferguson of police commands to shut off cameras are therefore particularly troublesome.”

William H. Freivogel is director of the School of Journalism at Southern Illinois University in Carbondale and a member of the Missouri Bar.

Appeals Court likes “likes,” says they’re speech

The Fourth Circuit Court of Appeals has held that “liking” something on Facebook is speech protected by the First Amendment, reversing a lower court opinion dismissing a suit brought by former employees of a sheriff’s office who lost their jobs after they “liked” the Facebook page of their boss’s opponent in his re-election bid.

Last May, District Judge Raymond A. Jackson held that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” Bland v. Roberts, 857 F. Supp.2d 599 (E.D. Va. Apr. 24, 2012), slip op. at 6, and dismissed the fired employees’ claims.

But after reviewing the nature and consequences of “liking” something on Facebook, the appeals court held that “[o]nce one understands the nature of what [one plaintiff] did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech.” Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 18, 2013), slip op. at 39.

On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance. slip op. at 39-40.

This makes sense. The courts have held that First Amendment protection extends to gestures, signs, and even some actions (“symbolic speech”). A Facebook “like” is no different; depending on the context, it can be an expression of endorsement, approval, or gladness that something was posted. And I’m sure that it can have other meanings that I’m not thinking of. But the point is that pressing the “like” button can, indeed, carry a message that can and should be protected by the First Amendment.

Unfortunately, the Fourth Circuit doesn’t have an official Facebook page to “like.” (Although there’s a page for former clerks.) But you can go to Justia’s Facebook page for Fourth Circuit opinions and like the Bland v. Roberts decision.

By doing so, you’ll be making an expression of support — and enjoy the protection of the First Amendment for doing so.


Eric P. Robinson is co-director of the Program in Press, Law and Democracy at the Manship School of Mass Communication at Louisiana State University.

Upcoming forum focuses on student free expression rights

Mary Beth Tinker, the student suspended for wearing an armband to class to protest the Vietnam War, will speak about student free expression rights at 7:30 p.m. March 11 in a forum at Webster University’s Winifred Moore Auditorium.

Tinker’s suspension became the basis for a lawsuit that went to the U.S. Supreme Court, which decided that student free expression rights do not stop at the classroom door. The logic expressed by the 1969 U.S. Supreme Court did not sway a later court in 1988, which curbed student free expression rights with its Hazlewood decision.

This year marks the 25th anniversary of the Hazelwood case, which originated in St. Louis.

Tinker will be accompanied by a panel of experts on First Amendment law, and they will discuss the impact of the Tinker and Hazelwood decisions.

The event, which is free and open to the public, is co-sponsored by the Society of Professional Journalists (SPJ), Gateway Journalism Review/St. Louis Journalism Review, Gateway Media Literacy Partners and the St. Louis Media History Foundation.


‘Benevolent dictatorships’ lessen First Amendment’s importance

SAN FRANCISCO – The First Amendment is less important today as control of speech passes to private “benevolent dictatorships” such as Google, Facebook and Twitter.

That was the consensus of media lawyers and academics speaking Thursday at a

panel at the Online News Association convention.

“The First Amendment is becoming less relevant today, said David Ardia, a law and journalism professor at the University of North Carolina. The First Amendment does not apply to the private online gatekeepers such as Google and Facebook.

The anti-Muslim film that caused protests and riots in the Middle East this month is an example of the shift in importance from government decisions about free expression to private ones, the experts said.

Pam Samuelson, a law professor at Berkeley, said “the pressure that our government put on Google to block (the movie),” but she noted that Google’s view “was that it was not unlawful in the United States and should be available.”

Added Ardia: “We put a lot of faith in these benevolent dictatorships” such as Google.

The panelists noted that one reason that the online companies favor free expression is that it is good for business. The Web wants information to be free.

But there is a tradeoff to this freedom of information on the Web, they said: the loss of privacy.

“The Web almost has to be free,” said Tony Falzone, deputy general counsel at Pinterest and a fellow at Stanford Law School Center for Internet & Society. “The consequence of that is that everyone has to find a way to make money a different way, and the price of that is privacy.”

Ardia likened privacy on the Web to a “one-way mirror. Advertisers can learn a lot about users, but users do not know how it is being used.”

Some panelists wished consumers could turn their personal information into intellectual property and sell it to the companies they trusted. But others said that, if privacy were property, the firms buying it would just sell it to people the consumer knew nothing about.

Samuelson cautioned against oversimplicity, noting “that there isn’t just one thing called privacy.” Everyone wants to keep others from stealing credit-card information, but not everyone wants to keep advertisers from obtaining information about their searches – information that might channel them more interesting ads.

Added Samuelson: “Privacy is an evolving concept. It is evolving so rapidly, it is hard for publishers to know what to do and advertisers to know what to do.” In addition, she said, the millennial generation doesn’t care as much about privacy as the previous generation.

Sometimes, however, the younger generation is in for a shock. She told of one Berkeley student who got a good job at Cisco Systems Inc. and tweeted to her friends about getting a “fat” salary that went with the job offer. Cisco employees, following tweets about the firm, saw the tweet – and the Berkeley student henceforth has been known at the company as “Cisco fatty.”

Does First Amendment protect ‘Innocence of the Muslims’ film?

Justice Oliver Wendell Holmes Jr. wrote a century ago that free speech didn’t protect a person “falsely shouting fire in a theatre and causing a panic.” Now some news commentators are dusting off that memorable aphorism to suggest the offensive film,

“Innocence of the Muslims,” is not protected by the First Amendment.

The commentators are probably wrong.

Christiane Amanpour put it this way on ABC this week: “There is obviously freedom of expression in this country. There is also a 100-year-old law by the United States Supreme Court which says you can’t [falsely] cry fire in a crowded theater.”

Amanpour is off base for a couple of reasons. Holmes’ line, while colorful and memorable, is not a law. Moreover, Holmes wrote those words in an early First Amendment case where he upheld the conviction of a socialist who circulated leaflets urging men not to comply with the draft during World War I. That kind of speech would clearly be protected today, now that the First Amendment is more robust.

Offensive expression, even burning a Bible or a Koran, would be protected in the same way that burning the American flag is protected speech.

Just because the First Amendment protects the speech does not mean Google must keep it posted to YouTube. The First Amendment applies to the government, not to a private enterprise such as Google.

YouTube took down the movie trailer in Egypt and Libya. Pakistan and Afghanistan also took steps to block it and Indonesia asked that the film trailer be blocked. Otherwise, the trailer remained accessible.

In a statement YouTube said the film trailer was clearly permissible under its terms of service.

“We work hard to create a community everyone can enjoy and which also enables people to express different opinions,” the YouTube statement said. “This can be a challenge, because what’s OK in one country can be offensive elsewhere. This video – which is widely available on the Web – is clearly within our guidelines and so will stay on YouTube. However, given the very difficult situation in Libya and Egypt, we have temporarily restricted access in both countries. Our hearts are with the families of the people murdered in yesterday’s attack in Libya.”

YouTube’s terms of service state: “We encourage free speech and defend everyone’s right to express unpopular points of view. But we don’t permit hate speech (speech which attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status and sexual orientation/gender identity).”

The Justice Dept. announced it was investigating the murders of the 4 embassy personnel in Libya. It was unclear whether that investigation concerned hate crime laws . But prosecution under hate crimes statutes requires a high proof of intent, which could be difficult to muster in this case.

Amanpour commentary:

New York Times story on YouTube:


Illinois General Assembly fails to change controversial law

The Illinois General Assembly failed this month to change the state’s tough eavesdropping law even though federal and state courts have said it violates the First Amendment. Currently, audiotaping without the permission of everyone involved in a con

versation is a felony in Illinois, making it unlawful for citizens to tape encounters with police.

Last month, the 7th U.S. Circuit Court of Appeals ruled that the Illinois law – viewed as the toughest in the nation – could not be enforced as written because it barred recording of public officials’ actions in public. The decision was handed down just before the NATO meeting in Chicago, which attracted large protests and citizen-police confrontations.

A 2-1 majority on the federal appeals court held that the current law likely violates the First Amendment because people probably have a First Amendment right to record the things public officials do in public. Two Illinois state courts have found the law unconstitutional and a federal appeals court in Boston ruled a similar Massachusetts law unconstitutional.

In May, the Illinois House passed a bill to fix the problem by allowing citizens to record police in public as long as the recordings are not altered. But the bill ran into problems in the Senate where the sponsor wants to add provisions to ensure that police can record citizens. The disagreement could not be worked out before the session ended earlier this month.