Tag: First Amendment

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At Large Opinion

Free Speech?

Sean Hannity (Photo: The White House | Public Domain | Wikimedia Commons)

You’re likely to be hearing a lot more about the landmark Supreme Court decision New York Times Co. v. Sullivan in the coming weeks.

This is the seminal case upon which our nation’s libel law has been adjudicated since 1964.

The case involved an appeal by the Times against L.B. Sullivan, a commissioner of the city of Montgomery, Alabama, who had sued the Times and “four individual petitioners, who are Negros and Alabama clergymen,” based on the claim that an ad taken out in the Times by the defendants made false accusations and that he was entitled to libel damages.

The Alabama Supreme Court had ruled in Sullivan’s favor. The U.S. Supreme Court, however, overruled the state’s decision on the grounds that “mere negligence or carelessness is not evidence of actual malice or malice in fact,” and determined that the First Amendment requires the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.

In recent years, conservatives, including former President Donald Trump have railed against the Times v. Sullivan decision, claiming it grants media outlets permission to publish false narratives under the protection of the defendant having to prove evidence of malice or intention. Here’s Trump in 2016: “I want to open up our libel laws so when the New York Times and Washington Post write purposely negative and horrible and false articles, we can sue them and win lots of money.”

In 2019, Justice Clarence Thomas further stirred the kettle, writing: “New York Times v. Sullivan and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”

And just last week, not to be outdone by anyone in his ongoing choke-the-woke agenda, Florida Governor Ron DeSantis upped his attacks on the “leftist mainstream media,” saying he would push to loosen Florida’s libel laws: “I’d say these companies are probably the leading purveyors of disinformation in our entire society right now.”

Here’s some free advice for these folks: Be careful what you wish for. Libel reform cuts both ways, as Fox News is now finding out the hard way.

The voting machine company, Dominion, is suing Fox for $1.6 billion for promoting fabrications about it regarding the 2020 presidential election. The case will likely turn on the court’s interpretation of Times v. Sullivan and whether Fox knew its hosts’ promotion of lies by election-deniers such as Sidney Powell, Rudy Giuliani, and others were false.

Turns out, they did. Shocker, I know. In a court document released last week, Dominion claimed that “literally dozens of people with editorial responsibility — from the top of the organization to the producers of specific shows to the hosts themselves — acted with actual malice.” And the company had receipts, dozens of pages of them.

Here’s a sample email exchange between hosts Tucker Carlson and Laura Ingraham:

Carlson: “Sidney Powell is lying by the way. I caught her. It’s insane.”

Ingraham “Sidney is a complete nut. No one will work with her. Ditto with Rudy.”

There are dozens more examples of internal communications between Fox News hosts, including Trump acolyte Sean Hannity, disparaging the false claims against Dominion. Here are a few other samples of various hosts’ descriptors of their nightly guests: “Ludicrous.” “Off the rails.” “Fucking lunatics.” “Complete bullshit.”

Yet, the election-deniers were put on the air night after night and allowed to pump their duplicitous bilge without pushback. Most troubling for Fox is that the network’s knowing duplicity extended all the way to the top. Dominion’s filing includes records of Fox News chairman Rupert Murdoch calling the voter-fraud claims “really crazy stuff,” among other things.

But the “really crazy stuff” went on the air in prime time for weeks, duping millions of Fox News viewers into believing the “Big Lie” that Dominion’s machines had altered millions of votes and helped steal the 2020 election for Joe Biden.

“Fox knew,” the Dominion filing declares. “From the top down, Fox knew.”

Fox News responded: “The core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan.”

Good luck with that. And you might want to give ol’ Clarence a call.

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News News Blog

UTHSC Sued in First Amendment Case on “Sexual” Social Posts

CREDIT: Kimberly Diei UTHSC Student Courtesy of FIRE

Kimberly Diei UTHSC Student Courtesy of FIRE

A University of Tennessee Health Science Center (UTHSC) pharmacy student sued the university in federal court this week, alleging it violated her First Amendment rights for “crude” and “sexual” social media posts. 

Kimberly Diei filed a First Amendment lawsuit against the school Wednesday with help from the Foundation for Individual Rights in Education (FIRE). The move came after the student was reprimanded by the school for some of her social posts, including comments on a trending discussion on Twitter about the song “WAP” by Cardi B and Megan Thee Stallion.

In September 2019, a month after enrolling at UTHSC, the school received an anonymous complaint about Diei’s Instagram and Twitter accounts — and that she was now under investigation for that content, according to FIRE.

Diei went before the college’s Professional Conduct Committee (PCC). Although her accounts are operated under an alias, the committee said that she violated university policies because her posts were “crude” and “sexual.” The Professional Conduct Committee never told Diei exactly which school policies she violated nor which posts were in question, according to FIRE.

Kimberly Diei UTHSC Student Courtesy of FIRE

“It’s just a matter of time before they come back for another investigation into my expression on social media,” said Diei, who is seeking her doctorate in pharmacy with an emphasis on nuclear pharmacy. 

Diei is backed by the Foundation for Individual Rights in Education (FIRE).  Diei’s suit argues that colleges cannot arbitrarily police a student’s personal expression outside of school and by doing so, violates her First Amendment rights.

“UT spied on my social media activity — activity that has no bearing on my success as a pharmacist or my education. I can be a successful and professional pharmacist as well as a strong woman that embraces her sexuality. The two are not mutually exclusive,” says Diei. 

Diei was required to write a letter reflecting on her behavior. She agreed, although she had reservations about the policy violating her First Amendment rights.

“It’s so important to me to just have my voice, because people that look like me are often told ‘be quiet, stay in the back,’ and that just does not suit my personality,” Diei said. “I’m not asking for approval. I’m asking for respect.”

August 2020, less than a year later, the committee investigated Diei again. They presented screenshots from her social media accounts. In one tweet, Diei contributed to a trending discussion on Twitter about the song “WAP” by Cardi B and Megan Thee Stallion, suggesting lyrics for a possible remix. In another, Diei referenced a popular Beyoncé song.

“The First Amendment protects the right of students to suggest lyrics for a Cardi B remix on Twitter and Instagram. Period,” said FIRE attorney Greg H. Greubel. “Kim is an authentic and successful woman, and FIRE believes that it is important to show the public that students like Kim are capable of being successful professionals while also being free to personally express themselves on social media. Kim is standing up for every American who hopes to have a personal life in addition to their professional life.”

A UTHSC official said Friday the school does not comment on pending litigation.

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News News Blog

After Being Excluded From Media List, Local Journalist Sues City, Mayor

Wendi Thomas

The editor of local news organization MLK50: Justice Through Journalism is suing the city of Memphis for refusing to include her on its media advisory lists.

The complaint was filed in federal court Wednesday by attorneys for the Reporters Committee for Freedom of the press on behalf of Wendi Thomas, editor, publisher, and founder of MLK50.

The lawsuit alleges that the city, along with Memphis Mayor Jim Strickland, and chief communications officer Ursula Madden, violated the U.S. and Tennessee constitutions by repeatedly denying Thomas’s requests to add her email address to the media advisory list.

Paul McAdoo, Tennessee’s staff attorney for the Reporter’s Committee Local Legal Initiative, said “it is flat unconstitutional for the city to disrupt and interfere with Ms. Thomas’ ability to gather and report news because it doesn’t like the content of her reporting.”

After multiple attempts to get the city and its officials to stop its retaliatory exclusion of Ms. Thomas from the media list, she has been left with no choice but to ask a federal district court to enforce her rights under the First Amendment and Tennessee Constitution. The administration has said it strives to be the most transparent and communicative in the city’s history, yet retaliation against Ms. Thomas and MLK50 for past coverage of the city is unlawful and ultimately shuts out the Memphis community relying on them for information.”

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According to the complaint, Thomas sent seven emails between May 2019 and January 2020 to the city asking to be included on the list, but was not added.

The lawsuit is asking the court to require the city to add Thomas to its media list immediately, publish explicit standards for including reporters and news organizations on its media list, and to provide notice to any reporter prior to removing them from the list, giving them an opportunity to contest it.

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“No politician likes being the subject of critical coverage, but that comes with elected office, and I would be abdicating my role as a journalist if I failed to hold local government, including the city of Memphis accountable,” said Thomas. “I am disappointed that it’s come to this since the fix is so simple: Just treat me and MLK50 like you treat other journalists and news outlets.The time and energy I’ve spent trying to get the city to respect my First Amendment right, I could have spent reporting on and for residents struggling to make ends meet and other marginalized groups.”

This comes after McAdoo sent a letter to U.S. District Court Judge Jon McCalla last week, alleging that by refusing to add MLK50 to its media contact list, the city is violating the 1978 Kendrick Consent Decree. The letter argued that the city’s treatment of MLK50 is “inconsistent with the city’s obligations under the Kendrick Consent Decree.”

The consent decree instructs the city not to “disrupt, discredit, interfere with, or otherwise harass any person exercising First Amendment rights.”

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News News Blog

Monitor in Police Spying Case to Seek Feedback at Community Forum

CREDIT: Brandon Dill

Brandon Dill

Protesters and police officers face off during the 2016 Hernando de Soto bridge protest


The team appointed to monitor the Memphis Police Department’s (MPD) compliance to a federal judge’s ruling on police surveillance wants to hear from the community at a public forum this Thursday.

After the American Civil Liberties Union (ACLU) of Tennessee won a lawsuit against the city on behalf of Memphis activists last year, U.S. District Judge Jon McCalla appointed former U.S. Attorney Ed Stanton of the Butler Snow Law Firm to lead the independent group tasked with monitoring MPD’s progress and adherence to the court’s orders.

The question at hand during the August trial: Did MPD violate the 1978 Kendrick Consent Decree which prohibits political surveillance and interference of an individual’s First Amendment rights? McCalla ruled that MPD did violate that decree by actively pursuing covert surveillance of four local activists.

The city violated several areas of the consent agreement, McCalla ruled, including: intercepting phone calls and electronic communications, using a fake Facebook profile of “Bob Smith” to learn of activists’ activities, and failing to properly inform officers of the parameters of the 1978 ruling.

✖ Thursday’s meeting will take place at Mississippi Boulevard Christian Church in Midtown from 6-7:30 p.m. click to tweet

Now, in an effort to “encourage transparent dialogue,” the monitoring team will hold a series of community meetings to share updates on the group’s work and to allow the community to give feedback on the city’s efforts to comply with the 1978 consent decree.

Thursday’s meeting will take place at Mississippi Boulevard Christian Church in Midtown from 6 p.m.-7:30 p.m. Attendees will have the opportunity to ask the team questions and learn more about MPD’s progress with compliance. Representatives of the ACLU will also be at the meeting to answer questions.

A second public forum is tentatively slated for the fall. The monitoring team also launched a website this month to keep the public informed on the group’s efforts. 


Apart from appointing the monitoring team, McCalla also ordered MPD to revise its policy on political surveillance, train officers on the decree, establish a process for criminal investigations that may result in political intelligence, establish written guidelines for using social media searches, maintain a list of those searches, and submit that list to the court four times a year.

On August 27th, the monitoring team will return to McCalla’s courtroom to give a 90-day progress report. At an April hearing, McCalla said he would like to have a draft of MPD’s revised information-gathering policy by the August court date.


Categories
Letter From The Editor Opinion

On the Record

Last week, the Flyer‘s Toby Sells reported that the Gannett Corporation, which owns the Commercial Appeal, was refusing to pay severance to 23 former employees the company had laid off in April.

Memphis Newspaper Guild president Daniel Connolly said current employees had hung signs around the newspaper’s offices that read, “Shame on Gannett — Pay the Severance.” Connolly added that the Guild had filed a union grievance and federal complaints with the National Labor Relations Board.

Let’s forget for a moment that it’s likely, given the Trump administration’s track record on such matters, that the National Labor Relations Board offices are completely empty and that the agency’s head is a former coal mining CEO. The fact is, Gannett holds all the cards and will do exactly as it pleases with its money and its dwindling number of human resources.

On Monday, Gannett announced that it would sell the CA‘s iconic headquarters building at 495 Union and seek smaller office space elsewhere (in Memphis, theoretically). That will take care of those pesky signs, at least.

My theory is that the editorial staff will meet at Cafe Eclectic at 8:30 each morning, then go work from home. I mean, how hard is it to put out an 18-page daily paper with six local stories, anyway? Just kidding. Sort of. It is, however, becoming increasingly clear that Gannett sees the CA‘s future as digital, and the paper product is suffering because of it.

Whether in print or digital, we need great Memphis journalists. And we need for them to be treated fairly, not like replaceable factory widgets. In fact, we need journalists, now more than ever.

Just look at what’s happening in Washington, D.C. The Senate outlawed television journalists from interviewing Senators outside the Senate chambers last week. There is no reason for this, unless it’s to make it easier to keep the American people in the dark. Or unless you believe South Carolina Senator Tim Scott’s explanation that television cameras could catch the PIN numbers of senators at the Senate ATMs. (That’s actually true. Scott’s PIN is 4267. Go try it.)

It’s all so absurd.

Even Tennessee Senator Bob Corker acknowledged that the optics weren’t great: “I understand, in tandem, that it’s maybe not so good” to restrict press access while health care is drafted privately. Ya think, Senator? What a profile in courage.

Meanwhile, as Republicans were behind closed doors creating a bill that will reportedly take away health care for 23 million Americans, greatly restrict and reduce Medicare and Medicaid benefits, put lifetime caps on insurance company pay-outs, and provide huge tax breaks for the rich, the White House began denying reporters the ability to use cameras or recording devices in certain press conferences.

Listen, folks, when our government officials start restricting the press, it’s for a reason: They don’t want you to know what they’re doing. They want to have deniability. If interviews and press conferences aren’t recorded, it’s much easier to claim you were misquoted by the Fake Media™. It’s much easier to claim, as Attorney Jeff Sessions did approximately 6,724 times in his Senate testimony last week: “I do not recall …” The reason he didn’t flatly state, “I didn’t do that …” is that he knows there may be recorded evidence that will counter his conveniently faulty memory.

There’s a reason journalists want to put people “on the record.” It’s not just a phrase. It’s one of the key Constitutional safeguards of our way of life. The first sentence in the First Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.”

There’s a reason it’s the first.

Categories
Letters To The Editor Opinion

Letters to the Editor

Kudos

Kudos to the Flyer and Jackson Baker for his succinct and invaluable guide to the upcoming election (“A Sleeper Election?,” July 31st issue). There are many of us who rely on your publication and Baker for our political “fix.” Thanks for what you do.

Julio Martinez

Memphis

Creatively Designed

Regarding Charles Gillihan’s letter (July 31st issue): Gillihan is trying to distance himself and the intelligent-design movement away from its predecessor “creation science.” The lecture delivered by Barbara Forrest (“Q&A with Barbara Forrest,” July 24th issue) was not to “offer the alternatives.” That was not her job. Her job was to show in court during the Kitzmiller v. Dover Area School Board trial (and later to her lecture audience) that intelligent design evolved from creationism.

She showed convincingly that intelligent design is creationism and thus religious. By doing so, “intelligent-design creationism” was judged unconstitutional and in violation of the First Amendment as a subject to be taught in public school science class.

I suggest Gillihan read the trial transcript at creationismstrojanhorse.com.

Chris Stahl, Director

Memphis Freethought Alliance

Those in the Discovery Institute and the intelligent-design/creationism movement use code phrases such as “logical analysis,” “critical thinking,” and so forth. Another common one is “teach the controversy.” The irony of those code phrases is that the intelligent-design creationists often do exactly the opposite.

Intelligent-design creationists rarely apply critical thinking, logical analysis, or teach the controversy strategies to ideas about creationism or the Bible (specifically the Book of Genesis). Controversy is rampant in the creationism camp: “young-Earth creationists” argue with “old-Earth creationists.” “Gap creationists” contend that God created and then annihilated man and later annihilated all of humanity except two people. By contrast, many biblical scholars believe that the creation story in Genesis is actually the splicing together of more than one Jewish creation story with varying chronologies.

The point is that there is a lot of debate amongst the Christian communities about the creation story. Intelligent-design creationists instead focus on an imaginary controversy among scientists over the theory of evolution. They also conveniently ignore the fact that a significant number of Christians embrace the scientific theory of evolution.

Jason Grosser

Cordova

Gillihan’s assertion that there are non-creationists who believe in intelligent design is absurd. If anyone takes the time to follow the careers of these people, they were all associated with some sort of fundamentalist religious organization before they got into intelligent design.

Bill Runyan

Memphis

Gillihan wrote: “There are many non-creationists who hold to intelligent design.” This is not so. Creationism is intelligent design. Barbara Forrest did an excellent job during the trial of proving conclusively that in all documentation over the last 10 years, the phrase “intelligent design” has been substituted for “creationism.”

Why? Because the Supreme Court ruled that teaching creationism as science is unconstitutional. This is absolutely clearcut. Creationism equals intelligent design equals religious instruction.

Steve Aldred

Whiteville

More Fireworks

Regarding Bruce VanWyngarden’s recent 4th of July fireworks Editor’s Note (July 10th issue) and subsequent letters to the editor: There has been serious congestion and gridlock downtown during and immediately after any large public event in the last 25 years or so. And for the last several years, anytime between the hours of, say, 9 p.m. and 3 a.m. Fridays, Saturdays, and some Sundays, the same problem exists, which is why “no cruise” areas were initiated.

Our family chose to view the fireworks from the top of one of the multi-tenant buildings in the central business district. Afterward, we rode down the elevator to our condo and then walked to dinner, just off South Main. Rather than moving to Germantown, I say support downtown Memphis. Buy a condo!

J. Tucker Beck

Memphis

Editor’s Note: In last week’s Politics column, the following names should have been spelled: Phil Trenary, Jim McGehee, and Michael Floyd.