Judge Says Education Dept Partisan Out-of-Office Emails Violated First Amendment
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A judge ruled that the Education Department's partisan out-of-office emails violated the First Amendment, sparking debate about government employees' free speech rights and the limits of partisan messaging in government.
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https://lawandcrime.com/supreme-court/we-lack-the-power-just...
There is likely a pragmatic view that if they appear to remain relevant they might continue to have some power, even though they already don't.
At the very least, it's not great to send an ex-president who still has substantial support to prison while same ex-president is also spouting conspiracy theories about election fraud and deep state. That doesn't end well.
On the other hand, a strong executive is a feature of the American political system and has its benefits.
Imho, my hope is that the Supreme Court punted on that one by deliberately leaving "official acts of office" vague. And that if push came to shove, election related activities would be defined as not part of presidential duties.
But in 2021, I don't think anyone seriously imagined Trump would actually be President again, and if you don't think he'll actually have any power, yeah, in 2021 it probably looked like a bad optics thing that probably wouldn't make any positive impact to do. And not for nothing, we were also still very much in the middle of COVID-19 as an active crisis.
The clearest Constitutional line would have been impeachment, but the current Republican party cult nixed that one.
At some point, preserving widespread support (including Trump supporters) of elections and the judiciary is more important than not having a dumbass in office for 4 years.
To say nothing of the worst outcome if he had been sent to prison and won an election.
But I would say that if your goal is preserving widespread support of elections and the judiciary from Trump supporters, that is a battle long since lost. Trump and his lackeys already believe any election that isn't a landslide for them was fraud, and has been actively attacking any judge who doesn't go along with his actions.
If we can't preserve widespread support for elections and the judiciary, we might as well put him in prison.
I don't think anyone who spends any significant time around the Trump cult would say this. These people are absolutely devoted to and worship him. When he lost in 2020, my first thought is, he's going to run again in 2024 and every election thereafter until he's dead, and he'll get tens of millions of votes each time.
I expect a lot of his administration to spend their latter years in jail though. Siding with him has basically never paid off for anyone.
Which is the wildest part. Even before his first administration became a revolving door, he’s pretty much always tossed people aside. I almost believe there are people in his inner circle that are “safe”, but then he (the president of the United States) did once rape his own wife - the same one he pushed down a flight of stairs
If you think free speech is important, then don't flag posts as trolling.
What you say is free speech is important as long as it doesn't disrupt MY community.
Free speech is important unless I label you a troll.
Those statements are contradictory.
The communities that are presumably excluding you are exercising their freedom of association.
You may not (indeed, seem not to) realize, but freedom of association is understood to be part of the set of freedoms generally known as freedom of speech/expression.
It's the freedom of people, collectively or individually, to associate with certain others, or not to associate with them.
You are reckoning with the consequences of how you've chosen to exercise your rights, but you have not been denied them. No one is obligated to include you (in the context of public discourse).
https://news.ycombinator.com/item?id=45868679
Or it, you know, those contrarian views? You know the ones.
(Personally, I'm a contrarian about the presence of fire in crowded theaters, and boy have I been silenced)
So, you shouldn’t be silenced, your opinions should be heard, and to the extent they’re reasonable, they should be considered proportional to your ability to influence. The more to which this is prevented or ignored the more unstable the system is.
It's not clear to me that they're guaranteed a platform on their work email, but having been allowed to set a message and then having it removed and then replaced with a different one is not a good look for free speech.
It’s gone. The ACLU itself is pretty anti free speech these days and happily looks the other way when censorship on private social media platforms aligns with their ideological views. People have been writing about free speech issues at the ACLU for about a decade now:
https://www.tabletmag.com/sections/news/articles/is-the-aclu...
Now, they're uninterested in a lot of these issues.
And I say this as someone very liberal.
You can also separately debate where the line is on the topic of say "absolute free speech", but whatever the ACLU used to fight for, it fights for a distinct subset only, now.
Nazi are popular now and sympatisants are political leaders. It is not their defense what defines freedom, it is everybody elses rights that define lack of it.
My question was while is it ok to silence progressives, feminists, left wing, critics of nazi and still be considered free speech activist while "not actively defending nazi" is excluding you from that.
Your only benchmark for free speech is "are nazi helped enough in their quest to oppress others". You dont care about anybody elses rights.
"I'm in favor of gun rights and that's why we need to eliminate the 2A"
I don't think you get it lol. Your arguments are not consistent with you understanding the facts. Who do you expect to convince with unapologetc ignorance?
It still fights for free speech for left wing causes, but not for right.
On a deeply personal level? That doesn't overly bother me, because I am fairly far left wing. But it's somewhat antithetical to -their- stated cause, about "protecting all speech, because as soon as you don't protect some, more and more is attacked".
When trump was first elected I gave those guys like $300/month to fight the good fight against something I was told was a threat to my freedoms. The joke was on me though… because they very same set of people I thought cared about that stuff turned out to very much not care at all about literally anything they claimed to. They let the world burn to play politics.
In the end I wound up voting for trumps second term and will never ever vote for a single democrat again in my life. As for the ACLU, what a shame.
You've got me thinking. I'm sure there's government pressure on social media to not carry certain posts, or allow certain human access. That's a pretty clear 1st Amendment violation. But it shades off. What about say, NSA using it's total information awareness feed of the entire internet to let HN know when a terms-of-service violation happened. Is that OK? What about if the NSA selectively notifies Truth Social of TOS violations? What if the NSA sends an official lawyer around to Facebook to get them to modify TOS a particular way? What if the DoJ sends someone to Paul, Weiss to get them to send someone else around (pro bono!) to hint that modifying TOS a particular way would be beneficial to Bluesky? What if Zuckerberg calls up Trump and asks him how he'd like TOS to read? I'm not sure where the line is.
The line is always where a criminal violation seems likely to occur, including criminal negligence. Otherwise the government has no business butting in, unless subpoenaed as a witness by a court in a civil matter.
Edit: I guess the government also has a right to respond if it, or its policies, are a target of criticism or lies. But it should do this in the court of public opinion, or in an actual court if said speech breaches criminal law or a civil tort. Though in the latter cases it would be held to the highest standard. It has no right to otherwise shut down anyone's speech regardless of where it occurs.
I don't think so. That's pretty weird that a government agency spending taxpayer money to assist with moderation on a private company's website.
Plus the comparison to Europe and that specific case is especially untenable because if the specific case in Europe was in Germany, then they have a special relationship with the swastika.
https://www.youtube.com/watch?v=pKcJ-0bAHB4
Maybe played up slightly for TV? But the impression is given that -in practice- they could not exercise their free speech in person in the US, but were fine broadcasting it in the UK.
Who do you think you are to pretend to know better than these citizens? You seem to want to impose some unbridled "free" speech that seem to have pretty disastrous effects in the only country where it supposedly exists... is this your idea if "freedom"?
We have tested the limits of tolerence at the cost of literal tens of millions of deaths during the last World War in Europe, I don't think we need any lesson on how we should run our societies regarding free speech because we have done a lot of painful learning.
Looking at the direction/unstability of the American system currently it's not impossible that its people will do the same kind of learning soon unfortunately, might be better to focus on this rather that trying export ideas that we democratically rejected, with purpose.
In an "actual democracy" with no constitutional rights, the majority can (legally) genocide the minority - and that's happened more than a few times in "actual democracies" in Europe in the very recent past.
You should probably think deeper about what you're advocating for.
https://en.wikipedia.org/wiki/Tyranny_of_the_majority
https://en.wikipedia.org/wiki/Paradox_of_tolerance
Well, that doesn't mean that
a) they were right to do so then, or
b) a better understanding can't have been reached since then.
The Paradox of Tolerance is a very real thing. If you want to make free speech absolutism a religious principle within your own beliefs, go wild, but for those of us who just want to make this world the best place we can to live in, we have to consider what the consequences of different kinds of speech are.
And the consequence of being tolerant of hate speech is that the speech of those being hated diminishes. Their freedom diminishes. Their safety diminishes. Sooner or later, they are driven out of communities that permit hate speech against them.
"Free speech for all", in the sense that absolutely anyone is fully free at any time to say anything they want, and everybody remains equal in this, is a fantasy. And American jurisprudence has rejected that level of "free speech" since very early on—there are laws against libel, incitement to violence, false advertising, and other forms of speech.
This phrase needs to be used (and understood) more often. People who act in bad faith use this to their advantage and make our society worse. Look at the response to the Kirk murder: people were fired for daring to say something negative after his death.
What can't be tolerated is any law that restricts or hinders freedoms of religion, speech, press, assembly, and petition.
Björn Höcke, the leader of Germany’s far right AfD party, was convicted of using Nazi slogans, and Germany has very clear laws preventing Nazi speech.
And yet, AfD is now the country’s 2nd most powerful party.
Sadly, criminalizing bad speech does not change the minds of those who hold those opinions, nor prevent their spread.
Well, no; because they haven't gotten together the political will to outlaw AfD itself as a Nazi party.
This doesn't show that banning the speech doesn't work; if anything, it shows that being overly tolerant of Nazis...lets the Nazis stay around.
If anything, outlawing it may increase its credibility as an anti-establishment movement.
I've never understood this argument in the least.
We legislate morality all the time. Slightly less so these days, with the reduction of laws against things like same-sex marriage, miscegenation, and such, but what do you think laws against murder, theft, and fraud are?
"That's not legislating morality!" you say. "Those are there to prevent real harms, or damage to society!" Well, so are laws against hate speech. They cause real, measurable harm to the people they are targeted at. The damage they do to society you can see all around you right now.
Our laws and our morals have always been inextricably entangled.
It seems to me that people who make that argument just think that the things they say it about (like hate speech) shouldn't be considered immoral.
If your definition of free speech is "nazi should be allowed to silence thwir critics" then I dont care about your hypocrisy.
There are at least two kinds of speech restriction - not being allowed to say something, and being compelled to say something. To analogize, it's one thing to be told "you're not allowed to rant about the CEO on social media". It's another thing entirely to be told "you have to make 3 posts a day about how great the CEO is".
These federal employees were not just restricted from publicly criticizing the administration - which is fairly typical for federal employees - but they also had their out of office messages changed without consent to point partisan blame for the current shutdown. That's essentially compelled speech, especially since Out Of Office messages still include the employee's name as the From line.
I thought that's exactly what you signed up for when you become a government employee.
I missed the part where government service wasn't about upholding and implementing the law but was instead about support for a particular party.
5 U.S.C. § 7323(a)(1): “An employee may take an active part in political management or in political campaigns, except an employee may not — (1) use his official authority or influence for the purpose of interfering with or affecting the result of an election.”
There’s a lot more after that.
https://www.law.cornell.edu/uscode/text/5/7323
I think you're actually struggling more with the idea that the First Amendment is a restriction on government, not on employers generally.
But the most relevant thing that you don't understand is that government employees are NOT supposed or allowed to act in partisan ways. Your suggestion seems to be that's the point of the job. In fact, that type of activity is prohibited in their official functions and can even be illegal.
As an example, if an agency wanted to perform a marketing campaign, and you decide to do go off script as an employee, you can be fired. There is no legal right to say whatever you want in the context of the job.
This was about partisan speech being compelled by government, which in fact most government employees aren't even allowed to engage in on the job. They are legally required to act in a nonpartisan way.
Failing to act in a nonpartisan way can result in Hatch Act violations, ethics investigations, or even criminal penalties. So yes, having the federal government compel them to engage in partisan speech is a problem.
"[I]t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent."
As for the Hatch Act I believe that the administration is 100% in violation, but it doesn't seem like a 1A violation.
If that were the entirety of your argument, I'd actually be in agreement with you. It wouldn't surprise me if this decision got overturned on those grounds.
But on your second point, the current Court expressed its views on compelled speech and the First Amendment as applied to government workers in the Janus decision and this judge is merely following that precedent. It is stated very clearly in the decision.
And how do you define "partisan" here? How can your job be to implement the policies set by politicians, but not be "partisan."
This case wasn't about a worker making statements themselves. It's about compelled partisan speech by the government.
The US government cannot require employees to express political views unrelated to their job function.
The US constitution places restrictions on the government that don’t necessarily apply to private sector employers (or that don’t apply in the same way).
Plus what is being asserted is not really a factual statement so it can't be a lie.
Politicians are allowed to say things like "my opponent believes such and such".
I think a close analogy would be if I send a letter, but sign your name. If a reasonable person would think you wrote the letter, then this might qualify as defamation. IANAL
IANAL, but I think directly writing a Hatch act violation on behalf of a person would fall under defamation per se, not defamation per quod, and thus harm would not have to be demonstrated.
https://www.findlaw.com/injury/torts-and-personal-injuries/w...
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