Chill Out, Colorado. Marijuana Mags Are Protected Speech

This post brought to you by summer programs intern, Justin Haddock. Justin is a student at Reed College where he studies political science and biology. He is interested in public policy, behavioral economics, and willful hypocrisy.

Smoke all you want in Colorado, but don’t read about it. Such stated a provision in a bill that would have required vendors to treat marijuana-themed magazines like pornography and place them behind the counter. The provision prompted Media Coaltion and the American Civil Liberties Union (ACLU), a member of our coalition, to file two lawsuits in federal court against the state on behalf of magazine vendors.

In May, Colorado Gov. John Hickenlooper signed a number of bills into law to delineate the boundaries of the newly legal pot marketplace in the state.

The proposed magazine restrictions didn’t stand for long.The Colorado State Department of Revenue has temporarily blocked the the proposed restrictions on the sale of marijuana-themed magazines and has requested that a federal judge declare such restrictions unconstitutional.

“Clearly, this is speech protected by the Constitution,” said Joyce Meskis of the Tattered Cover Bookstore, one of the plaintiffs of the case. “It has been sold, borrowed and read by people who have had rightful access to this material for years and years. To limit this speech now would be a travesty.”

SCOTUS Bans Demonstrations on Grounds

The following post was written by NCAC’s summer legal intern, Ryan Gander. Ryan is a current student at Columbia Law School. His interests include philosophy, civil liberties, science fiction, and video games.

The Supreme Court has a troubled relationship with the First Amendment and that’s not even talking about what goes on in the courtroom. Since 1949, federal law has broadly prohibited demonstrations within the Supreme Court building and grounds. That restriction came under fire last Tuesday when Judge Howell of the Federal District Court for the District of Columbia ruled that such a blanket prohibition on demonstration was unreasonable and over-broad and in violation of the First Amendment.

While the Supreme Court has an interest in allowing visitors to enter and exit without being blocked by protesters, creating a First Amendment-free zone is not an acceptable way to accomplish that goal, Judge Howell reasoned.

Two days later, the Supreme Court responded by instituting a building regulation prohibiting, under threat of criminal punishment, “demonstrations, picketing, speech-making, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers” within the Supreme Court building and grounds.

Let’s first clarify exactly what this regulation isn’t, so we can see why it is so problematic:

• First, this is not just a ban on unusually loud protests that would disturb court proceedings. A separate court regulation from 2000 already prohibits “noise disturbances,” so the new regulation can’t claim that benefit.
• Second, this is not just a ban on behavior that would block visitors from entering or exiting the Supreme Court grounds or building. On the contrary, this regulation bans all forms of demonstration, including some—such as vigils—that are extremely unlikely to impede traffic. If the Court wants to prevent protesters from blocking the doors, it could easily impose a regulation saying precisely that (instead of censoring countless peaceful, non-intrusive demonstrations).
• Third and finally, this regulation is not justified by one of its major supposed goals: maintaining the appearance of the Court as a neutral body not swayed by external influence. Allowing protests on Supreme Court grounds wouldn’t make the Court weak or allow it to be controlled by outside influences, but it would demonstrate commitment to the values embodied in the First Amendment. In any case, it’s not clear that appearing neutral is a worthy goal in the first place. After all, Supreme Court justices are human beings and, like it or not, they come with biases and preconceptions just like any other person.

When it comes down to it, there simply isn’t a compelling reason in favor of the Court’s blanket prohibition on demonstration. The new regulation has much the same effect as the 1949 law: it significantly—and unjustifiably—limits the First Amendment rights of anyone who might want to air their grievances to the Supreme Court.

Youth Free Expression: Learning and Coping through Open Conversation

Books like “When the Leopard Lost His Spots” can be useful tools to help kids understand gender and identity

Every parent wishes their child could be spared the worst of life. War, lingering sickness, hurt and hate: all of these are things most would rather keep far distant from the lives of their children. Yet, we are all called to confront the sometimes harsh or confusing realities of our world, and these experiences can sometimes be enriching and educational. Parents may fret about when the right time to talk to their kids is and what they should say. Broaching those conversations can be made easier by using art, literature and film.

NPR’s Elizabeth Blair looked into ways in which educators and youth specialists are using media to introduce tough subjects in a report titled “How to Introduce Kids to Tough Topics? Art and TV Can Help.” The story provides some compelling arguments for the use of media and free exploration to help teach kids about some of the darker and more difficult facets of human nature, life, and history. One thing the story and the work of those it features makes clear is that censorship of problematic or difficult material is NOT the way to teach our kids about the world.

The report outlines various projects—from mainstream TV shows to history education initiatives—designed to teach kids about the kinds of things that can sometimes be easier to just ignore. It highlights kid’s books that explore issues of parental gender identity and the impacts of cancer on a family unit, as well as educational exhibits drawing attention to the atrocities of the slave trade or 21st century genocide.

Linda Ellerbee, the no-nonsense host of Nickelodeon’s kid’s news program Nick News, was interviewed for the report. ”Our viewers are smart people,” she said. “They are merely younger, less experienced and shorter.”

Ellerbee is not in favor of editing or abridging the world to make it easier on our kids. Instead, she advocates a free and honest discussion with children, asking that we respect their intellectual abilities and curiosity. She encourages kids to be inquisitive and to ask questions about any topic that interests them.

Kids should not have to self-censor, but they often do when they have questions about a topic that they may feel is too mature for them—something we’ve been saying for a long time. Allowing young people access to information and resources, from fiction (including novels like The Perks of Being a Wallflower) film and television to educational resources like Holocaust museums, fosters a healthy independence and can lead our kids to become well-adjusted and perhaps more socially proactive adults.

NCAC’s Youth Free Expression Project (YFEP) tackles the kinds of questions raised by this report. The Project’s mission is as follows:

“YFEP counters the growing hysteria around young people’s access to culture to send the message that excessive attempts to control and restrict what kids read, create, watch and play are counterproductive and to support policies that emphasize educating young people as to how to be literate participants in contemporary culture.”

For Free Expression, Privacy is a Must

The nation is abuzz this week following Edward Snowden’s leaks about the NSA’s comprehensive (and fully unconstitutional) surveillance program (Click here for the Guardian’s live feed of Snowden-related news). Those of us who spend our time protecting civil liberties are appalled at the behavior of this administration and its intelligence and security agencies, and perhaps even more disturbed by the rhetoric coming out of the white house following these crucial leaks.

(This is a REALLY big deal, so please check out what our Coalition members are doing about it. The ACLU is launching a variety of countermeasures and suits against these illegal surveillance policies– check out their homepage. UPDATE: ACLU files lawsuit against the Obama administration. The Electronic Frontier Foundation (EFF) has put together a letter that NCAC has signed on to. And PLEASE, everyone, check out the Stop Watching Us campaign and sign the unified letter to congress!)

But there’s something that makes this news even more shocking to us at NCAC and to anyone out there concerned with free expression, and that’s the timing of this story. Just last week, Frank LaRue of the UN Human Rights Council gave a report confirming that privacy is absolutely essential for free expression within a given society. The report provided grave warnings about the detriments of a surveillance state and the catastrophic impacts of surveillance on our most basic constitutional rights. What follows here is a blog post I started last week and was just getting ready to post before this whirlwind of news broke out:

The Founding Fathers knew it– now we do too! A fresh new report by the UN Human Rights Council has firmly stated that the right of citizens to privacy is essential for keeping speech and expression within democracies vibrant and free.

(Check out Carly Nyst’s excellent piece on Privacy International)

The landscape of state surveillance changed drastically after the attacks of 9/11. Now, nearly 12 years later, the UN Human Rights Council is warning us about the costs of heightened state surveillance measures, and apparently (this might seem obvious to a lot of you), one of the first victims of large government surveillance programs is the right of the people to free expression. Whether the United States will heed this wise warning is yet to be seen.

What today’s UN report makes clear is that free expression and privacy, two of our most cherished rights, might well depend on each other to exist. Where our privacy is in question, so too is our right to speak our minds.

These days, we leave the indelible traces of our selves and actions scattered across a vast digital landscape, and since technology has been progressing far faster than our constitutional rights, the government has discovered new places  through which to pry and peek at us. Since 9/11, issues of national security have trumped questions of privacy (“freedom isn’t free,” they tell us). Many people seem willing to forfeit some of their privacy in favor of personal safety. But privacy, it seems, is more than simply a preference of introverted people: it’s also a key element in preserving expression, our first and dearest freedom.

The UN Human Rights Council report focuses largely on the role of technology in current state-run surveillance programs. Following that discussion, the report outlines the ways in which the right to privacy and the right to free expression are closely interrelated (this is section IV item A of the report). Here, the report states, “Undue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas.” The message of this report is crystal clear: the right to free expression and the right to basic privacy are far more closely related than the UN had previously acknowledged.

So why is privacy essential for free speech? For one thing, there are things that sometimes need to be said that people might have a difficult time saying publicly. The ability to speak anonymously, or to engage in conversations without putting your identity on the line, is essential in maintaining a free political discourse (Item E of the UN Report outlines issues of anonymity).

Is it theoretically possible for a surveillance state to allow free speech? Could our speech be monitored, while remaining judiciously and carefully uncensored? This is what the Obama administration wants us to believe when it comes to current U.S. domestic surveillance programs: that while wiretapping and electronic surveillance are taking place, we can rest assured that only information relevant to national security is being tracked, and nobody’s right to free expression will be challenged.

This is not how things work in the real world. Without guaranteed privacy, people self-censor. Dissent is necessary for a healthy democracy, and, if it isn’t a direct incitement to violence, is protected speech under the constitution. But do we trust the government to correctly discern between non-violent (legal) political dissent and a threat-at-large to national security? The answer is simply no. We hold privacy to be a basic human right because it is our most basic check against government failures, mistakes, and corruptions. To speak freely, as citizens, we speak privately. Public exposure is a normalizing and standardizing force, and we all know that homogeny is enemy to democracy and friend to minority-oppressive regimes. We are ourselves in private, and in private we are free to express our true beliefs.

I cannot stress enough how important this report is for the human rights and free speech communities! Let this be a reminder to us all that the fight for privacy and the fight for free expression are one and the same.

Kudos to the Kids Right to Read Advocates of Glen Ellyn!

–UPDATE– Last night the board voted 6-1 to keep the book. They will be instating new policies that will hopefully balance parental concerns with students rights and the professional judgments of teachers.

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The students, teachers, parents and citizens on the ground in Glen Ellyn have been working hard to spread the word about tonight’s board vote there to (hopefully) restore Stephen Chbosky’s The Perks of Being a Wallflower. 

Maddie Giffin and Maddie Howard, students at Glenbard West High School, made this video and have been leading a social media campaign using the hash tag #keepthebookalive. They even met Judy Blume and captured her thoughts about the ban when she visited Chicago last weekend.

Perks has been the center of debate since the end of April when the District 41 school board heard and then rejected a committee recommendation to keep the book in classroom libraries in Hadley Middle School. The book was a selection for independent or free reading which was chosen by a small group for a report. Two parents filed a complaint about their book after buying it for their daughter to read as part of the small group free reading.

Much of the debate has focused on how much the district should do or already does to ensure that parents are aware of their child’s reading choices and that teachers offer alternative options when a book isn’t right for a particular student. Teachers in District 41 have worked with the administration to try and find a middle ground solution that informed parents of their responsibilities as well as rights and did not infringe on the rights of other students or the professionalism of the educators.

Wrestling with internet hate speech

In the coming weeks we will be featuring posts from our smart and savvy summer interns. This post is by programs intern Eli Siems. Eli is a recent graduate of SUNY New Paltz with a degree in English. He is passionate about literature in all forms, particularly poetry, and his love of letters has led him to join the fight to protect free speech, both at home and overseas. 

A recent protest campaign with the twitter hashtag #FBRape succeeded in getting a series of violently sexist pages removed from Facebook under the site’s hate speech policy, even after Facebook moderators repeatedly denied abuse reports regarding those same pages. How did #FBRape get it done? Through the power of advertisers, of course: #FBRape’s mission was an overnight success once Nissan was on board.

The campaign has encountered little, if any, opposition. What moron would defend a page with the title “raping a pregnant bitch and telling your friends you had a threesome” or sites with images of women who have been violently attacked? But does the fact that something may be offensive beyond reasonable defense mean it should be banned as hate speech. Therein lies the rub.

Hate speech is a very difficult thing to define. And, much as Facebook insists it does not ban speech that is just offensive, the line between the two is hard to draw. The site’s terms of service agreement explicitly states:

“We do, however, allow clear attempts at humor or satire that might  otherwise be considered a possible threat or attack. This includes content that many people may find to be in bad taste (ex: jokes, stand-up comedy, popular song lyrics, etc.).”

But how do Facebook moderators – a handful compared to the 1.11 billion active users – distinguish between an off-color misogynist joke and hate speech? Well, as you may suspect, the line is subjective and often misapplied.

Consider the Facebook page mentioned above:”raping a pregnant bitch and telling your friends you had a threesome,” an example used by #FBRape cofounder Laura Bates in a recent blog post. While the page was apparently inviting members to “like” a clearly criminal act of sexist violence, its title is actually a quote from the song “Tron Cat” by rapper Tyler the Creator (find the lyrics here, and click the line in question to reveal textual analysis by rap-savvy members). A commentator on rapgenius.com analyzes the lyric:

“This line can be seen as self-deprecating as well as a morally reprehensible boast: Tyler’s implying that fucking a pregnant girl is the only way he could have a “threesome,” and even if he resorted to that he wouldn’t be able to score consensually, so the act would have to be rape.”

That doesn’t sound like incitement to violence against women to me. You might think it’s a bad joke, but Facebook protects those. This is the kind of thing the free speech community should be on the lookout for. We can’t let people’s hatred of hate speech (however justified) lead to mass banning of anything potentially controversial. If, after a complete investigation, a page is found to contain hate speech, as defined clearly and narrowly, then by all means, take it down. But is this even possible?

There may be a better way for hate speech to be handled by the Facebook community: That community is non-anonymous, which means that if you’re spouting hate speech, people can find you. They can even hate right back. Ugly jokes are more damaging to their creator than to the group they attack. It may be better to attack bad speech with more speech rather than by silencing it.

Remember your commitment to free speech, Facebook! It’s not too late.

Help! Speak Up Against The Ban of “The Perks of Being a Wallflower”

Over a month ago now, the Glen Ellyn school board voted 4-2 to ban the book The Perks of Being a Wallflower from middle schools in District 41. The district’s ad hoc committee of teachers, parents and administrators read and assessed the book, after the parents of a student filed a formal complaint about the its content. They advised the district to keep the book, which was not required reading but rather was selected as a free reading choice.

(If you’re already thinking “Sign me up!” skip to the bottom for ways to help.)

Now, 6 weeks later, the board (now with some new members) is set to vote on June 10. Students have spoken in front of the board asking to bring the book back. Teachers have asked again and again to reinstate the book; parents have too. Others have expressed support for the ban, calling the book “inappropriate.” In a board meeting last week, two board members cautioned against the slippery slope of censorship and against micromanaging teachers.

Today, this action alert came out from Illinois Family Institute. We’re wondering now if they weren’t behind it the entire time.

The teachers have prepared new letters to send home that will advise parents to check in with their children about free read and to let teachers know if they have an issues with their selections, so they can choose other texts. In their minds, they also want to preserve student choice and students constitutional rights as well as be respected for their professional expertise.

One board member denigrated the letter saying it used “pretty library language.” He feels there should be a more specific definition of what is “mature content” and “sexual content” and “inappropriate content,” evidently unaware that choice is offered because defining such terms is difficult, and doing so would require arbitrary and subjective judgments.

The new system, which requires parents read and sign a slip to indicate they’ve read and understood the mailing, isn’t good enough for the new board president, Sam Black, who has stated he would vote again to ban the book. Need I point out that none of the board members are themselves teachers or have any pedagogical experience? They are bankers, real estate agents, former lawyers.

We and other free speech and civil rights organizations are composing a second letter (we already sent one letter on behalf of Kids’ Right to Read) and are encouraging Glen Ellyn residents to speak up for the rights of these students to choose either way what they wish to read and learn.

To be clear, we support those who speak their minds on both sides of this issue. Those who wish the ban are certainly free to speak their minds. However, at the heart of this issue is the fact that by banning this book, they have removed choice from other parents and students who also have a right to choose what they will and will not read based on their individual values and the pedagogical worth of the text.

This text is important, it saves lives and there has been no educationally sound reason to remove it.

Sign the petition and state your support of the Freedom to Read. Share this post or the petition with your Facebook and twitter feeds. Send an e-mail expressing your support in 2-3 sentences to the board members of Glen Ellyn District 41:

sblack@d41.org, jkenwood@d41.org, jbochenski@d41.org, dellis@d41.org, pescalante@d41.org, enelson@d41.org

The last way you can help combat censorship issues like this one is to support Kids’ Right to Read with a donation, however big or small, to NCAC.