This is the third installment in Reason's four-part documentary series titled "Cypherpunks Write Code." Watch part 1 and part 2. In 1977, a team of cryptographers at MIT made an astonishing discovery: a mathematical system for encrypting secret messages so powerful that it had the potential to make government spying effectively impossible. Before the MIT team could publish a description of how this system worked, the National Security Agency (NSA) made it known that doing so could be considered a federal crime. The 1976 Arms Export Control Act (AECA) made it illegal to distribute munitions in other countries without a license, including cryptography. The penalty for violating AECA was up to 10 years in prison or a fine of up to one million dollars. It was the beginning of the "crypto wars"—the legal and public relations battle between the intelligence community and privacy activists over the rights of citizens to use end-to-end encryption. Many of those who were involved in the crypto wars were associated with the "cypherpunk movement," a community of hackers, hobbyists, and computer scientists, which the mathematician Eric Hughes once described as "cryptography activists." The crypto wars continue to this day: On October 11, 2020, U.S. Attorney General William P. Barr issued a joint statement with officials from six other countries that implored tech companies not to use strong end-to-end encryption in their products so that law enforcement agencies can access the communications of their customers. The government's stance traces back to World War II, when Allied code-breakers helped secure victory by deciphering secret messages sent by the Axis powers. "And that is the origin of the regulations that said, 'This is munition, this is an item of war,'" civil liberties activist John Gilmore told Reason. "And the problem was that they didn't really take freedom of speech, freedom of inquiry, academic freedom, into account in that." In 1977, the Institute of Electrical and Electronics Engineers, which was planning to hold a conference on cryptography at Cornell University, received a letter from an NSA employee posing as a concerned citizen, who wrote that the U.S. government considered these mathematical systems "modern weapons technologies" and that distributing them was a federal crime. The letter caused widespread alarm in the cryptography community. In 1977, the computer scientist Mark S. Miller was a 20-year-old student at Yale. Like many future cypherpunks, he read about the breakthrough at MIT in Martin Gardner's "Mathematical Games" column published in Scientific American. The article laid out the astounding details of what"RSA," as it was called after its co-discoverers, Ron Rivest, Adi Shamir, and Leonard Adleman, made possible. Gardner omitted the technical details, but he offered his readers the opportunity to mail in a self-addressed stamped envelope to get a full description. The authors received 7,000 requests for the memo but didn't end up distributing the paper because of the NSA's threats. "I decided quite literally that they are going to classify this over my dead body," Miller recalls. He traveled to MIT and got his hands on the unpublished paper describing how RSA worked. Then he went to "a variety of different copy shops, so I wasn't making lots of copies in any one place" and mailed them anonymously "to home and hobbyist computer organizations and magazines all across the country." "I gave copies of the paper to some select friends of mine," Miller told Reason, "and I told them, 'if I disappear, make sure this gets out.'" The following year, the RSA paper was published in Communications of the A.C.M. "And the world has been on a different course ever since it got published," says Miller. But the crypto wars were just getting started. By the early 1990s, after the launch of the commercial internet and the web, RSA and public-key cryptography were no longer a rarified topic; they were privacy salvation. Internet users could use RSA to fully disguise their online activities from government spies. This sent the intelligence community once again scrambling to stop the dissemination of this powerful tool. In 1991, a software developer named Phil Zimmermann released the first relatively easy-to-use, messaging system with end-to-end encryption, which was called Pretty Good Privacy, or PGP. So the U.S. Justice Department launched a three-year criminal investigation of Zimmermann on the grounds that by making his software accessible outside the country, he could be guilty of exporting weapons. The NSA made the public case that Zimmermann's software would be used by child molesters and criminals. "PGP, they say, is out there to protect freedom fighters in Latvia," Stewart A. Baker, the NSA's general counsel, remarked during a panel discussion at the 1994 Conference on Computers, Freedom, and Privacy. "But the fact is, the only use that has come to the attention of law enforcement agencies is a guy who was using PGP so the police could not tell what little boys he had seduced over the 'net." "Child pornographers, terrorists, money launderers, take your pick—these are the people who will be invoked as the bringers of death and destruction," Tim May, a former Intel physicist and co-founder of the cypherpunk movement, told Reason. "It's true" that these individuals would make use of end-to-end encryption, May conceded, "but all technologies have had bad effects. Telephones led to extortion, death threats, bomb threats, kidnapping cases. Uncontrolled publishing of books could allow satanic books to appear." In his 1994 essay "The Cyphernomicon," May referred to terrorists, pedophiles, drug dealers, and money launderers as "The Four Horsemen of the Infocalypse." This fearmongering was the government's main playbook for how "privacy and anonymity [could] be attacked." The cypherpunks argued that although PGP was encryption software, it was protected by the First Amendment because under the hood it was just a written series of instructions to be carried out by a machine. The economist and entrepreneur Phil Salin was one of the first to argue this point in an influential 1991 essay titled "Freedom of Speech in Software." Salin wrote that "[r]estraint on freedom of expression of software writers is anathema in a free society and a violation of the First Amendment." "Encryption can't be controlled whether or not it's powerful or has impacts on the government because it's free speech," says Gilmore, a co-founder of both the cypherpunk movement and the Electronic Frontier Foundation. In the 1990s, he risked going to jail in his campaign to force the government to acknowledge that regulating encryption violated the First Amendment. "We basically had a community of a thousand people scattered around who were all trying different ideas on how to get around the government to get encryption to the masses," Gilmore recalls. The Clinton administration noted in a 1995 background congressional briefing that "Americans have no constitutional right to choose their own method of encryption" and pushed for legislation that would require companies to build in a mechanism for law enforcement agencies to break in. "We're in favor of strong encryption, robust encryption," then FBI DirectorLouis J. Freeh said at a May 11, 1995, Senate hearing. "We just want to make sure we have a trap door and a key under some judge's authority where we can get there if somebody is planning a crime." The cypherpunks looked for ways to undercut the government's case by pointing out the similarities between encryption software and other forms of protected speech. While under federal investigation for making his software available for download outside the U.S., to prove a point Zimmermann convinced MIT press to mirror his action in the analog world, by printing out the PGP source code, adding a binding, and shipping it to European bookstores. "MIT was at that time like three times as old as NSA, and it's at least as large a player in the national security community," says the cryptographer Whitfield Diffie, who co-discovered the concept of public-key cryptography on which RSA is based. 'It's one thing to try to go and step on little Phil Zimmermann; it's quite another thing to go after MIT." "The government knew if they went to court to suppress the publication of a book from a university that they would lose and they would lose in a hurry," Gilmore recalls. "There were people who actually got encryption code tattooed on their bodies and then started asking, 'Can I go to a foreign country?,'" Gilmore says. "We printed up T-shirts that had encryption code on them and submitted them to the government office of munitions control…'Can we publish this T-shirt?' Ultimately, they never answered that query because they realized to say 'no' would be to invite a lawsuit they would lose and so the best answer was no answer at all." In 1996, the Justice Department announced that it wouldn't pursue criminal charges against Phil Zimmermann and major legal victories came in two separate federal court decisions, which found that encryption is protected by the First Amendment. "The crypto wars is still ongoing," says Gilmore. "What we won in the first rounds was the right to publish it and the right to put it in mass-market software, but what we didn't actually do is deploy it in mass-market software. Now there are major companies building serious encryption into their products, and we're getting a lot of pushback from the government about this." In the early 90s, at the same time that Gilmore was fighting his legal battle for freedom of speech in software, the cypherpunks were exploring cryptography's potential in the context of collapsing political borders and the rise of liberal democracy. Part four in Reason's series, "Cypherpunks Write Code," will look at how those dreams turned to disillusionment, and the rebirth of the cypherpunk movement after the invention of bitcoin. Written, shot, edited, narrated, and graphics by Jim Epstein; opening and closing graphics and Mark S. Miller/RSA graphics by Lex Villena; audio production by Ian Keyser; archival research by Regan Taylor; feature image by Lex Villena. Music: "Crossing the Threshold—Ghostpocalypse" and "Darkest Child" by Kevin MacLeod is licensed under a Creative Commons Attribution license; "High Flight" by Michele Nobler licensed from Artlist; "modum" by Kai Engel used under Creative Commons. Photos: Photo 44356598 © Konstantin Kamenetskiy—Dreamstime.com; Photo 55458936 © Jelena Ivanovic—Dreamstime.com; Photo 21952682 © Martin Haas—Dreamstime.com; Photo 143489196 © Chalermpon Poungpeth—Dreamstime.com; ID 118842101 © Andrey Golubtsov | Dreamstime.com; Freeh and Clinton, Mark Reinstein/ZUMA Press/Newscom; Freeh and Clinton, Ron Sachs—CNP/Newscom; WhatsApp Founders, Peter DaSilva/Polaris/Newscom; Bill Barr and Trump: CNP/AdMedia/Newscom; MIT, DEWITT/SIPA/Newscom; John Gilmore photos by Quinn Norton, Attribution-NonCommercial-ShareAlike 2.0 Generic; Bill Clinton in Oval Office, Robert McNeely/SIPA/Newscom; Bill Clinton, White House/SIPA/Newscom; Louis J. Freeh and Bill Clinton, Ron Sachs—CNP/Newscom; James Comey, KEVIN DIETSCH/UPI/Newscom; Bobby Inmann, Dennis Brack / DanitaDelimont.com "Danita Delimont Photography"/Newscom; John Gilmore, Paul Kitagaki Jr./ZUMA Press/Newscom; Berlin Wall, Associated Press.
Making its case against the reelection of Donald Trump this week, The New York Times complains that the president has been "filling the benches of the federal judiciary with young, conservative lawyers as a firewall against majority rule." While it is hardly surprising that the Times would be dismayed by the appointment of conservative judges and justices, the suggestion that courts are acting improperly when they check the power of "majority rule" is puzzling. Courts are supposed to frustrate the will of the majority when it violates the Constitution. Americans on the left and right expect courts to do that, although they disagree about which constitutional constraints judges should be enforcing. In the same package of anti-Trump essays, the Times worries about the fate of Roe v. Wade, the 1973 decision in which the Supreme Court said broad abortion bans violate the 14th Amendment's Due Process Clause. Roe and its progeny clearly impose restrictions on majority rule, telling democratically elected legislatures how far they can go in regulating abortion. Most conservatives—probably including Amy Coney Barrett, the originalist Trump picked to replace Justice Ruth Bader Ginsburg—believe Roe was wrongly decided, since it relied on the dubious concept of "substantive due process" to discover a right to abortion. Ginsburg herself questioned the Court's reasoning, saying an argument based on the 14th Amendment's guarantee of equal protection would have provided a firmer foundation. But if you think the Constitution, under whatever provision, imposes limits on abortion laws, there is no escaping the conclusion that it requires courts to override some decisions by legislative majorities, even when those decisions are supported by most citizens in a particular state. The same is true of the Court's 2015 ruling in Obergefell v. Hodges, another precedent that progressives worry could be threatened by Barrett's appointment. In Obergefell, a five-justice majority concluded that both the Due Process Clause and the Equal Protection Clause require states to recognize same-sex marriages. No matter which argument you prefer, the conclusion that the Constitution forbids state discrimination against same-sex couples necessarily means the issue cannot simply be decided by a popular or legislative vote. While Democrats overwhelmingly support abortion and marriage rights, they are notably less enthusiastic about judicial intervention in other areas. When it comes to gun control and campaign finance regulation, for example, most Democrats seem to think majorities should be free to do pretty much whatever they want. In the landmark 2008 case District of Columbia v. Heller, the four dissenters, all but one of whom were nominated by Democrats, took the view that the right to "keep and bear arms" imposes no limits at all on gun control laws. The Democratic Party's platform, which this year talks a lot about gun control but does not even pay lip service to the Second Amendment, likewise seems to view it as a nullity. In the 2010 case Citizens United v. FEC, the Court overturned restrictions on the political speech of corporations, including an ideologically diverse array of nonprofit advocacy groups. The four dissenters—again, all but one Democratic appointees—were unfazed by the facts of the case, which involved the government's threat to fine a group for airing a movie critical of Hillary Clinton close to an election. Democratic presidential nominee Joe Biden, who wants not only to "end Citizens United" but to "prevent outside spending from distorting the election process," seems to take an even narrower view of what Americans should be allowed to say about politicians. But at least he recognizes that a constitutional amendment would be necessary to authorize such sweeping censorship. During Barrett's confirmation hearing last week, Democrats warned that Republican Supreme Court nominees threaten constitutional rights. Sen. Ted Cruz (R–Texas) had a similar complaint about Democratic nominees. While Democrats and Republicans agree that majority rule does not trump the Constitution, they disagree about what that means in practice. Whichever firewall you favor, it is apt to have some holes. © Copyright 2020 by Creators Syndicate Inc.
Congress may compel Twitter and Facebook to answer for why they temporarily suppressed a New York Post article alleging corruption by Joe Biden's son Hunter. The plan takes allegations about Twitter and Facebook's alleged "censorship" to absurd new heights. In the name of sticking up for the First Amendment—which protects people from censorship and compelled speech by their government, not the other way around—and stopping bias, Republicans on the Senate Judiciary Committee want to help compel the platforming of speech that could help their side. Trying to suppress the Post article may have been a dumb call by Twitter and Facebook. However, the First Amendment does not prohibit private companies from abridging speech. And the government can only compel a private individual or group to help platform a particular message in very limited circumstances. That's a limited government principle that Republicans champion when it comes to speech they don't like—for instance, in a case where crisis pregnancy centers were compelled by California to post messages with information about accessing abortion services. The state said this was simply neutral information and patients at these centers could do with it what they wanted. But the crisis pregnancy centers (and many Republicans) argued that this infringed on their First Amendment rights, and the Supreme Court agreed. Alas, these days, Republicans frequently espouse a desire to compel or coerce social media companies into sharing certain messages. Hence the current move to make Twitter CEO Jack Dorsey and Facebook CEO Mark Zuckerberg face a full Senate Judiciary Committee inquiry over why, for a short period, they limited distribution of a story making questionable but damning claims about the Democratic presidential candidate and his son. At least some people seem to be thinking twice about this, thank goodness. "The Senate Judiciary Committee on Monday postponed plans to vote on subpoenas to compel the CEOs of Twitter and Facebook to testify on allegations of anti-conservative bias after some panel Republicans expressed reservation about the maneuver," reports Politico: The panel announced Monday it will now consider whether to authorize the subpoenas at a high-profile executive session Thursday where it is separately expected to approve Supreme Court nominee Amy Coney Barrett. The committee said in a statement it will continue to negotiate with the companies 'to allow for voluntary testimony' by the CEOs, but that if an agreement is not reached the panel will move ahead with a vote on the subpoenas 'at a date to be determined.' Judiciary staff has indicated internally that plans for the vote were delayed in part due to some GOP panel members wavering on whether to support the action, according to one Senate GOP aide, who spoke anonymously to discuss private negotiations. Republican officials have also expressed trepidation about how quickly the committee has moved to vote on the subpoenas, the aide said. A committee spokesperson did not immediately offer comment on the matter. But Sen. Ted Cruz (R–Texas), chair of the committee's subcommittee on the Constitution, remains undeterred in his quest to violate constitutional rights. "One way or another, either voluntarily or pursuant to subpoena, they will testify and they will testify before the election," Cruz told reporters yesterday. Dorsey, Zuckerberg, and Google CEO Sundar Pichai are already scheduled to testify before a Senate committee once next week. On Wednesday, the Commerce Committee plans to grill them about Section 230. ELECTION 2020 The U.S. Supreme Court won't intervene to stop Pennsylvania from counting ballots that come in up to three days post-election. "The court on Monday rejected a Republican plea to pause a September ruling from Pennsylvania's state supreme court that allowed ballots to be counted as long as they are postmarked by election day and received up to three days later," reports The Guardian. The 4-4 decision saw Chief Justice John Roberts and the three liberal justices ruling to allow the lower court's decision to stand. (The even split leaves the lower court decision standing.) University of Kentucky law professor Joshua A. Douglas explains some broader implications of the ruling here. FREE MINDS Senate Republicans are introducing measures to limit the Supreme Court to nine justices. "The first proposal, also known as the 'Keep Nine' amendment, would amend the U.S. Constitution to prevent the expansion or contraction of the Supreme Court and codify the current nine-member court," explains a press release. "The second proposal would require a supermajority (two-thirds) vote before any legislative effort to modify the size of the Court could be considered in the Senate." FREE MARKETS Restaurants fight for the right to happy hour. On the R Street Institute's new The Right to Drink podcast, "booze expert and host Jarrett Dieterle explains why some states allow happy hour and others don't—and the fight to change that." Dieterle talks to business owners in three different states who have run up against these regulations. Our trip starts in Northern Virginia in 2009, when a man named Geoff Tracy decided to open a restaurant in an area called Tyson's Corner. Chef Geoff, as he's known, was already a very successful restauranteur by this point, owning several well-regarded establishments in nearby Washington, D.C. and Maryland. But as experienced as he was, crossing over the border into Virginia for his newest restaurant proved trickier than he'd imagined. That's because Virginia had something that neither DC nor Maryland had: a government that effectively outlawed happy hour." Listen to the whole thing here. QUICK HITS • This is fun: Which words first appeared in print the year you were born? Time travel with us:https://t.co/eX0PXxhe15 — Merriam-Webster (@MerriamWebster) October 19, 2020 • A woman was charged with a misdemeanor after feeding a bear in a TikTok video. • "Although well-intentioned, term limits have a problem," writes R Street Institute Governance Project fellow Anthony Marcum at USA Today. "Not only are they unconstitutional, but they will have the exact opposite result proponents wish for." • In case you need to escape into more fiction reading these days…Dazed has interesting recommendations on new English-language book releases from authors around the world.
When an Oklahoma judge ordered Johnson & Johnson last year to pay half a billion dollars as compensation for the harm caused by abuse of prescription opioids, he relied on a definition of "public nuisance" so broad that it could cover nearly any product. Worse, as the Goldwater Institute notes in a brief supporting the company's appeal to the Oklahoma Supreme Court, his theory of liability was based on statements protected by the First Amendment. Cleveland County District Court Judge Thad Balkman—who initially ordered Johnson & Johnson to pay Oklahoma $572 million, a judgment he later reduced to $465 million—concluded that Johnson & Johnson had exaggerated the benefits of its pain medications and underplayed their dangers. Yet several of the statements he deemed misleading, including the observation that patients typically do not become addicted to these drugs and rarely die from overdoses, are actually true. Some claims about pain medication—concerning, for example, the extent of undertreatment, the long-term benefits of opioids for people with chronic pain, and the concept of "pseudoaddiction," which describes how bona fide patients desperate for pain relief can be mistaken for nonmedical "drug seekers"—are more controversial. Yet taking positions on these issues is not tantamount to commercial fraud. "The trial court characterized legitimate scientific discourse as deceptive," the Goldwater brief says. Balkman dismissed the notion that he was punishing Johnson & Johnson for constitutionally protected speech. "I conclude that the speech at issue here is commercial in nature and that it is therefore not protected speech under the First Amendment," he wrote. That conclusion was doubly wrong, Goldwater says. First, "commercial speech is protected by the First Amendment." Although the Supreme Court has said the government has more leeway to regulate commercial speech than it has to regulate other kinds of speech, the restrictions still must meet the test described in the 1980 case Central Hudson Gas & Electric v. Public Service Commission of New York. When speech is not misleading and concerns lawful activity, the Court said in that case, regulations must "directly advance" a substantial government interest, and they must be narrowly tailored, meaning they are "not more extensive than necessary." Balkman's conclusion that Johnson & Johnson's statements are "not protected speech under the First Amendment" therefore relies on his judgment that they were misleading, even when demonstrably true. Second, the Supreme Court has defined commercial speech as expression that does "no more than propose a commercial transaction." That description plainly does not apply to general statements about, say, the addictive potential of prescription opioids or the extent to which patients who could benefit from them are denied medication. In the 1983 case Bolger v. Young Drug Products, Goldwater notes, the Court held that "informational pamphlets about medicines" did not qualify as commercial speech, even though "they were created with a commercial motive and addressed one specific product." Having concluded that the First Amendment does not apply to Johnson & Johnson's statements about opioids, Balkman used them to find the company guilty of creating a public nuisance, a concept that no one has been able to satisfactorily define. "Nobody knows what a public nuisance is," Goldwater says, citing legal scholars who have described it as "vaguely defined," "poorly understood," "all things to all people," a "wilderness," an "impenetrable jungle," a "quagmire," and "a legal garbage can." The nebulous nature of "public nuisance" is reflected in the Oklahoma statute that Balkman applied to Johnson & Johnson, which says it "consists in unlawfully doing an act, or omitting to perform a duty, which act or omission…annoys, injures or endangers the comfort, repose, health, or safety of others" or "in any way renders other persons insecure in life, or in the use of property." The breadth of such definitions poses obvious due process problems, since businesses are not given clear notice of which actions could expose them to massive liability. The "public nuisance" concept has been deployed, for example, against companies that legally sold lead paint, which became a hazard years later as it flaked off surfaces in homes where it was used; gun manufacturers, because they legally sold firearms that were ultimately used in crimes; and General Motors, because its vehicles contribute to global warming. "Absent objective rules limiting liability," Goldwater says, "the concept can become a catch-all rule against whatever government officials, or even individual citizens, decide is bad behavior." Making drug manufacturers liable for selling products in compliance with federal regulations is not merely unfair to them. It is part of a broader crackdown on pain medication that has denied treatment to legitimate patients while driving nonmedical users into a black market where the drugs are much more dangerous because their potency is highly variable and unpredictable. The latter effect was apparent in the same trends that Balkman cited to justify his ruling against Johnson & Johnson. As the government succeeded in reducing opioid prescriptions, the upward trend in opioid-related deaths not only continued but accelerated. Illicit drugs now account for the vast majority of those deaths. Balkman, who erroneously claimed that the "current stage of the Opioid Crisis…still primarily involves prescription opioids," seemed oblivious to that fact. Balkman likewise dismissed the suffering of legitimate patients who are unable to get the medication they need to relieve their pain. That problem has been aggravated in recent years by ham-handed efforts to reduce opioid prescriptions, as the Food and Drug Administration, the Centers for Disease Control and Prevention, and the American Medical Association have recognized. But in Balkman's view, any talk about undertreatment is inherently suspect, motivated by nothing but the desire to sell more pain medication. As Goldwater notes, "the trial court concludes that defendants and others broke the law by 'suggest[ing] pain is undertreated and doctors should prescribe more opioids'—without finding that these things were factually untrue or negligently stated." Balkman's decision quotes Terrell Phillips, a physician who said this during an October 2016 presentation to the Oklahoma State Medical Association: "Everyone here knows how we got in this situation. They told us we were underprescribing. We need to prescribe more. It's the patient's rights to have pain medicine, so we all got on board. And when someone said they were hurting, we said, 'OK, we are going to give you something.' Now it's just the opposite. Not everyone deserves pain medicine." In Balkman's view, that quotation reinforces the case that drug companies recklessly encouraged overprescription of opioids. But by implicitly endorsing the new message that "not everyone deserves pain medicine," Balkman shows a callous disregard for the patients who suffer because other people abuse the medication on which they rely to make their lives bearable. Similarly, Balkman treats the concept of pain as "the fifth vital sign," which was intended to address undertreatment, as nothing more than a scheme to line the pockets of companies like Johnson & Johnson. "The phrase refers to the idea that physicians should be as focused on treating pain as they are on treating a patient's difficulty with breathing, cardiac problems, etc.," Goldwater notes. "This is a legitimate and humane attitude—quite the opposite of the shockingly inhumane, even cruel, idea expressed in the words the trial court quoted approvingly: 'Not everyone deserves pain medicine.'" Some critics argue that the "fifth vital sign" concept contributed to excessive prescribing. But that does not mean the idea, which was backed by the Joint Commission on Accreditation of Healthcare Organizations as well as the American Pain Society, the Institute of Medicine, and the U.S. Veterans Administration, was simply a mercenary scam, as Balkman implies. Likewise with pseudoaddiction, a concept that was endorsed by the Food and Drug Administration. "Although 'the concept may have fallen out of favor,'" Goldwater's brief notes, "it has not been squarely rejected, let alone proven to be a form of deceptive marketing….There is nothing deceptive or unlawful about the scientific community proposing, discussing, studying, and even later rejecting a medical or psychological hypothesis." Balkman's understanding of the speech that can make a company guilty of creating a public nuisance is so broad that it could encompass any participation in scientific or public policy debates by businesses with a financial interest in the outcome. If the National Shooting Sports Foundation expresses skepticism about "assault weapon" bans, for instance, that would count as commercial speech in Balkman's view and, if deemed misleading, fall outside the scope of the First Amendment. Likewise if a natural gas producer defends fracking, if a carmaker criticizes new fuel efficiency standards, if a chemical company questions claims about pesticide residues on fruit and vegetables, or if a food manufacturer presents evidence that genetically modified ingredients pose no health threat to consumers. Based on Balkman's logic, messages like those, which heretofore have been understood as constitutionally protected, could be punished for creating a public nuisance. If so, First Amendment rights will be tossed into "a legal garbage can," along with the fair notice required by due process.
"Where would the Black Lives Matter movement be without the right to free speech?" asks Ira Glasser, the executive director of the American Civil Liberties Union (ACLU) from 1978 to 2001. "There is no social justice movement in America that has ever not needed the First Amendment to initiate its movement for justice, to sustain its movement to justice, to help its movement survive." Glasser is the subject of the new documentary Mighty Ira, which chronicles his efforts to secure the speech rights of Nazis, undermine government attempts to regulate internet content, combat hate speech laws, and abolish campus speech codes. It is a portrait of a First Amendment hero who managed to have friends across ideological divides while remaining civil, engaged, and effective. The 82-year-old Glasser is troubled by his former group's seeming embrace of identity politics over free speech, and he worries that younger social justice activists view the First Amendment as an adversary rather than an ally. "John Lewis said that without free speech and the right to dissent, the civil rights movement would have been a bird without wings," Glasser says. "That's historically and politically true without exception." Written by Nick Gillespie. Produced and edited by Paul Detrick. Neo-Nazis; Credit: Alexandra Buxbaum/ABACAUSA.COM/Newscom; Ira Glasser; Credit: Mario Ruiz/ZUMA Press/Newscom; Neo Nazi marcher; Credit: ID 132745286 © Patrick Morrissey | Dreamstime.com; Black Lives Matter protesters; Credit: Scott W. Grau/Icon Sportswire CBW, Tim Evans/ZUMA Press/Newscom, Adam J. Dewey/ZUMA Press/Newscom; Women's rights marcher; Credit: Jeff Malet Photography/Newscom; Anti-war activist; Credit: Zach D Roberts/ZUMA Press/Newscom; David Duke; Credit: file UPI Photo Service/Newscom; Eldridge Cleaver; Credit: Underwood Archives/UIG Universal Images Group/Newscom; Supreme court protesters; Credit: Jeff Malet Photography/Newscom; Gay rights protester; Credit: Louis Brems/ZUMA Press/Newscom; AIDS activists; Credit: Frances M. Roberts/Newscom, Ezio Petersen UPI Photo Service/Newscom, Michale Smith UPI Photo Service/Newscom; Civil rights movement; Credits: akg-images/Newscom; ICE protest; Credit: John Marshall Mantel/SIPA/Newscom; Joseph McCarthy; Credit: Everett Collection/Newscom; Richard Nixon; Credit: JT Vintage/ZUMA Press/Newscom; Rudy Giuliani; Credit: Jason Winslow / Splash News/Newscom; Donald Trump; Credit: Paul Hennessy/ZUMA Press/Newscom; Bill Barr; Credit: Jeff Roberson/UPI/Newscom; ACLU legal observers; Credit: Mark Hertzberg/ZUMA Press/Newscom, Lannis Waters/ZUMA Press/Newscom, Alex Milan Tracy/Sipa USA/Newscom, Bill Clark/CQ Roll Call/Newscom; ACLU clients; Credit: GDA Photo Service/Newscom, Pat Vasquez-Cunningham/ZUMA Press/Newscom, Romain Blanquart/MCT/Newscom; Neo-nazis; Credit: Jim De Pree/TNS/Newscom; Unite the Right rally; Credit: Stephanie Keith/Reuters/Newscom; ACLU protesters; Credit: ID 173780741 © Jerry Coli | Dreamstime.com
President Donald Trump should highlight his preservation of constitutional liberties and freedom during the coronavirus outbreak — in contrast to Democrats’ increased centralization of state power, said Breitbart News Senior Editor-at-Large Joel Pollak during an interview Sunday with Hogan Gidley, the Trump campaign’s press secretary. “I’d like the president to say this [at the next debate],” remarked Pollak on SiriusXM’s
In cities around the world, crackdowns on protesting can't seem to stop people from pouring out into the streets. Here in the U.S., federal agents just had an hourslong standoff with protestors in Portland after people tied star-shaped balloons with messages about immigration (such as "the U.S. locks up people seeking asylum") taped to them to the gate of a U.S. Immigration and Customs Enforcement building. Department of Homeland Security officers "advanced on demonstrators soon after they arrived Saturday night…setting off an hours-long, back-and-forth struggle between police and protesters," reports The Oregonian: Federal officers then used smoke and impact munitions to break up the crowd for the next several hours. Protesters threw playground balls or rocks in response. Federal officers detained several people, although the exact number of arrestees remains unclear…. Saturday's demonstration started with a march from Willamette Park in South Portland. A flier for the event described it as a solidarity march against deportation. As marchers walked, they chanted messages such as "Black Lives Matter!" and "What's outrageous? Kids in cages." Many people carried silver and gold balloons shaped like stars. A fact about U.S. immigrations policy was taped to each balloon. In Phoenix, "nearly every attendee of a Saturday protest against police in downtown Phoenix was arrested after police say the group marched in the road, knocked barricades into the road, and threw smoke bombs at officers," The Arizona Republic reports: In total, 15 adults and three teens were arrested, according to Phoenix Police Department spokesperson Sgt. Ann Justus. They face charges including aggravated assault on an officer, riot, criminal damage, unlawful assembly, hindering prosecution, resisting arrest and obstructing a road…. "As officers began making arrests, another incendiary device was thrown at them. Due to the ongoing criminal activity and assault, the Phoenix Police deployed less lethal munitions in order to safely make arrests," Justus said. Protest group The W.E. Rising Project posted on social media that police hit at least one protester in the face with a pepper ball. In Seattle, police ordered protesters to disperse after someone allegedly set a small fire and some street signs were spray-painted. It does not seem they arrested the fire starter or the vandals, but they did book five demonstrators for "failure to disperse, pedestrian interference, obstruction and resisting arrest." Meanwhile, across the Pacific Ocean, "Thai authorities shut down parts of Bangkok's commercial center and crippled public rail networks over the weekend in an effort to prevent young demonstrators from continuing their antigovernment protests," The New York Times informs us. "It didn't work." Tens of thousands of members of the pro-democracy movement, which has been galvanized by a political awakening among social media savvy students, gathered in Thailand's capital and in about 20 provinces on Saturday and Sunday to call for fresh elections, a new Constitution and reforms to the monarchy's lofty position in Thai society. In Belarus this weekend, the AP reports, "tens of thousands of people marched…demanding the ouster of the country's authoritarian leader who won his sixth term in office in an election widely seen as rigged." I saw a generation with one voice during the #PrayerWalk in Ilorin Today. We prayed in Christianity & in Islam. We prayed for those who have lost their lives to #PoliceBrutality & insecurity & we prayed for our dear country, Nigeria????????. He's with us✊#ReformTheNigerianPolice pic.twitter.com/yLc9boWgZX — Baliqees Salaudeen | #ClimateAction (@humanitarian_bs) October 15, 2020 In Nigeria, "thousands of people have been taking to the streets of Lagos over the past week to protest against police brutality," says Al Jazeera. Mobilised through online platforms such as Twitter and Facebook, the youth-led protests that began on October 8 initially targeted the federal Special Anti-Robbery Squad (SARS), a notorious police unit long accused of harassment, torture, extortion and extrajudicial killings. After days of #EndSARS demonstrations across Nigeria and the diaspora, authorities on Sunday announced the dissolution of SARS and later ordered all personnel to report to the police headquarters in the capital, Abuja, for debriefing and psychological and medical examination. Meanwhile, the forming of a new Special Weapons and Tactics (SWAT) team was announced to replace SARS. However, the announcements did not satisfy protesters, who viewed them as just another renaming exercise and pledged to stay on the streets until their demands are met. These include the immediate release of all arrested protesters, justice for all deceased victims of brutality and appropriate compensation for their families, an independent body to oversee the investigation and persecution of all reports of police misconduct, psychological evaluation and retraining of all disbanded SARS officers before they can be redeployed, and an increase in police salary so they are adequately compensated for protecting the lives and property of the citizens. And in South America… Tens of thousands of Chileans protested in the streets of Santiago demanding government reform as they marked the one-year anniversary of mass protests that left over 30 dead and thousands more injured https://t.co/imdYDxdo18 pic.twitter.com/Aab1UQgkps — Reuters (@Reuters) October 19, 2020 ELECTION 2020 New York Post stands by Biden story as other news outlets question its claims. Two New York Post reporters allegedly declined to have their names attached to the story about Hunter Biden's emails that has become the subject of so much social media drama. "The New York Times, The Washington Post and The Wall Street Journal have reported that they could not independently verify the data in the Post article, which included hedging language, referring at one point to an email 'allegedly sent' to Hunter Biden," the Times reports. A New York Post statement said "the story was vetted and The Post stands by its reporting," FREE MARKETS Pennsylvania restaurant wins lawsuit against lockdown. Lebanon County's Taste of Sicily, cited for violating state shutdown orders after fully reopening back in May, won a lawsuit against Pennsylvania Gov. Tom Wolf over the emergency orders. "The restaurant is currently waiting for a hearing date against the Department of Agriculture," reports WHP-TV. QUICK HITS What an odd tweet. It leaves out what happened to that lawsuit. You know, the one that got tossed (easily) on 1st Amendment grounds? https://t.co/yJHntsu0UM https://t.co/IXVPlRqt0K — Mike Masnick (@mmasnick) October 19, 2020 • Pakistan is banning TikTok. • Another lawsuit alleges that hotels are legally liable for any crime that takes place within their rooms. • Two men were arrested and charged with trafficking a person for prostitution and engaging in organized criminal activity after telling a cop who pulled them over that they were going to meet an adult woman who police thought may be involved in prostitution. • The NYPD is now the private party police. • Reason's Jesse Walker chats with Thaddeus Russell on the Unregistered podcast: [embedded content]
LOUDOUN COUNTY, Va. — Monica Gill has been teaching Loudoun County students for 18 years. The high school social science teacher is used to teaching about the U.S. Constitution. But this time, it’s the Loudoun County School Board learning its lesson. “I thought my job was to give kids different perspectives, to give them tools to think for themselves,” Gill
Hat Tip Fool Nelson – Put this in the stunning conflict of interest file that is truly jaw-dropping. This is just unreal. Anna Makanju is the Facebook executive in charge of “election integrity on the platform”; and guess what her job was before that position… “Previously, she was the special policy adviser for Europe and Eurasia to former US Vice
Please respect our republishing guidelines - Click Here Tweets CEO Jack Dorsey The wheels are submiting the alleged Biden family shake-down emails. The Republican National Panel floated a story to Fox Information about its complaint regarding Twitter’s election tampering, and now the right is holding
When a 12 year-old boy recently spoke up in class to express his support for President Donald Trump, his teacher tried to humiliate him in front of his classmates, but it didn’t end well for her. Jackson Cody is a seventh grade student at O’Maley Innovation Middle School in Gloucester, Massachusetts. Earlier this month, Cody found himself being targeted by
By definition, Twitter can't violate the First Amendment rights of the president, members of Congress, or anyone else. First Amendment violations are things the government does to the people, not the other way around. There is nothing in the Constitution prohibiting Twitter from restricting speech on its platform, and it is certainly not "censorship" (which has denoted government suppression of information since the office of censor was created in Ancient Rome to impose public morality). This shouldn't need repeating as often as it does these days. But President Donald Trump and those who support him have been working hard to recast censorship as something private companies can do to the most powerful man in the country (see Trump's executive order on Twitter) while arguing that government should be allowed to restrict these companies' freedom of speech, conscience, and association. The latest round of redefinition comes in response to Facebook saying it would "limit distribution" of a New York Post article about Hunter and Joe Biden due to concerns about its veracity. Twitter also temporarily blocked users from sharing the article, saying that it violated its "hacked materials" policy. (Twitter CEO Jack Dorsey later admitted the rollout of this decision was not great, but did not seem to disagree with it overall.) Twitter is now actively censorsing two of the three branches of the United States federal government. https://t.co/KWwHMelRzF — Sean Davis (@seanmdav) October 14, 2020 It was a bad move on the part of Facebook and Twitter, denying users the opportunity to discuss and perhaps counter the claims in the article among themselves (and likely drawing much more attention to the story than it would have gotten otherwise). Doing so also opened Twitter and Facebook up to allegations of suppressing information critical of Democratic presidential candidate Joe Biden at a time when both companies are putting on a big show of being impartial arbiters of information about the pandemic and the 2020 election (a doomed cause which routinely results in poor calls like this). But here's the key thing: they don't have to be fair arbiters of political information. Facebook could decide to ban any content critical of Biden. Parler, a social media platform for conservative refugees of Twitter and Facebook, could ban anyone questioning the New York Post story. Twitter could disallow all election content and Reddit can nix any posts about narwhals or sloths. Any of those choices—no matter how politically biased or how weird—would be within their legal prerogative as private entities, which are under no obligation to treat all content equally, to humor information they find unfit, or to set content standards that make any outside sense at all. Because of the First Amendment, private platforms and publishers aren't required to air any particular viewpoint. Which means social media companies are protected from having to permit any government official to use their service as a microphone or having to give any particular person, article, or idea a place to call home. Nor does the federal communications law known as Section 230—often invoked by Trump and other Republicans as a law banning bias on social media—actually require the parties it protects to be politically or ideologically neutral. And repealing Section 230 wouldn't suddenly make neutrality a requirement. The First Amendment would still exist, and it would still mean that these companies couldn't be forced to broadcast government messages or to provide refuge for content it deems misleading or even just doesn't like. Without Section 230, however, companies would be forced to constantly defend their constitutional rights in court—which is expensive and time-consuming. A lot of them will decide it's simply not worth it to allow any controversial speech, and define controversial quite broadly. This ends with everyone—Trump fans, Biden fans, and all the rest of us—facing more limits in what we can see, say, and share online. If a social media company has an overly narrow mission and too many rules, or claims to be a place for all but continually curates and suppresses content in biased way, then the best way to remedy this is by boycotting and helping to build up alternatives, not granting the government broad new powers to regulate media, ideas, and speech. The best solution to cramped, anti-speech policies by private platforms is for users to browbeat them into being open and transparent with minimal content regulation. And if need be, create alternatives. This is not a perfect solution but it is far better than those using force. — Nick Gillespie (@nickgillespie) October 14, 2020 We are now leaving the "we wanted to suppress a story but accidentally gave it new legs" stage of the stupidity cycle. Next up: the "we wanted to stop online censorship but accidentally created an online censorship agency" stage of the stupidity cycle. https://t.co/g7Ph0aJhUL — Jesse Walker (@notjessewalker) October 14, 2020 Trump tweeted about the Post article yesterday evening, writing "so terrible that Facebook and Twitter took down the story of 'Smoking Gun' emails related to Sleepy Joe Biden and his son, Hunter, in the @NYPost. It is only the beginning for them. There is nothing worse than a corrupt politician. REPEAL SECTION 230!!!" It's obvious why Trump and other politicians cheer the downfall of Section 230, since that would make suppressing speech the government doesn't like easier. It's just not clear why private citizens and journalists keep cheering this on. FREE MINDS • The New Yorker on "why Facebook can't fix itself." … the company is moving in several contradictory directions at once. In theory, no one is allowed to post hate speech on Facebook. Yet many world leaders—Rodrigo Duterte, of the Philippines; Narendra Modi, of India; Donald Trump; and others—routinely spread hate speech and disinformation, on Facebook and elsewhere. The company could apply the same standards to demagogues as it does to everyone else, banning them from the platform when necessary, but this would be financially risky. (If Facebook were to ban Trump, he would surely try to retaliate with onerous regulations; he might also encourage his supporters to boycott the company.) Instead, again and again, Facebook has erred on the side of allowing politicians to post whatever they want, even when this has led the company to weaken its own rules, to apply them selectively, to creatively reinterpret them, or to ignore them altogether. FREE MARKETS There were 898,000 new jobless claims filed last week. "The total for the week ended Oct. 10 was the highest number since Aug. 22," reports CNBC. "The number represented a gain of 53,000 from the previous week's upwardly revised total of 845,000." QUICK HITS • With the second presidential debate now canceled, Biden and Trump will each do separate televised town halls tonight. • Reason's Nick Gillespie talks to Jia Lynn Yang, author of One Mighty and Irresistible Tide: The Epic Struggle Over American Immigration, 1924–1965, about the past and future of U.S. immigration policy. • Barron Trump also contracted COVID-19, along with his parents. The 14-year-old "is a strong teenager and exhibited no symptoms," said Melania Trump in a Wednesday statement, also announcing that she has now tested negative again. • How math became a weapon against tyranny. • Today is the final day of the Amy Coney Barrett confirmation hearings. Find all of Reason's coverage from this week so far here.
Please respect our republishing guidelines - Click Here It would be almost ridiculous to deny that there are certain things that, in today’s climate, you just can’t say. While there are cases to be made for producing a more civil society, it seems that at its root, these efforts to silence are little more than tyranny and an attempt to manipulate not just what we say but what we permit ourselves to think. And this, in every sense of the word, is dangerous. When we begin to censor ourselves, we give away our power to act and operate in the world. Whether it is through a wish to be considered within the Overton Window of opinion, or whether we keep our mouths shut to protect our jobs or position within the community, it would take a brave soul to suggest that they never filter themselves. But here’s the thing: this is encouraged, and it is to the motivations of those who do the encouraging that we must look. The standard excuse for this encouragement is that it creates a better, more inclusive society. Inclusive language stops people from being outsiders. It makes the world a “nicer” place. And we all want to live in a kinder, nicer place – don’t we? Is It About Truth – or Control? The problem is: we don’t buy it. We don’t believe that the people espousing these flaccid excuses care for a kinder and better world; if they did, they wouldn’t be calling those who demand freedom of speech “nothing but racists and bigots.” If they wanted a kinder culture, they would not be vilifying those who disagree with them. It’s the fatal flaw in their argument. What they want is control—nothing more, nothing less. They know it is impossible to control every individual on a person by person basis. They seek, then, to create a societal structure in which people will edit themselves, out of fear that, If they don’t, the rampant harpies who have drunk the KoolAid will demonize them and attempt to destroy their lives. These are not good people. Let’s use an example. Someone makes a twitter comment. Perhaps it’s racist; maybe it’s unkind – but that’s a subjective judgment. Maybe the comment is merely an opinion. All of a sudden, the mob swoops in and begins wishing death and destruction upon the commenter. These critics then forward the comment to the author’s employers; they light the commenter up all over the internet. Suddenly, this commenter cannot show his or her face in public – or maybe even get another job. Naturally, the internet mob, or even physical protestors, are beaming with glee at the taking down of one more “fascist.” But what if this guy has a family? They are punishing his wife and his children for his crimes; what if he employs people and has to shut down his business as they have demanded? What if the vitriol causes him to take his own life? It happens. This actually happens. These are not good people; they are far from it. But, we often look at this as a modern phenomenon. It’s not. The only difference now is that the persecutors have almost total control. We need to look back to earlier days when the powerful and influential in society were the ones who stood up for the freedom of speech and expression. On March 15, 1783, George Washington gave a speech to his officers. It is known now as the Newburgh Address. He encouraged his officers to petition Congress. Here’s the thing; he disagreed with the idea, but thought that his troops should be able to use their voices; it was an excellent reminder to them of why they were fighting. He said: “For if Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and, dumb and silent we may be led, like sheep, to the Slaughter.” Washington understood that all men and women must be able to exercise their own expression. Have we learned nothing from the last 50 years of pop culture that tells us repressing ourselves is bad for us? It is psychologically and physically damaging not to be able to be your true self, and in many cases, this means being able to speak your mind, or, as has become so popular nowadays, to speak your truth. The Risks of Speaking Your Truth I say “popular nowadays,” but in fact, speaking your truth is an incredibly old concept. We can trace it back to ancient Greece around 500 BC, but as an idea, it is likely much older. There’s a word: parrhesia. It has a few different translations, but at its core, it means “to speak boldly.” But there is an undercurrent to the word parrhesia that is often ignored. To speak boldly comes with inherent risk – not always of physical danger, but perhaps of upsetting a relationship or of creating a crisis. In Ancient Athens, parrhesia was quite literally a fundamental component of democracy. If you could not speak out in a public forum, then democracy was denied. All must be able to speak what they see as the truth. Michel Foucault, the French philosopher and historian, dug into the concept of parrhesia. He wrote that in certain circumstances, to speak boldly can result in danger: “In such a case, you do not risk your life, but you may hurt him by your remarks, and your friendship may consequently suffer for it. If, in a political debate, an orator risks losing his popularity because his opinions are contrary to the majority’s opinion, or his opinions may usher in a political scandal, he uses parrhesia. Parrhesia, then, is linked to courage in the face of danger: it demands the courage to speak the truth in spite of some danger. And in its extreme form, telling the truth takes place in the “game” of life or death. “ I like this last line: telling the truth in the game of life or death. It’s powerful, and it cuts to the heart of the matter. Those who want us to remain silent will, eventually, take harsher measures. History shows this. Those who spoke out against Stalin and Mao, those “political dissidents” who were sent for re-education, or disappeared never to be heard from again; this is the end result of what these monsters are selling. For now, we can choose to remain silent; eventually, it will be enforced. Telling the truth is, and always has been, a game of life and death. ~ Read more from Mark Angelides.
Judge Mitchell L. Beckloff of the Los Angeles Superior Court issued a preliminary injunction Thursday that prohibits Pastor John MacArthur and Grace Community Church from “conducting, participating in, or attending any indoor worship services.” The ban also extends to services held outside “unless onerous restrictions are followed.” Since the church first began meeting in-person and defying local lockdown orders in July, Los Angeles County officials have threatened fines, arrest, and even terminated the lease held between the church and the county for parking lot space claiming health and safety concerns. A $1000 fine issued by Los Angeles County was also imposed on the church this week for signs asking congregants to refrain from entering if they were experiencing “an elevated temperature, a cough, or any flu-like symptoms.” According to the county, the signs were not placed at the proper entrances and exits and did not contain instructions asking people to “wash hands or use sanitizer, to wear face coverings and to maintain social distancing.” Apparently signs asking people not to enter if they have an elevated temperature or symptoms of Covid (located at every entrance & exit) aren’t good enough for LA County. The bullying and harassment continues. This is NOT about health. LA County just wants to shut down church. https://t.co/bJLEm7PCEL pic.twitter.com/6DKqi9tEI8 — Jenna Ellis (@JennaEllisEsq) September 9, 2020 Special counsel Jenna Ellis and Charles LiMandri expressed their disappointment in Thursday ruling, claiming that the court “ducked the issue” and failed “to apply the appropriate constitutional standard of review.” They also explained their belief that the church was held to a different standard than other activities during COVID-19 lockdowns. “The court also did not properly consider the medical and scientific evidence that the current number of people with serious COVID-19 symptoms no longer justifies a shuttering of the churches. Nor do we believe that the court gave adequate consideration to the fact that churches have been treated as second-class citizens compared to the tens of thousands of protestors,” LiMandri said. This opinion by the court, according to Ellis and LiMandri, shows that the church was unfairly targeted. “Church is essential, and no government agent has the runaway, unlimited power to force churches to close indefinitely. The County’s argument was basically ‘because we can,’ which is the very definition of tyranny,” Ellis said. “Without limiting government’s power in favor of freedom and protected rights, we have no liberty. We will fight for religious freedom, as our founders did when they wrote the First Amendment.” “More than ever, California’s churches are essential,” LiMandri agreed. Despite the court’s ruling, Pastor John MacArthur told Fox News’s Shannon Bream on Thursday night that the church would still be meeting. “1/100th of 1 percent of Californians with a virus apparently wins over the U.S. Constitution and religious freedom for all? That is not what our founders said,” said MacArthur. “Nor is that what God says, who gave us our rights that our government—including the judicial branch—is supposed to protect. The scale should always tip in favor of liberty, especially for churches.” The Thomas More Society also said that they will appeal it to “ultimately vindicate our clients’ constitutionally protected right to free exercise of religion.” “Although this is a temporary setback, we will continue to fight for Pastor MacArthur and Grace Community Church’s constitutionally protected right to hold church,” Ellis promised.
The Department of Education published a final rule Wednesday that expands religious liberty protections on college campuses and allows DOE to suspend or cut federal funding from colleges that violate the First Amendment. Known as the “Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities” final rule, it ensures the equal treatment of religious student groups at public universities, and “provides clarity for faith-based institutions with respect to Title IX.” “This administration is committed to protecting the First Amendment rights of students, teachers, and faith-based institutions. Students should not be forced to choose between their faith and their education, and an institution controlled by a religious organization should not have to sacrifice its religious beliefs to participate in Department grants and programs,” said Secretary of Education Betsy DeVos. If public universities fail to give religious student groups the same rights as other campus organizations, such as use of campus facilities and access to student fee funding, they could lose federal funding. The final rule also seeks to promote “free inquiry” and to protect “academic freedom” on college campuses. “Denying free inquiry is inherently harmful at any institution of higher education because students are denied the opportunity to learn and faculty members are denied the opportunity to freely engage in research and rigorous academic discourse,” the rule reads. In extreme cases of First Amendment violations, DOE can determine a university is ineligible for future grants. Private universities can also face the same consequences if found violating their own speech codes. “These regulations hold public institutions accountable for protecting the First Amendment rights of students and student organizations, and they require private colleges and universities that promise their students and faculty free expression, free inquiry, and diversity of thought to live up to those ideals,” DeVos explained. While the final rule claims that universities must allow for differing ideas and viewpoints on campus, it also gives private or religious institutions the freedom to adopt their own speech standards, so long as they comply with them. “Religiously affiliated institutions, in freely exercising their faith, may define their free speech policies as they choose in a manner consistent with their mission,” the rule states. The rule also states that “religious student organizations should be able to enjoy the benefits, rights, and privileges afforded to other student organizations at a public institution” as well. The final rule will going into effect 60 days after the date of official publication in the Federal Register.