ACLU: Five Things to Know About the Supreme Court Case Threatening Doctors Providing Emergency Abortion Care

Five Things to Know About the Supreme Court Case Threatening Doctors Providing Emergency Abortion Care

The Supreme Court recently heard oral arguments in Idaho v. United States and Moyle v. United States, which will determine whether politicians can put doctors in jail for treating pregnant patients experiencing medical emergencies. The ultimate decision in the case — which is expected by the summer — could have severe consequences on the health and lives of people across the country facing emergency pregnancy complications. Here’s what you need to know:

This case is about politicians trying to block emergency care for pregnant patients.

Anti-abortion politicians brought this case all the way up to the Supreme Court to deny pregnant people access to emergency abortion care that is necessary to prevent severe and potentially life-altering health consequences, and even death. A federal law, the Emergency Medical Treatment and Labor Act or EMTALA, has long guaranteed that, in an emergency, patients can get the care they need — including abortion care — regardless of where they live. This is not a Democrat or Republican issue: Every administration from President Reagan to President Biden has recognized that EMTALA requires emergency abortion care. The Supreme Court’s decision to overturn Roe v. Wade did not diminish these longstanding federal protections, which override state laws that would prohibit such care, but now, extreme politicians are doing everything in their power to prevent someone experiencing emergency pregnancy complications from getting care in emergency rooms.

This case could have a severe impact on emergency care across the country, and these devastating effects are already playing out in Idaho.

While it considers the case, the Supreme Court has already allowed Idaho politicians to block emergency care for pregnant people using the state’s abortion ban which has no exception for health, and the impact is already reverberating across the state. For example, St. Luke’s Health System, the largest health system in Idaho, which sees hundreds of thousands of emergency department visits each year, reports that they are now transferring pregnant patients with medical emergencies out of state to get the care they need, but even that delay can also increase the unacceptable risks patients face. Not surprisingly, doctors do not want to practice in a state where they are criminalized for providing the emergency care their patients need: Since Idaho’s extreme abortion ban took effect, more than 20 percent of obstetricians in Idaho have left the state, according to a report published by the Idaho Coalition for Safe Healthcare.

If the Supreme Court sides with Idaho in this case, these devastating effects on patients and doctors alike could spread to other states with extreme abortion bans, such as Arizona, and would give anti-abortion politicians around the country the green light to try to prohibit this essential, even life-saving, emergency care.

This case is about doctors and hospitals that want to provide care, but politicians want to stop them from treating patients.

The issues in this case are about hospitals and physicians who want to fulfill their oath and provide care to patients experiencing medical emergencies, but politicians want to enforce Idaho’s abortion ban up until the moment that a pregnant person’s life is at imminent risk. “Can I continue to replace her blood loss fast enough? How many organ systems must be failing? Can a patient be hours away from death before I intervene, or does it have to be minutes?”

In Alabama, Embryos Are People and It Won't Stop There

In Alabama, Embryos Are People and It Won't Stop There

On February 16, the Alabama Supreme Court ruled that frozen embryos are children under state law, meaning the embryo has rights consistent with a person living in the United States. While this marks the first time a frozen embryo has been granted ...

On February 16, the Alabama Supreme Court ruled that frozen embryos are children under state law, meaning the embryo has rights consistent with a person living in the United States. While this marks the first time a frozen embryo has been granted ...

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These are some of the questions our client Dr. Caitlin Gustafson shared that some Idaho providers are now forced to consider when a patient comes in with an emergency pregnancy complication in a recent op-ed on the case. Politics shouldn’t matter when you’re trying to treat a patient whose condition is rapidly deteriorating before your very eyes, but that’s the exact dystopia politicians are trying to force on all of us.

The extremists behind this case won’t stop with abortion.

Overturning Roe v. Wade was just the beginning. Anti-abortion politicians are using every tool at their disposal in their campaign to ban abortion nationwide, and they won’t stop there. They are also pushing a legal strategy to give rights to embryos and fetuses that would override the rights of the pregnant person. We saw what happened in Alabama when the state supreme court granted rights to embryos, which forced IVF clinics across the state to temporarily shut down services. To be clear: There isn’t a serious argument to use EMTALA to grant legal rights to embryos, but that may not stop justices from considering whether to follow the lead of the anti-abortion movement and issue another devastating blow to people’s power to make personal medical decisions during pregnancy.

We have the power to fight back, and we will win!

Anti-abortion politicians and the groups supporting them are trying to use the courts to further their agenda because the policies they’re pushing are deeply unpopular. Every time abortion is on the ballot, voters send a clear message that they want reproductive freedom to be protected. That’s why the anti-abortion movement has turned to the courts to carry out their agenda, and the scary thing is they might just be successful.

While there is already federal law to protect access to emergency care, the way anti-abortion politicians are trying to manipulate their state’s ban to deny people emergency care shows why we need to put an end to state bans once and for all. We need Congress to pass federal protections for abortion rights that will end extreme bans in states and protect access to care nationwide.

Published April 30, 2024 at 07:21PM
via ACLU https://ift.tt/Eu5Ksmn

ACLU: How Comics Can Spark Conversations About Race and History in the Classroom

How Comics Can Spark Conversations About Race and History in the Classroom

Right now, efforts to censor college protestors, to ban diverse materials in schools and to silence students and staff threaten our right to free speech in schools. People are having their voices silenced, their right to learn challenged, and their access to information restricted. But how can we navigate these complex issues with the next generation?

We at the ACLU created a series of comic stories with illustrative journalist Eda Uzunlar to empower students and educators, spark vital conversations about their rights, and ensure all voices are heard and clear, both in the classroom and beyond. Our first installment illustrates the story of Anthony Crawford who is a public school teacher and part of a lawsuit challenging HB 1775, Oklahoma’s classroom censorship law.

In this Q&A, we sat down with Eda to discuss why comics are the perfect medium to tackle these issues and connect with young people in a way that resonates far more effectively than traditional media can.

Let’s start with your journey as an illustrative journalist, comic creator, and audio enthusiast. What inspired you to use this kind of medium for your work?

I’ve been making comics since childhood. Like most kids, I doodled, and eventually, my doodles turned into my first comic. It was about a character called Spaceman – creative, I know – an astronaut stranded on the moon. He was this sardonic, really sarcastic, figure. It was a simple concept. He became this kind of vessel for expressing myself as a young person, particularly growing up in South Dakota with my family being both Muslim and immigrants from Turkey. Expressing these issues in a way that people who were very different from me would understand was crucial to me.

I realized that comics are a way to discuss complex stories without oversimplifying them. But I never imagined it would become a career. Similarly, my entry into journalism was unexpected. Someone introduced me to FM radio in my teens. Within a year, community radio became this amazing space for me where I hosted a show discussing anything, from civil disobedience to whether or not respect is implied or earned – things I thought people from any background could weigh in on. And I don’t know why they gave a 16-year-old the ability to take live calls, but I got to talk to so many people in my community that way. It felt like a continuation of my comics — anonymous conversations driven by passion rather than preconceived notions based on appearances.

So I took those experiences and turned them into what I do now. I try to help people tell their stories – no matter how complex – in an accessible way, so others can gain understanding of perspectives they might not have known about before.

It’s so great how you’ve integrated your childhood passion for comics with your later pursuits in journalism and radio. You mentioned that comics offer a unique way to discuss complex issues without oversimplifying them. How do you navigate that balance between accessibility and depth when creating your comic content?

It’s all about breaking down big ideas into something digestible and engaging. When stories like these are presented in a visual format, it helps the audience both process and retain what they’re taking in. This especially applies to younger people. They’re the ones making use of social media and watching YouTube to learn about the world around them. Traditional newspapers? Not so much for them. And when we’re talking about accessibility, it’s a big deal. There’s a direct correlation between marginalized groups and limited access to media literacy. Traditional long-form journalism often fails to reach these communities.

Take, for instance, the whole debate around critical race theory (CRT) in Oklahoma. A long-winded article might not reach the people who need to hear about it most. But with comics, we’re able to package up those complex ideas into something that will catch your eye and is easy to grasp. It’s like delivering a message directly to their social media feed. By making these reported stories visually engaging and using everyday language, we’re making sure that everyone gets a chance to join the conversation, especially those who might feel left out by traditional media channels, especially the ones with a paywall.

Let’s talk about this first comic you worked on about Anthony Crawford, an Oklahoma teacher who is part of a lawsuit challenging a classroom censorship bill. How did your approach to brainstorming and initial sketches contribute to capturing his story, particularly in conveying the depth of Black history and the importance of including both student and teacher perspectives?

There’s a process where you try very hard not to limit yourself at the beginning. That’s where you do quick sketches of one panel ten times, trying anything that might be cool to represent the idea. For example, for the panel about Black history being filled with wisdom, not just difficulty, there are a thousand ways to approach it. That could be represented literally with historical figures, or the opposite, which is what I did – a tree. A really big, grand tree. On its own, it could mean anything. But with the context and few words in the panel, it suggests a huge heritage and lineage. Trees are generational, lasting hundreds or even thousands of years. I had about five ideas, and then I saw how the tree looked. The detail and grandeur of this single image helped convey the depth to which Anthony described the importance of Black history in America, aligning with the voice he gave it throughout the piece. That’s another thing – I went back and said, “Listen, there’s just a tree in this panel, but it’s based on how you talked about what Black history feels like to you.” Like history existed before we were here and after we’re gone, just like a tree. And he was like, “That’s perfect.”

Eda on Adding Figures in Black History to An Illustration

Download audio

With critical race theory and book bans, everyone loses. The teacher, the student, the whole community is affected when our right to learn and right to free speech are stifled. So we really wanted to get both the student and teacher perspectives. Anthony opened his own story as a teenage version of himself in the early 2000s, enraged because he wasn’t being taught his own community’s history, discussing his experience as a student, which served as an ideal starting point for the piece. Eventually, he transitions into the current day, where he’s facing the same problem – only now, he’s the teacher. And there’s this vague law in Oklahoma that makes it hard for him to teach that same history, and the history of other oppressed communities in America. This shift illustrates the cyclical nature of issues like CRT and book bans in Oklahoma, highlighting how such restrictions on free speech persist over time. The initial depiction of Anthony as an unhappy student parallels the final panel where he faces his own students, who are motivated to learn because they can actually see themselves in their histories.

From Anthony’s perspective as a teacher, the issue of critical race theory getting banned is represented as one that educators like him are worried about. How did you make sure that struggle spoke to the younger audience as well?

When students face dilemmas like seeing banned books in their libraries and the removal of celebrated authors of color from their curriculum, it can shake their confidence in their education and understanding of history. That’s the first part of the comic, and allows young people to make connections with the younger version of Anthony. Then, the narrative zeroes in on the educator perspective. Anthony champions diverse perspectives in his classroom. Through his actions, the comic reveals Anthony’s motivations for teaching, emphasizing his dedication to his students and his younger self. That’s where I wanted students to connect to the teacher side of the comic – so they know that if their right to an inclusive education is stifled, even if none of their own teachers have taken steps to continue teaching about America’s diverse history, there are educators out there who care and are making a difference. My hope is that by seeing someone who was once in their shoes assert his First Amendment rights, current students feel empowered to do the same for themselves.

Eda on Drawing Anthony

Download audio

In fact, I have seen my comics be used as a connection between students and teachers. I put out a comic about juvenile justice, and about a year later, a teacher from Wyoming reached out to me on Facebook and shared that one of their students shared my comic with them. Next thing you know, they’re teaching it in their classes, sparking discussions on juvenile justice, and showing students how to navigate tough situations. It’s pretty amazing, right? Shows how comics can really make a difference in the real world by influencing education and promoting meaningful dialogue.

Published April 30, 2024 at 01:08AM
via ACLU https://ift.tt/4e3kZdF

ACLU: How Comics Can Spark Conversations About Race and History in the Classroom

How Comics Can Spark Conversations About Race and History in the Classroom

Right now, efforts to censor college protestors, to ban diverse materials in schools and to silence students and staff threaten our right to free speech in schools. People are having their voices silenced, their right to learn challenged, and their access to information restricted. But how can we navigate these complex issues with the next generation?

We at the ACLU created a series of comic stories with illustrative journalist Eda Uzunlar to empower students and educators, spark vital conversations about their rights, and ensure all voices are heard and clear, both in the classroom and beyond. Our first installment illustrates the story of Anthony Crawford who is a public school teacher and part of a lawsuit challenging HB 1775, Oklahoma’s classroom censorship law.

In this Q&A, we sat down with Eda to discuss why comics are the perfect medium to tackle these issues and connect with young people in a way that resonates far more effectively than traditional media can.

Let’s start with your journey as an illustrative journalist, comic creator, and audio enthusiast. What inspired you to use this kind of medium for your work?

I’ve been making comics since childhood. Like most kids, I doodled, and eventually, my doodles turned into my first comic. It was about a character called Spaceman – creative, I know – an astronaut stranded on the moon. He was this sardonic, really sarcastic, figure. It was a simple concept. He became this kind of vessel for expressing myself as a young person, particularly growing up in South Dakota with my family being both Muslim and immigrants from Turkey. Expressing these issues in a way that people who were very different from me would understand was crucial to me.

I realized that comics are a way to discuss complex stories without oversimplifying them. But I never imagined it would become a career. Similarly, my entry into journalism was unexpected. Someone introduced me to FM radio in my teens. Within a year, community radio became this amazing space for me where I hosted a show discussing anything, from civil disobedience to whether or not respect is implied or earned – things I thought people from any background could weigh in on. And I don’t know why they gave a 16-year-old the ability to take live calls, but I got to talk to so many people in my community that way. It felt like a continuation of my comics — anonymous conversations driven by passion rather than preconceived notions based on appearances.

So I took those experiences and turned them into what I do now. I try to help people tell their stories – no matter how complex – in an accessible way, so others can gain understanding of perspectives they might not have known about before.

It’s so great how you’ve integrated your childhood passion for comics with your later pursuits in journalism and radio. You mentioned that comics offer a unique way to discuss complex issues without oversimplifying them. How do you navigate that balance between accessibility and depth when creating your comic content?

It’s all about breaking down big ideas into something digestible and engaging. When stories like these are presented in a visual format, it helps the audience both process and retain what they’re taking in. This especially applies to younger people. They’re the ones making use of social media and watching YouTube to learn about the world around them. Traditional newspapers? Not so much for them. And when we’re talking about accessibility, it’s a big deal. There’s a direct correlation between marginalized groups and limited access to media literacy. Traditional long-form journalism often fails to reach these communities.

Take, for instance, the whole debate around critical race theory (CRT) in Oklahoma. A long-winded article might not reach the people who need to hear about it most. But with comics, we’re able to package up those complex ideas into something that will catch your eye and is easy to grasp. It’s like delivering a message directly to their social media feed. By making these reported stories visually engaging and using everyday language, we’re making sure that everyone gets a chance to join the conversation, especially those who might feel left out by traditional media channels, especially the ones with a paywall.

Let’s talk about this first comic you worked on about Anthony Crawford, an Oklahoma teacher who is part of a lawsuit challenging a classroom censorship bill. How did your approach to brainstorming and initial sketches contribute to capturing his story, particularly in conveying the depth of Black history and the importance of including both student and teacher perspectives?

There’s a process where you try very hard not to limit yourself at the beginning. That’s where you do quick sketches of one panel ten times, trying anything that might be cool to represent the idea. For example, for the panel about Black history being filled with wisdom, not just difficulty, there are a thousand ways to approach it. That could be represented literally with historical figures, or the opposite, which is what I did – a tree. A really big, grand tree. On its own, it could mean anything. But with the context and few words in the panel, it suggests a huge heritage and lineage. Trees are generational, lasting hundreds or even thousands of years. I had about five ideas, and then I saw how the tree looked. The detail and grandeur of this single image helped convey the depth to which Anthony described the importance of Black history in America, aligning with the voice he gave it throughout the piece. That’s another thing – I went back and said, “Listen, there’s just a tree in this panel, but it’s based on how you talked about what Black history feels like to you.” Like history existed before we were here and after we’re gone, just like a tree. And he was like, “That’s perfect.”

Eda on Adding Figures in Black History to An Illustration

Download audio

With critical race theory and book bans, everyone loses. The teacher, the student, the whole community is affected when our right to learn and right to free speech are stifled. So we really wanted to get both the student and teacher perspectives. Anthony opened his own story as a teenage version of himself in the early 2000s, enraged because he wasn’t being taught his own community’s history, discussing his experience as a student, which served as an ideal starting point for the piece. Eventually, he transitions into the current day, where he’s facing the same problem – only now, he’s the teacher. And there’s this vague law in Oklahoma that makes it hard for him to teach that same history, and the history of other oppressed communities in America. This shift illustrates the cyclical nature of issues like CRT and book bans in Oklahoma, highlighting how such restrictions on free speech persist over time. The initial depiction of Anthony as an unhappy student parallels the final panel where he faces his own students, who are motivated to learn because they can actually see themselves in their histories.

From Anthony’s perspective as a teacher, the issue of critical race theory getting banned is represented as one that educators like him are worried about. How did you make sure that struggle spoke to the younger audience as well?

When students face dilemmas like seeing banned books in their libraries and the removal of celebrated authors of color from their curriculum, it can shake their confidence in their education and understanding of history. That’s the first part of the comic, and allows young people to make connections with the younger version of Anthony. Then, the narrative zeroes in on the educator perspective. Anthony champions diverse perspectives in his classroom. Through his actions, the comic reveals Anthony’s motivations for teaching, emphasizing his dedication to his students and his younger self. That’s where I wanted students to connect to the teacher side of the comic – so they know that if their right to an inclusive education is stifled, even if none of their own teachers have taken steps to continue teaching about America’s diverse history, there are educators out there who care and are making a difference. My hope is that by seeing someone who was once in their shoes assert his First Amendment rights, current students feel empowered to do the same for themselves.

Eda on Drawing Anthony

Download audio

In fact, I have seen my comics be used as a connection between students and teachers. I put out a comic about juvenile justice, and about a year later, a teacher from Wyoming reached out to me on Facebook and shared that one of their students shared my comic with them. Next thing you know, they’re teaching it in their classes, sparking discussions on juvenile justice, and showing students how to navigate tough situations. It’s pretty amazing, right? Shows how comics can really make a difference in the real world by influencing education and promoting meaningful dialogue.

Published April 29, 2024 at 08:38PM
via ACLU https://ift.tt/aCFRx3e

ACLU: Open Letter to College and University Presidents on Student Protests

Open Letter to College and University Presidents on Student Protests

Dear College and University Presidents:

We write in response to the recent protests that have spread across our nation’s university and college campuses, and the disturbing arrests that have followed. We understand that as leaders of your campus communities, it can be extraordinarily difficult to navigate the pressures you face from politicians, donors, and faculty and students alike. You also have legal obligations to combat discrimination and a responsibility to maintain order. But as you fashion responses to the activism of your students (and faculty and staff), it is essential that you not sacrifice principles of academic freedom and free speech that are core to the educational mission of your respected institution.

The ACLU helped establish the right to protest as a central pillar of the First Amendment. We have defended those principles for more than a century. The First Amendment compels public universities and colleges to respect free speech rights. And while the Constitution does not apply directly to private institutions, academic freedom and free inquiry require that similar principles guide private universities. We approach this moment with appreciation for the challenges you confront. In the spirit of offering constructive solutions for a way forward, we offer five basic guardrails to ensure freedom of speech and academic freedom while protecting against discriminatory harassment and disruptive conduct.

Schools must not single out particular viewpoints for censorship, discipline, or disproportionate punishment

First, university administrators must not single out particular viewpoints — however offensive they may be to some members of the community — for censorship, discipline, or disproportionate punishment. Viewpoint neutrality is essential. Harassment directed at individuals because of their race, ethnicity, or religion is not, of course, permissible. But general calls for a Palestinian state “from the river to the sea,” or defenses of Israel’s assault on Gaza, even if many listeners find these messages deeply offensive, cannot be prohibited or punished by a university that respects free speech principles.

These protections extend to both students and faculty, and to speech that supports either side of the conflict. Outside the classroom, including on social media, students and professors must be free to express even the most controversial political opinions without fear of discipline or censure. Inside the classroom, speech can be and always has been subject to more restrictive rules to ensure civil dialogue and a robust learning environment. But such rules have no place in a public forum like a campus green. Preserving physical safety on campuses is paramount; but “safety” from ideas or views that one finds offensive is anathema to the very enterprise of the university.

Schools must protect students from discriminatory harassment and violence

Second, both public and private universities are bound by civil rights laws that guarantee all students equal access to education, including Title VI of the Civil Rights Act. This means that schools can, and indeed must, protect students from discriminatory harassment on the basis of race or national origin, which has been interpreted to include discrimination on the basis of “shared ancestry or ethnic characteristics,” or “citizenship or residency in a country with a dominant religion or distinct religious identity.”

So, while offensive and even racist speech is constitutionally protected, shouting an epithet at a particular student or pinning an offensive sign to their dorm room door can constitute impermissible harassment, not free speech. Antisemitic or anti-Palestinian speech targeted at individuals because of their ethnicity or national origin constitutes invidious discrimination, and cannot be tolerated. Physically intimidating students by blocking their movements or pursuing them aggressively is unprotected conduct, not protected speech. It should go without saying that violence is never an acceptable protest tactic.

Speech that is not targeted at an individual or individuals because of their ethnicity or national origin but merely expresses impassioned views about Israel or Palestine is not discrimination and should be protected. The only exception for such untargeted speech is where it is so severe or pervasive that it denies students equal access to an education — an extremely demanding standard that has almost never been met by pure speech. One can criticize Israel’s actions, even in vituperative terms, without being antisemitic. And by the same token, one can support Israel’s actions in Gaza and condemn Hamas without being anti-Muslim. Administrators must resist the tendency to equate criticism with discrimination. Speech condoning violence can be condemned, to be sure. But it cannot be the basis for punishment, without more.

Schools can announce and enforce reasonable content-neutral protest policies but they must leave ample room for students to express themselves

Third, universities can announce and enforce reasonable time, place, or manner restrictions on protest activity to ensure that essential college functions can continue. Such restrictions must be content neutral, meaning that they do not depend on the substance of what is being communicated, but rather where, when, or how it is being communicated. Protests can be limited to certain areas of campus and certain times of the day, for example. These policies must, however, leave ample room for students to speak to and to be heard by other members of the community. And the rules must not only be content neutral on their face; they must also be applied in a content-neutral manner. If a university has routinely tolerated violations of its rules, and suddenly enforces them harshly in a specific context, singling out particular views for punishment, the fact that the policy is formally neutral on its face does not make viewpoint-based enforcement permissible.

Schools must recognize that armed police on campus can endanger students and are a measure of last resort

Fourth, when enforcement of content-neutral rules may be warranted, college administrators should involve police only as a last resort, after all other efforts have been exhausted. Inviting armed police into a campus protest environment, even a volatile one, can create unacceptable risks for all students and staff. University officials must also be cognizant of the history of law enforcement using inappropriate and excessive force on communities of color, including Black, Brown, and immigrant students. Moreover, arresting peaceful protestors is also likely to escalate, not calm, the tensions on campus — as events of the past week have made abundantly clear.

Schools must resist the pressures placed on them by politicians seeking to exploit campus tensions

Finally, campus leaders must resist the pressures placed on them by politicians seeking to exploit campus tensions to advance their own notoriety or partisan agendas. Recent congressional hearings have featured disgraceful attacks by members of Congress on academic freedom and freedom of speech. Universities must stand up to such intimidation, and defend the principles of academic freedom so essential to their integrity and mission.

The Supreme Court has forcefully rejected the premise that, “because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.”

“Quite to the contrary,” the court stated, “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” In keeping with these values, we urge you to resist the temptation to silence students or faculty members because powerful voices deem their views offensive. Instead, we urge you to defend the university’s core mission of encouraging debate, fostering dissent, and preparing the future leaders of our pluralistic society to tolerate even profound differences of opinion.

Published April 27, 2024 at 01:33AM
via ACLU https://ift.tt/LwKcUN0

ACLU: Open Letter to College and University Presidents on Student Protests

Open Letter to College and University Presidents on Student Protests

Dear College and University Presidents:

We write in response to the recent protests that have spread across our nation’s university and college campuses, and the disturbing arrests that have followed. We understand that as leaders of your campus communities, it can be extraordinarily difficult to navigate the pressures you face from politicians, donors, and faculty and students alike. You also have legal obligations to combat discrimination and a responsibility to maintain order. But as you fashion responses to the activism of your students (and faculty and staff), it is essential that you not sacrifice principles of academic freedom and free speech that are core to the educational mission of your respected institution.

The ACLU helped establish the right to protest as a central pillar of the First Amendment. We have defended those principles for more than a century. The First Amendment compels public universities and colleges to respect free speech rights. And while the Constitution does not apply directly to private institutions, academic freedom and free inquiry require that similar principles guide private universities. We approach this moment with appreciation for the challenges you confront. In the spirit of offering constructive solutions for a way forward, we offer five basic guardrails to ensure freedom of speech and academic freedom while protecting against discriminatory harassment and disruptive conduct.

Schools must not single out particular viewpoints for censorship, discipline, or disproportionate punishment

First, university administrators must not single out particular viewpoints — however offensive they may be to some members of the community — for censorship, discipline, or disproportionate punishment. Viewpoint neutrality is essential. Harassment directed at individuals because of their race, ethnicity, or religion is not, of course, permissible. But general calls for a Palestinian state “from the river to the sea,” or defenses of Israel’s assault on Gaza, even if many listeners find these messages deeply offensive, cannot be prohibited or punished by a university that respects free speech principles.

These protections extend to both students and faculty, and to speech that supports either side of the conflict. Outside the classroom, including on social media, students and professors must be free to express even the most controversial political opinions without fear of discipline or censure. Inside the classroom, speech can be and always has been subject to more restrictive rules to ensure civil dialogue and a robust learning environment. But such rules have no place in a public forum like a campus green. Preserving physical safety on campuses is paramount; but “safety” from ideas or views that one finds offensive is anathema to the very enterprise of the university.

Schools must protect students from discriminatory harassment and violence

Second, both public and private universities are bound by civil rights laws that guarantee all students equal access to education, including Title VI of the Civil Rights Act. This means that schools can, and indeed must, protect students from discriminatory harassment on the basis of race or national origin, which has been interpreted to include discrimination on the basis of “shared ancestry or ethnic characteristics,” or “citizenship or residency in a country with a dominant religion or distinct religious identity.”

So, while offensive and even racist speech is constitutionally protected, shouting an epithet at a particular student or pinning an offensive sign to their dorm room door can constitute impermissible harassment, not free speech. Antisemitic or anti-Palestinian speech targeted at individuals because of their ethnicity or national origin constitutes invidious discrimination, and cannot be tolerated. Physically intimidating students by blocking their movements or pursuing them aggressively is unprotected conduct, not protected speech. It should go without saying that violence is never an acceptable protest tactic.

Speech that is not targeted at an individual or individuals because of their ethnicity or national origin but merely expresses impassioned views about Israel or Palestine is not discrimination and should be protected. The only exception for such untargeted speech is where it is so severe or pervasive that it denies students equal access to an education — an extremely demanding standard that has almost never been met by pure speech. One can criticize Israel’s actions, even in vituperative terms, without being antisemitic. And by the same token, one can support Israel’s actions in Gaza and condemn Hamas without being anti-Muslim. Administrators must resist the tendency to equate criticism with discrimination. Speech condoning violence can be condemned, to be sure. But it cannot be the basis for punishment, without more.

Schools can announce and enforce reasonable content-neutral protest policies but they must leave ample room for students to express themselves

Third, universities can announce and enforce reasonable time, place, or manner restrictions on protest activity to ensure that essential college functions can continue. Such restrictions must be content neutral, meaning that they do not depend on the substance of what is being communicated, but rather where, when, or how it is being communicated. Protests can be limited to certain areas of campus and certain times of the day, for example. These policies must, however, leave ample room for students to speak to and to be heard by other members of the community. And the rules must not only be content neutral on their face; they must also be applied in a content-neutral manner. If a university has routinely tolerated violations of its rules, and suddenly enforces them harshly in a specific context, singling out particular views for punishment, the fact that the policy is formally neutral on its face does not make viewpoint-based enforcement permissible.

Schools must recognize that armed police on campus can endanger students and are a measure of last resort

Fourth, when enforcement of content-neutral rules may be warranted, college administrators should involve police only as a last resort, after all other efforts have been exhausted. Inviting armed police into a campus protest environment, even a volatile one, can create unacceptable risks for all students and staff. University officials must also be cognizant of the history of law enforcement using inappropriate and excessive force on communities of color, including Black, Brown, and immigrant students. Moreover, arresting peaceful protestors is also likely to escalate, not calm, the tensions on campus — as events of the past week have made abundantly clear.

Schools must resist the pressures placed on them by politicians seeking to exploit campus tensions

Finally, campus leaders must resist the pressures placed on them by politicians seeking to exploit campus tensions to advance their own notoriety or partisan agendas. Recent congressional hearings have featured disgraceful attacks by members of Congress on academic freedom and freedom of speech. Universities must stand up to such intimidation, and defend the principles of academic freedom so essential to their integrity and mission.

The Supreme Court has forcefully rejected the premise that, “because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.”

“Quite to the contrary,” the court stated, “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” In keeping with these values, we urge you to resist the temptation to silence students or faculty members because powerful voices deem their views offensive. Instead, we urge you to defend the university’s core mission of encouraging debate, fostering dissent, and preparing the future leaders of our pluralistic society to tolerate even profound differences of opinion.

Published April 26, 2024 at 09:03PM
via ACLU https://ift.tt/gYR37qh

Arab Republic of Egypt: First and Second Reviews Under the Extended Arrangement Under the Extended Fund Facility, Monetary Policy Consultation, and Requests for Waiver of Nonobservance of a Performance Criterion, and Augmentation and Rephasing of Access-Press Release; and Staff Report

Arab Republic of Egypt: First and Second Reviews Under the Extended Arrangement Under the Extended Fund Facility, Monetary Policy Consultation, and Requests for Waiver of Nonobservance of a Performance Criterion, and Augmentation and Rephasing of Access-Press Release; and Staff Report
Published April 26, 2024 at 07:00AM
Read more at imf.org

Suriname: Fifth Review Under the Extended Arrangement Under the Extended Fund Facility, Requests for Modification of Performance Criteria, Waivers of Nonobservance of a Performance Criterion, and Financing Assurances Review-Press Release; Staff Report; and Statement by the Executive Director for Suriname

Suriname: Fifth Review Under the Extended Arrangement Under the Extended Fund Facility, Requests for Modification of Performance Criteria, Waivers of Nonobservance of a Performance Criterion, and Financing Assurances Review-Press Release; Staff Report; and Statement by the Executive Director for Suriname
Published April 26, 2024 at 07:00AM
Read more at imf.org

ACLU: In Kansas, the ACLU Is Challenging Anti-Trans Laws in Court, and by Building Community

In Kansas, the ACLU Is Challenging Anti-Trans Laws in Court, and by Building Community

In 2023, Kansas enacted a law attempting to define “transgender” out of existence by restricting the definition of a “woman” to the biological function of producing ova. Not only does this definition negate the experiences of trans women and girls, but it also excludes entire categories of women who are not transgender, such as post-menopausal women, women experiencing reproductive challenges, and intersex women.

Despite being passed under the dubious title “Women’s Bill of Rights,” this law has not been used to create any new protections for women, nor improve support for women’s initiatives or resources. Instead, the law has been used to incite fear among transgender Kansans and limit their ability to live freely in our state.

Kansas v. Harper

Five transgender Kansans are challenging an effort by Kansas Attorney General Kobach to require the state to issue driver’s licenses with a...

Source: American Civil Liberties Union

Kansas Attorney General Kris Kobach has claimed the new law restricts trans Kansans from updating the gender marker on their state IDs. For years, Kansas had allowed transgender residents and those born here to change the gender marker on their driver’s licenses and birth certificates. Despite having these affirming policies without any identified administrative, public safety, or other concerns, the attorney general took to the courts to pressure state agencies into removing these policies.

In response, the Kansas Department of Health and Environment announced a policy change banning trans Kansans from updating the gender marker on their birth certificates. The Kansas Department of Revenue, which issues driver’s licenses, declined to change its policy — prompting Kobach to sue KDOR to force a policy change in Kansas v. Harper.

The ACLU of Kansas, along with ACLU’s LGBTQ & HIV Project and local partners, intervened in that lawsuit on behalf of five transgender Kansans to assert their right to a driver’s license that does not forcibly out them. Unfortunately, three days after the suit was filed and prior to our intervention, the judge issued a temporary order blocking trans Kansans from changing their license’s gender marker. The order, which remains in force, also requires a previously changed gender marker to revert back to the inaccurate marker when the license expires or is amended in the future.

This means trans people are not currently able to access accurate and affirming state identity documents in Kansas. Having an ID that reflects a trans person’s lived identity is crucial to their safety, privacy, and bodily autonomy. The research shows that lack of access to an affirming ID harms trans people, making them vulnerable to forced outing and increasing their chances of experiencing discrimination, harassment, and violence.

The ACLU of Kansas is going to keep fighting in Kansas v. Harper as long as necessary. But we also understand that trans people cannot wait months (or years) for a ruling from the courts affirming their basic constitutional rights. They must use their IDs in daily life for countless reasons, from picking up mail to purchasing items at the store. That’s why we began to partner with local LGBTQ advocates to uplift an alternative option for trans Kansans — gender-affirming federal IDs, like passport cards and passport booklets.

Trans people can self-attest their gender when applying for a federal ID, meaning they do not need a state ID that verifies their selected gender. For trans Kansans, this means they can still obtain a federal ID that reflects the gender they live as. The ACLU of Kansas and our community partners are thrilled that despite legislative and political attacks on trans Kansans, we are still able to support our community and reduce the harm flowing from anti-trans policies in our state.

The ACLU of Kansas has hosted numerous Know Your Rights events and Federal ID Clinics to provide resources and reassurance to trans Kansans. People who come to these events have been relieved and overwhelmed by the community support they experience. In the face of discriminatory laws trying to erase their existence, trans Kansans are coming together to share information and support each other. The power of community persists.

In the wake of nationwide anti-trans legislation and rhetoric over the past few years, events where trans Kansans can come together are even more important. In a rural state like Kansas where people can feel isolated, these events are not only an opportunity for people to access the assistance they need, but they also allow folks to connect and share in their pain and in their joy. One mother I met at a virtual event was ecstatic to know she could get her child a gender-affirming federal ID before they started college. She feared that her child would not be able to enroll for college with the correct name and gender marker because of the new anti-trans law.

Despite efforts by anti-trans extremists to try to deny our humanity, to isolate us, trans Kansans are not going anywhere. Thousands of trans people call Kansas home, and we will remain. We will continue to define our own lives, support each other, and build power. These laws may have produced a wide unknown but the power of our community is deeply rooted.

Published April 26, 2024 at 01:42AM
via ACLU https://ift.tt/ltIiSTL

ACLU: How is One of America's Biggest Spy Agencies Using AI? We're Suing to Find Out.

How is One of America's Biggest Spy Agencies Using AI? We're Suing to Find Out.

AI is nearly impossible for us to escape these days. Social media companies, schools, workplaces, and even dating apps are all trying to harness AI to remake their services and platforms, and AI can impact our lives in ways large and small While many of these efforts are just getting underway — and often raise significant civil rights issues — you might be surprised to learn that America’s most prolific spy agency has for years been one of AI’s biggest adopters.

The National Security Agency (NSA) is the self-described leader among U.S. intelligence agencies racing to develop and deploy AI. It’s also the agency that sweeps up vast quantities of our phone calls, text messages, and internet communications as it conducts mass surveillance around the world. In recent years, AI has transformed many of the NSA’s daily operations: the agency uses AI tools to help gather information on foreign governments, augment human language processing, comb through networks for cybersecurity threats, and even monitor its own analysts as they do their jobs.

Unfortunately, that’s about all we know. As the NSA integrates AI into some of its most profound decisions, it’s left us in the dark about how it uses AI and what safeguards, if any, are in place to protect everyday Americans and others around the globe whose privacy hangs in the balance.

That’s why we’re suing to find out what the NSA is hiding. Today, the ACLU filed a lawsuit under the Freedom of Information Act to compel the release of recently completed studies, roadmaps, and reports that explain how the NSA is using AI and what impact it is having on people’s civil rights and civil liberties. Indeed, although much of the NSA’s surveillance is aimed at people overseas, those activities increasingly the sensitive communications and data of people in the United States as well.

Behind closed doors, the NSA has been studying the effects of AI on its operations for several years. A year-and-a-half ago, the Inspectors General at the Department of Defense and the NSA issued a joint report examining how the NSA has integrated AI into its operations. NSA officials have also publicly lauded the completion of studies, roadmaps, and congressionally-mandated plans on the agency’s use of novel technologies like generative AI in its surveillance activities. But despite transparency pledges, none of those documents have been released to the public, not even in redacted form.

The government’s secrecy flies in the face of its own public commitments to transparency when it comes to AI. The Office of the Director of National Intelligence, which oversees the NSA and more than a dozen other intelligence agencies, has touted transparency as a core principle in its Artificial Intelligence Ethics Framework for the Intelligence Community. And administrations from both parties have reiterated that AI must be used in a manner that builds public confidence while also advancing principles of equity and justice. By failing to disclose the kinds of critical information sought in our lawsuit, the government is failing its own ethical standards: it is rapidly deploying powerful AI systems without public accountability or oversight.

The government’s lack of transparency is especially concerning given the dangers that AI systems pose for people’s civil rights and civil liberties. As we’ve already seen in areas like law enforcement and employment, using algorithmic systems to gather and analyze intelligence can compound privacy intrusions and perpetuate discrimination. AI systems may amplify biases already embedded in training data or rely on flawed algorithms, and they may have higher error rates when applied to people of color and marginalized communities. For example, built-in bias or flawed intelligence algorithms may lead to additional surveillance and investigation of individuals, exposing their lives to wide-ranging government scrutiny. In the most extreme cases, bad tips could be passed along to agencies like Department of Homeland Security or the FBI, leading to immigration consequences or even wrongful arrests.

AI tools have the potential to expand the NSA’s surveillance dragnet more than ever before, expose private facts about our lives through vast data-mining activities, and automate decisions that once relied on human expertise and judgment. These are dangerous, powerful tools, as the NSA’s own ethical principles recognize. The public deserves to know how the government is using them.

The Government is Racing to Deploy AI, But at What Cost to Our Freedom?

Our FOIA request seeks to uncover information about what types of AI tools intelligence agencies are deploying, what rules constrain their use, and...

Source: American Civil Liberties Union

Published April 25, 2024 at 03:47PM
via ACLU https://ift.tt/rqQLdsl

ACLU: How is One of America's Biggest Spy Agencies Using AI? We're Suing to Find Out.

How is One of America's Biggest Spy Agencies Using AI? We're Suing to Find Out.

AI is nearly impossible for us to escape these days. Social media companies, schools, workplaces, and even dating apps are all trying to harness AI to remake their services and platforms, and AI can impact our lives in ways large and small While many of these efforts are just getting underway — and often raise significant civil rights issues — you might be surprised to learn that America’s most prolific spy agency has for years been one of AI’s biggest adopters.

The National Security Agency (NSA) is the self-described leader among U.S. intelligence agencies racing to develop and deploy AI. It’s also the agency that sweeps up vast quantities of our phone calls, text messages, and internet communications as it conducts mass surveillance around the world. In recent years, AI has transformed many of the NSA’s daily operations: the agency uses AI tools to help gather information on foreign governments, augment human language processing, comb through networks for cybersecurity threats, and even monitor its own analysts as they do their jobs.

Five Things to Know About NSA Mass Surveillance and the Coming Fight in Congress

Here's what you need to know to follow the debate to rein in the government surveillance enabled by Section 702.

Source: American Civil Liberties Union

Unfortunately, that’s about all we know. As the NSA integrates AI into some of its most profound decisions, it’s left us in the dark about how it uses AI and what safeguards, if any, are in place to protect everyday Americans and others around the globe whose privacy hangs in the balance.

That’s why we’re suing to find out what the NSA is hiding. Today, the ACLU filed a lawsuit under the Freedom of Information Act to compel the release of recently completed studies, roadmaps, and reports that explain how the NSA is using AI and what impact it is having on people’s civil rights and civil liberties. Indeed, although much of the NSA’s surveillance is aimed at people overseas, those activities increasingly the sensitive communications and data of people in the United States as well.

Behind closed doors, the NSA has been studying the effects of AI on its operations for several years. A year-and-a-half ago, the Inspectors General at the Department of Defense and the NSA issued a joint report examining how the NSA has integrated AI into its operations. NSA officials have also publicly lauded the completion of studies, roadmaps, and congressionally-mandated plans on the agency’s use of novel technologies like generative AI in its surveillance activities. But despite transparency pledges, none of those documents have been released to the public, not even in redacted form.

The government’s secrecy flies in the face of its own public commitments to transparency when it comes to AI. The Office of the Director of National Intelligence, which oversees the NSA and more than a dozen other intelligence agencies, has touted transparency as a core principle in its Artificial Intelligence Ethics Framework for the Intelligence Community. And administrations from both parties have reiterated that AI must be used in a manner that builds public confidence while also advancing principles of equity and justice. By failing to disclose the kinds of critical information sought in our lawsuit, the government is failing its own ethical standards: it is rapidly deploying powerful AI systems without public accountability or oversight.

The government’s lack of transparency is especially concerning given the dangers that AI systems pose for people’s civil rights and civil liberties. As we’ve already seen in areas like law enforcement and employment, using algorithmic systems to gather and analyze intelligence can compound privacy intrusions and perpetuate discrimination. AI systems may amplify biases already embedded in training data or rely on flawed algorithms, and they may have higher error rates when applied to people of color and marginalized communities. For example, built-in bias or flawed intelligence algorithms may lead to additional surveillance and investigation of individuals, exposing their lives to wide-ranging government scrutiny. In the most extreme cases, bad tips could be passed along to agencies like Department of Homeland Security or the FBI, leading to immigration consequences or even wrongful arrests.

AI tools have the potential to expand the NSA’s surveillance dragnet more than ever before, expose private facts about our lives through vast data-mining activities, and automate decisions that once relied on human expertise and judgment. These are dangerous, powerful tools, as the NSA’s own ethical principles recognize. The public deserves to know how the government is using them.

Published April 25, 2024 at 08:17PM
via ACLU https://ift.tt/ObCQ3Lz

Republic of Kazakhstan: Financial Sector Assessment Program-Technical Note on Climate-Related Risks and Financial Stability

Republic of Kazakhstan: Financial Sector Assessment Program-Technical Note on Climate-Related Risks and Financial Stability
Published April 24, 2024 at 07:00AM
Read more at imf.org

ACLU: The Supreme Court Declined a Protestors' Rights Case. Here's What You Need to Know.

The Supreme Court Declined a Protestors' Rights Case. Here's What You Need to Know.

The Supreme Court recently declined to hear a case, Mckesson v. Doe, that could have affirmed that the First Amendment protects protest organizers from being held liable for illegal actions committed by others present that organizers did not direct or intend. The high court’s decision to not hear the case at this time left in place an opinion by the Fifth Circuit, which covers Louisiana, Mississippi, and Texas, that said a protest organizer could be liable for the independent, violent actions of others based on nothing more than a showing of negligence.

Across the country, many people have expressed concern about how the Supreme Court’s decision not to review, or hear, the case at this stage could impact the right to protest. The ACLU, which asked the court to take up the case, breaks down what the court’s denial of review means.

What Happened in Mckesson v. Doe?

The case, Mckesson v. Doe, was brought by a police officer against DeRay Mckesson, a prominent civil rights activist. The officer claims that Mckesson should be liable for personal injuries he suffered after an unknown individual — not Mckesson — threw a “rock-like” object at the officer during a 2016 protest of the killing of Alton Sterling by Baton Rouge, Louisiana police.

The officer does not claim that Mckesson encouraged or even knew about the rock-throwing. Rather than sue the rock-thrower, however, the officer is suing Mckesson on the theory that he allegedly organized the protest and in turn had a duty to protect every person there. In doing so, the argument goes, he “should have known” an assault could occur.

Mckesson v. Doe

Can a protest leader be held legally responsible for injuries inflicted by an unidentified person’s violent act at the protest?

Source: American Civil Liberties Union

The idea is that a protest organizer can be held responsible for what a stranger present at the protest does to someone else, not because the organizer asked or meant for them to do it, but merely because it was foreseeable that they might. If this theory of “negligent protest” were accepted, it would become far more risky to organize a protest. The ACLU has argued that this standard of liability violates the First Amendment in part because it would pose an unconstitutional burden on our right to protest.

Despite this, and after several years of procedural back-and-forth between courts, the Fifth Circuit ruled in 2023 that the negligence claim against McKesson did not violate the First Amendment. Instead, the Fifth Circuit held that a protest organizer could be liable for the independent, violent actions of others based on nothing more than a showing of negligence.

Recognizing how this decision squarely violates First Amendment fundamentals, the ACLU and co-counsel filed a petition for certiorari, asking the Supreme Court to overturn the Fifth Circuit’s obviously wrong ruling. Unfortunately, the court denied our petition.

What Does the Supreme Court’s Denial of Review Mean for Our Right to Protest?

While the Supreme Court does not generally explain why it declines to hear a case — and it can do so for any number of reasons — Justice Sonia Sotomayor wrote a statement accompanying the denial that might explain the reason in this case: the Supreme Court has already settled this question, so the law is not in need of further clarification.

In her statement, Justice Sotomayor explains that, in 2023, shortly after the Fifth Circuit’s decision, the Supreme Court issued an opinion in Counterman v. Colorado, where it confirmed that negligence is never a sufficient basis for imposing liability on political expression and association. In fact, in Counterman, the court made it explicitly clear that, when it comes to drawing the line between unprotected incitement and the kinds of “strong protests against the government and prevailing social order” that lie at the heart of the First Amendment, a showing of intent is required. That’s a much higher standard than negligence, which asks only whether someone who didn’t know what impact their speech would have should have known the possible effect. Intent, in contrast, requires that the speaker knew about, wanted, and aimed for the resulting harm.

Justice Sotomayor concluded her statement by emphasizing that while the Fifth Circuit did not have the benefit of the Supreme Court’s recent decision in Counterman when it issued its opinion, the lower courts in this case (and in general) now do, and are expected to fairly apply that decision in future proceedings.

Has Our Right to Protest Changed?

Some people have suggested that the Supreme Court’s decision not to hear this case means that our right to protest has been effectively abolished in three U.S. states. That’s not accurate.

While it is true that the Fifth Circuit’s erroneous decision has not been vacated, and technically could be invoked against protest organizers in Louisiana, Mississippi, and Texas, it is important to understand two things.

First, separate from the First Amendment problem, there’s the question of whether a “negligent protest” claim even exists under a state’s civil law. In Mckesson, the Louisiana Supreme Court said yes, but the high courts in Texas and Mississippi haven’t said the same. That means, the theory of “negligent protest” in Mckesson is specific to Louisiana state law.

Second, when it comes to the First Amendment, the Supreme Court has made it explicitly clear in many other cases that negligence is too low a threshold for imposing liability on one person for another person’s violence or other illegal acts at a protest.

To take just one example, in 1982, the court held that while the Constitution does not protect violence, it does limit the government’s ability to place responsibility for that violence onto peaceful protest leaders who did not direct or intend it. That seminal civil rights case, NAACP v. Claiborne Hardware Co., has been cited repeatedly to ensure robust speech protections, including to dismiss a lawsuit against then-candidate Donald Trump for violent acts committed by others at a campaign rally and to challenge efforts to stifle Keystone XL pipeline protests. As Justice Sotomayor’s statement highlighted, the court recently reaffirmed these rules in Counterman.

South Dakota Governor Caves on Attempted Efforts to Silence Pipeline Protesters

The state's quick retreat should serve as a lesson for other legislatures: if you criminalize protest, we will sue.

Source: American Civil Liberties Union

However, since the Supreme Court did not officially reverse the Fifth Circuit’s decision, it is possible that a court in Louisiana may decide to apply the Fifth Circuit’s logic. Say, for example, that a small crowd of people act violently at a protest in Louisiana and the protest organizer — who had no connection to the violence — is subsequently sued for negligence. The lower court should heed Justice Sotomayor’s statement, correctly apply Counterman, and dismiss this claim for violating the First Amendment. But it is possible that a lower court would still apply the Fifth Circuit’s decision, issued prior to Counterman. If that were to happen, the ACLU is interested in fighting alongside the organizer to ensure that the correct rule ultimately applies, and that the Fifth Circuit’s clearly erroneous decision does not govern anywhere.

Since our founding, efforts to silence dissent have emerged in moments of mass protest, like what we find ourselves in today. However, the Supreme Court has consistently upheld our right to protest and our right to be responsible only for our own actions. Today, the ACLU urges the lower courts to continue protecting our rights, and to deny the Fifth Circuit’s deeply misguided theory from gaining any traction. No one should be afraid to express dissent, to advocate for change, or to support causes they believe in.

Play the video

Published April 23, 2024 at 02:40AM
via ACLU https://ift.tt/brWocLm

ACLU: The Supreme Court Declined a Protestors' Rights Case. Here's What You Need to Know.

The Supreme Court Declined a Protestors' Rights Case. Here's What You Need to Know.

The Supreme Court recently declined to hear a case, Mckesson v. Doe, that could have affirmed that the First Amendment protects protest organizers from being held liable for illegal actions committed by others present that organizers did not direct or intend. The high court’s decision to not hear the case at this time left in place an opinion by the Fifth Circuit, which covers Louisiana, Mississippi, and Texas, that said a protest organizer could be liable for the independent, violent actions of others based on nothing more than a showing of negligence.

Across the country, many people have expressed concern about how the Supreme Court’s decision not to review, or hear, the case at this stage could impact the right to protest. The ACLU, which asked the court to take up the case, breaks down what the court’s denial of review means.

What Happened in Mckesson v. Doe?

The case, Mckesson v. Doe, was brought by a police officer against DeRay Mckesson, a prominent civil rights activist. The officer claims that Mckesson should be liable for personal injuries he suffered after an unknown individual — not Mckesson — threw a “rock-like” object at the officer during a 2016 protest of the killing of Alton Sterling by Baton Rouge, Louisiana police.

The officer does not claim that Mckesson encouraged or even knew about the rock-throwing. Rather than sue the rock-thrower, however, the officer is suing Mckesson on the theory that he allegedly organized the protest and in turn had a duty to protect every person there. In doing so, the argument goes, he “should have known” an assault could occur.

Mckesson v. Doe

Can a protest leader be held legally responsible for injuries inflicted by an unidentified person’s violent act at the protest?

Source: American Civil Liberties Union

The idea is that a protest organizer can be held responsible for what a stranger present at the protest does to someone else, not because the organizer asked or meant for them to do it, but merely because it was foreseeable that they might. If this theory of “negligent protest” were accepted, it would become far more risky to organize a protest. The ACLU has argued that this standard of liability violates the First Amendment in part because it would pose an unconstitutional burden on our right to protest.

Despite this, and after several years of procedural back-and-forth between courts, the Fifth Circuit ruled in 2023 that the negligence claim against McKesson did not violate the First Amendment. Instead, the Fifth Circuit held that a protest organizer could be liable for the independent, violent actions of others based on nothing more than a showing of negligence.

Recognizing how this decision squarely violates First Amendment fundamentals, the ACLU and co-counsel filed a petition for certiorari, asking the Supreme Court to overturn the Fifth Circuit’s obviously wrong ruling. Unfortunately, the court denied our petition.

What Does the Supreme Court’s Denial of Review Mean for Our Right to Protest?

While the Supreme Court does not generally explain why it declines to hear a case — and it can do so for any number of reasons — Justice Sonia Sotomayor wrote a statement accompanying the denial that might explain the reason in this case: the Supreme Court has already settled this question, so the law is not in need of further clarification.

In her statement, Justice Sotomayor explains that, in 2023, shortly after the Fifth Circuit’s decision, the Supreme Court issued an opinion in Counterman v. Colorado, where it confirmed that negligence is never a sufficient basis for imposing liability on political expression and association. In fact, in Counterman, the court made it explicitly clear that, when it comes to drawing the line between unprotected incitement and the kinds of “strong protests against the government and prevailing social order” that lie at the heart of the First Amendment, a showing of intent is required. That’s a much higher standard than negligence, which asks only whether someone who didn’t know what impact their speech would have should have known the possible effect. Intent, in contrast, requires that the speaker knew about, wanted, and aimed for the resulting harm.

Justice Sotomayor concluded her statement by emphasizing that while the Fifth Circuit did not have the benefit of the Supreme Court’s recent decision in Counterman when it issued its opinion, the lower courts in this case (and in general) now do, and are expected to fairly apply that decision in future proceedings.

Has Our Right to Protest Changed?

Some people have suggested that the Supreme Court’s decision not to hear this case means that our right to protest has been effectively abolished in three U.S. states. That’s not accurate.

While it is true that the Fifth Circuit’s erroneous decision has not been vacated, and technically could be invoked against protest organizers in Louisiana, Mississippi, and Texas, it is important to understand two things.

First, separate from the First Amendment problem, there’s the question of whether a “negligent protest” claim even exists under a state’s civil law. In Mckesson, the Louisiana Supreme Court said yes, but the high courts in Texas and Mississippi haven’t said the same. That means, the theory of “negligent protest” in Mckesson is specific to Louisiana state law.

Second, when it comes to the First Amendment, the Supreme Court has made it explicitly clear in many other cases that negligence is too low a threshold for imposing liability on one person for another person’s violence or other illegal acts at a protest.

To take just one example, in 1982, the court held that while the Constitution does not protect violence, it does limit the government’s ability to place responsibility for that violence onto peaceful protest leaders who did not direct or intend it. That seminal civil rights case, NAACP v. Claiborne Hardware Co., has been cited repeatedly to ensure robust speech protections, including to dismiss a lawsuit against then-candidate Donald Trump for violent acts committed by others at a campaign rally and to challenge efforts to stifle Keystone XL pipeline protests. As Justice Sotomayor’s statement highlighted, the court recently reaffirmed these rules in Counterman.

South Dakota Governor Caves on Attempted Efforts to Silence Pipeline Protesters

The state's quick retreat should serve as a lesson for other legislatures: if you criminalize protest, we will sue.

Source: American Civil Liberties Union

However, since the Supreme Court did not officially reverse the Fifth Circuit’s decision, it is possible that a court in Louisiana may decide to apply the Fifth Circuit’s logic. Say, for example, that a small crowd of people act violently at a protest in Louisiana and the protest organizer — who had no connection to the violence — is subsequently sued for negligence. The lower court should heed Justice Sotomayor’s statement, correctly apply Counterman, and dismiss this claim for violating the First Amendment. But it is possible that a lower court would still apply the Fifth Circuit’s decision, issued prior to Counterman. If that were to happen, the ACLU is interested in fighting alongside the organizer to ensure that the correct rule ultimately applies, and that the Fifth Circuit’s clearly erroneous decision does not govern anywhere.

Since our founding, efforts to silence dissent have emerged in moments of mass protest, like what we find ourselves in today. However, the Supreme Court has consistently upheld our right to protest and our right to be responsible only for our own actions. Today, the ACLU urges the lower courts to continue protecting our rights, and to deny the Fifth Circuit’s deeply misguided theory from gaining any traction. No one should be afraid to express dissent, to advocate for change, or to support causes they believe in.

Play the video

Published April 22, 2024 at 10:10PM
via ACLU https://ift.tt/hqjyCQu