Tag Archive for: FirstAmendment

Law Schools’ Heckling Trends Show Disturbing Future For The Legal System, Experts Argue

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Law schools that permit students to heckle and disrupt speakers fail to impress upon them the importance of free speech rights and could have a negative impact on the future of the legal profession, experts told the Daily Caller News Foundation.

In the past year, protestors have attempted to shut down speakers at Stanford University, Yale University, University of California, San Francisco and Georgetown University because of their political views. If law schools fail to teach students how to respect free speech during their time in school, that will be reflected in the legal profession when the students graduate, experts argue.

“As future lawyers, law students have an ethical obligation to respect the rule of law,” CeCe O’Leary, a Southeastern Legal Foundation (SLF) attorney, told the DCNF. “When law schools fail to enforce their own heckler’s veto policies, they abdicate their duty to teach respect for the law.”

Law schools should be “dedicated to resolving disputes through reasoned debate, not through shouting down contrary views,” Eugene Volokh, a law professor at University of California Los Angeles, told the DCNF.

“When we see law students acting that way, especially with impunity, that bodes ill for their future as lawyers, or the future of the legal system more broadly,” he explained.

Last week,  (SLS) students and the school’s Associate Dean for Diversity, Equity, and Inclusion Tirien Steinbach heckled Fifth Circuit Judge Kyle Duncan during a discussion about COVID-19, guns and Twitter. Steinbach responded to Duncan’s call for an administrator to calm the room by asking him to reflect on whether his speech was “worth the pain that this causes and the division” while students shouted phrases including “your racism is showing” and “respect black women.”

“What we saw at Stanford Law school forebodes a concerning future for the rule of law in this country,” Speech First Executive Director Cherise Trump told the DCNF. “The behavior by the disrupters and the apparent encouragement by campus leaders not only normalizes these childish tactics, but it also normalizes the idea that if someone holds a different opinion then they are your political enemy and should be eliminated from the field. This type of thinking is incongruent with American jurisprudence and could seriously threaten the reliability and confidence in our legal system.”

Stanford later apologized for the disruptions, prompting hundreds of students to protest Jenny Martinez, law school dean, by dressing in black and lining the corridors to stare her down. Several student groups rejected the apology and doubled-down on their support for the disruption and for Steinbach’s intervention.

“In veiled language, the law school threw its capable and compassionate administrators who were present at the event, and who interceded productively, under the bus, and expressed an intent to ensure that such disruptions do not occur again,” the Stanford National Lawyers Guild wrote.

The guild said in its letter that the disruption was “justified” because of Duncan’s “abhorrent” behavior.

“It is ironic that Judge Duncan repeatedly criticized protestors for being ‘disrespectful,’” the group wrote. “Judge Duncan’s record, jurisprudence, views, and personal conduct are beyond “disrespectful”: they are as antithetical to the social justice mission of [National Lawyers Guild] as it is possible to be.”

When students are permitted to disrupt speaker events, they are learning that “suppression, rather than reasoned debate, is the right way to resolve disputes,” according to Volokh. Heckling, while unconstitutional, is also a sign that law schools aren’t doing a good enough job at “educating students about their First Amendment rights—both what they include and what they do not include,” O’Leary said.

The First Amendment is a common hot-button issue when it comes to proposed laws. New York, for example, considered a law that would have censored “hateful conduct” on social media, but it was shot down by the district court in February.

The FBI toed the line of First Amendment restrictions when it colluded with Twitter to censor specific accounts and may have infringed on users’ rights, experts previously told the DCNF.

The trend of heckling and disregarding free speech rights goes beyond Stanford, and examples can be pinpointed at several other universities nationwide.

In March 2022, students at the the formerly-known University of California, Hastings College of Law, now UC San Francisco, heckled conservative legal scholar Ilya Shapiro by shouting and banging their hands on the table to drown him out. The protest, which violated the school’s event policy prohibiting disruptions, came in response to a tweet Shapiro made in January 2022 criticizing President Joe Biden’s promise to select a black woman as his Supreme Court nominee, after which Georgetown University placed him on academic leave.

Georgetown law students held a sit-in protest soon after to demand Shapiro be terminated, as well as reparations including a place for students to cry, the National Review reported.

The frequent disruptions “are symptoms of a deeper problem of ideological uniformity at most law schools, and an intolerance for dissenting (usually right-of-center) viewpoints,” Bill Jacobson, founder of conservative non-profit Legal Insurrection and director of the securities law clinic at Cornell University, told the DCNF.

Surveys find that students on college campuses are afraid to voice their opinions on campus for fear of retaliation by peers or faculty members, according to a survey conducted by free speech watchdog Foundation for Individual Rights and Expression (FIRE). Broken down, the results revealed that conservative students are more likely than their liberal peers to feel like they can’t speak freely.

“Any law student who disagrees with woke DEI policies or activities on campus is completely silenced out of fear of being shouted down or targeted,” Trump added. “And keep in mind, the students who are encouraged to use tactics like this by administrators with political agendas will take these tactics with them as they enter the professional world. They will become attorneys, Supreme Court clerks, judges, lawmakers, and advisors.”

More than 100 students protested a free speech panel at Yale Law School in March 2022 that featured Monica Miller, American Humanist Association legal director, and Kristen Waggoner, president of the conservative legal organization Alliance Defending Freedom.

“Free speech is essential to a free society. It curbs gov’t power. Lawyers must engage with people & ideas they dislike,” Waggoner wrote in a Monday Twitter thread. “We can’t have a working justice system if advocates choose bullying & intimidation over logic & persuasion. Yet this is what some law schools teach & model.”

Public universities are bound by the First Amendment while many private universities, such as Stanford, “promise First Amendment-style free speech rights,” Haley Gluhanich, FIRE program officer, told the DCNF. These policies, however, are not always enforced.

“The problem is that these policies are not enforced because the vast majority of disruptions and shout-downs target conservative speakers who are unpopular with administrators and faculty,” Jacobson told the DCNF. “Empty words and platitudes from administrators make the problem worse, because it sends a message that no matter the policy, disruptions of conservative speakers have no negative consequences. I doubt this attitude of indifference would happen if the speakers being disrupted were left-of-center.”

Gluhanich said that schools that fail to protect speech “would only further encourage hecklers to use such tactics to stifle expression they disagree with, which will lead to fewer speakers, fewer ideas being shared, and fewer conversations.”

“When law schools not only allow, but in some cases encourage, their students to heckle and shout down speakers, they embarrass the entire legal profession,” Kimberly Hermanm, SLF general counsel, told the DCNF.

Georgetown, Yale and Stanford University did not immediately respond to the DCNF’s request for comment.

This article was published by The Daily Caller and is reproduced with permission.

The FBI Targeted Patriotic Conservatives Exercising Their First Amendment Rights: ‘They’re All Bleeping Terrorists’

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Antifa? Black Lives Matter? Come on, man! You’ll find it comforting to know that the FBI has been busy tracking the real terrorists that threaten the safety of every decent, law-abiding American today: people who traveled to Washington for Trump’s rally against election fraud on Jan. 6, 2021, and Americans who dare to oppose the relentless sacrifices to Moloch that are the cornerstone of the Democrat Party’s program. The FBI has become so thoroughly corrupt and politicized that its agents apparently have no problem serving as attack dogs for the Left’s sinister agenda.

Just The News reported Saturday that the feds have “politicized cases regarding Jan. 6 defendants and pro-lifers while retaliating against internal whistleblowers” as some of those same whistleblowers testified before the House Select Subcommittee on the Weaponization of the Federal Government. And Fox News reported Thursday that according to another whistleblower, “the FBI created a threat tag following the Supreme Court’s decision to overturn Roe v. Wade last year, but it later ‘shifted’ to focus on pro-life individuals,” as if they were the real threat.

George Hill, a retired supervisory intelligence analyst in the FBI’s Boston field office, testified that “the Washington Field Office pressured other field offices to investigate citizens for activities protected by the First Amendment.” The Washington feds wanted the Boston office “to open cases on, first, seven individuals who came up in a sweep of bank records served up by the Bank of America, and then a larger group of 140 Americans guilty of nothing more than riding buses to D.C. to attend former President Trump’s Stop the Steal rally on Jan. 6, 2021.” Nor was this pressure singular: “Washington, Hill believes, applied similar pressure on the Philadelphia Field Office.”

Hill testified that on a nationwide call with all 56 FBI field offices, Steve Jensen, who was at that time the chief of the FBI’s Domestic Terrorism Operations Center Section, asked the Philadelphia feds about their investigations of three individuals. “The Philadelphia office said the individuals had posted on social media about being pro-Second Amendment and anti-abortion, but that it didn’t mean they were ‘insurrectionists seeking to overturn our democracy,’ Hill recalled.” This cut no ice with Jensen, who shot back: “I don’t give a blank, they’re all bleeping terrorists, and we’re going to round them up.”

When the feds did round them up, they did so in the most brutal manner possible. Former FBI SWAT team member Steve Friend testified “that after raising concerns about using a SWAT team to arrest a subject of the Jan. 6 investigation, he was ordered off the job for a day. Friend explained that the Jan. 6 subject was cooperating with the FBI and willing to surrender voluntarily, so he was concerned that the bureau wasn’t using the least intrusive methods possible to arrest them.” Clearly the feds were not interested in being non-intrusive. They wanted to send a message, and they did with the arrests of pro-life activist Mark Houck.

Meanwhile, another FBI whistleblower, Garret O’Boyle, was suspended after he testified to Congress about the feds’ politicization. He explained: “I thought the FBI was being weaponized against agents or anybody who wanted to step forward and talk about malfeasance inside the agency prior to this. But now, after what has happened to me, I don’t think I can ever be convinced that it’s anything different than that.”

O’Boyle “testified that following the Supreme Court’s​​​​​​ decision to return abortion to the states in​ Dobbs v. Jackson Women’s Health Organization, the FBI prioritized possible threats against the justices from pro-lifers, focusing on ‘pro-life adherence.’” O’Boyle recounted: “Why are you focusing on pro-life people? It’s prochoice people who are the ones protesting or otherwise threatening violence in front of Supreme Court Justices’ houses.” But the FBI even wanted pregnancy centers investigated. O’Boyle remarked: “Why would we go and talk to these people about threats when, if somebody is going to be getting threatened, it would be them?”…..


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EXCLUSIVE: The Daily Signal Demands Documents on FBI Targeting ‘Radical Traditional Catholics’

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The Daily Signal filed a Freedom of Information Act request this week demanding that the FBI turn over all documents related to “radical traditional Catholics” and the Southern Poverty Law Center, as news broke that the FBI had published an internal memo about “radical traditional Catholics” citing the SPLC, which brands mainstream conservative and Christian nonprofits “hate groups,” putting them on a map with the Ku Klux Klan.

Although the FBI has since rescinded the memo, the FOIA request, submitted by the Heritage Oversight Project on behalf of The Daily Signal, should turn up related documents and shine more light on the situation.

FBI whistleblower Kyle Seraphin, who published the memo on UncoverDC.com Wednesday, had teased the release on Twitter: “Wait just a moment: the @FBI is writing intel products about ‘radical traditional Catholics’ (RTCs) and disseminating that that [sic] some Catholic Churches are a platform to promote violence?!”

“Because the FBI is Constitutionally prohibited from defining, issuing judgements on, or investigating non-violent religious practice and religious groups, the reported FBI intelligence product(s) suggest that the FBI is in possession of evidence that a nebulously ill-defined group of Catholics, to include some Catholic churches, have engaged in acts that fall within the elements of domestic terrorism violations of the United States Code,” Mike Howell, a senior adviser and investigative columnist at The Daily Signal, wrote in the FOIA request.

“Otherwise, it appears the FBI would not have undertaken any such analysis for a valid purpose,” Howell added.

The FOIA demands all documents with the terms “Southern Poverty Law Center” and “Catholic”; “SPLC” and “Catholic”; “traditional Catholic”; “RTC”; “Latin Mass” and “extremist”; and more.

The Daily Signal filed the FOIA on Wednesday, around the time that Seraphin, the FBI whistleblower, published the document he had earlier teased on Twitter.

The document, “Interest of Racially or Ethnically Motivated Violent Extremists in Radical Traditionalist Catholic Ideology Almost Certainly Presents New Mitigation Opportunities,” characterizes RTCs by “the rejection of the Second Vatican Council (Vatican II) as a valid church council; disdain for most of the popes elected since Vatican II, particularly Pope Francis and Pope John Paul II; and frequent adherence to anti-Semitic, anti-immigrant, anti-LGBTQ, and white supremacist ideology.”

The memo suggests that the FBI should monitor these Catholics through “the development of sources with access,” including in “places of worship,” and it cites a list of “hate groups” published by the SPLC.

As I explain in my book “Making Hate Pay: The Corruption of the Southern Poverty Law Center,” the SPLC took the program it used to bankrupt organizations associated with the Ku Klux Klan and weaponized it against conservative groups, partially to scare donors into ponying up cash and partially to silence ideological opponents.

After the SPLC fired its co-founder amid a racial discrimination and sexual harassment scandal in 2019, a former staffer claimed that the SPLC’s accusations of “hate” are a “cynical fundraising scam” aimed at “bilking northern liberals.” Critics across the political spectrum have voiced opposition and alarm at the organization’s hate group smears.

In 2012, a terrorist targeted the Family Research Council’s headquarters in the nation’s capital, entering the lobby with a semiautomatic pistol and then shooting and wounding a guard. The man told the FBI that he found the conservative organization on the SPLC’s “hate map” and intended to kill everyone in the building. That man pleaded guilty to committing an act of terror and received a 25-year prison sentence. The SPLC condemned the attack, but has kept the Family Research Council on its hate map ever since.

After The Daily Signal reached out to the FBI for comment on the document Wednesday, the FBI responded with a rare public retraction.

“While our standard practice is to not comment on specific intelligence products, this particular field office product—disseminated only within the FBI—regarding racially or ethnically motivated violent extremism does not meet the exacting standards of the FBI,” the FBI told The Daily Signal in a statement emailed Thursday.

“Upon learning of the document, FBI Headquarters quickly began taking action to remove the document from FBI systems and conduct a review of the basis for the document,” the bureau added.

Current and former FBI sources told The Daily Signal that the FBI has long considered the SPLC unreliable. “We got briefings that SPLC was not legitimate when I was at Quantico,” said Seraphin, the FBI whistleblower who released the memo.

George Hill, whose 11 years at the bureau included a stint as a supervisory intelligence analyst, called the memo “poorly sourced from sources who use unsubstantiated data to draw their own conclusions and not in compliance with FBI publication guidelines.” He said the Directorate of Intelligence released guidelines barring analysts from relying on the SPLC.

The Daily Signal FOIA may turn up documents revealing whether the FBI rejected that guidance and why. It may also reveal what led the FBI’s Richmond office to focus on traditional Catholics and whether any agents actually infiltrated Catholic churches.

On Friday, Virginia Republican Attorney General Jason Miyares and 19 other state attorneys general sent a letter to U.S. Attorney General Merrick Garland and FBI Director Christopher Wray, demanding that the Department of Justice and FBI “desist from investigating and surveilling Americans who have done nothing more than exercise their natural and constitutional right to practice their religion in a manner of their choosing.”

The attorneys general threatened legal action otherwise, promising to “take all lawful and appropriate means to protect the rights of our constituents as guaranteed by our Constitution.”

The attorneys general demanded that the DOJ release the full report, produce any documentation used in drafting it, produce any supporting documents and investigate how the report was drafted, and divulge whether the FBI has been using operatives to infiltrate houses of worship.

“Virginia has always protected our inalienable right to worship freely—without interference or intimidation,” Miyares told The Daily Signal in a statement Friday. “The leaked anti-Catholic FBI memo from our state capital that labeled Catholic Virginians as ‘violent extremists’ because of their religious beliefs is simply un-American and the suggestion that agents should recruit Catholics to spy on their fellow parishioners is just wrong.”

“Virginians should not and will not be targeted by their government because of their religious beliefs,” he added.

This article was published by The Daily Signal and is reproduced with permission.

Judge Orders Phoenix to Stop Censoring People For The Super Bowl

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On Thursday [2/9], an Arizona trial court judge ruled in favor of a small business owner represented by the Goldwater Institute against the city of Phoenix and its Super Bowl Censorship Ordinance. The judge found the ordinance violated free speech rights and unconstitutionally delegated power to the National Football League (NFL) and Super Bowl Host Committee.

The ordinance barred residents from placing signs on their own property without first getting approval from the NFL and the Host Committee—two private entities that Phoenix empowered to choose what kind of speech people were allowed to engage in.

Declaring the ordinance “an unconstitutional prior restraint on speech and an unconstitutional delegation of power,” the court gave the city 48 hours to review businessman Bramley Paulin’s request to put up an advertising sign at his business—and to do so without restricting what he’s allowed to say.

Judge Bradley Astrowsky found:

“There is no legitimate government interest in content-based regulation of signs, let alone regulation of signs based on the content preferences of private businesses that are given special privileges by the government. Courts have recognized two substantial government interests that can sometimes justify regulations on commercial signage: public safety and aesthetics…

In summary, the City created the need for this litigation by enacting an unconstitutional resolution. They further exacerbated the problem, by only choosing to remedy their error when it was too late for Plaintiff to apply to exercise his right to speech. The City’s offer that Plaintiff can file his temporary sign application only if permitted by a private entity renders the application of an otherwise facially constitutional resolution to be unconstitutional. Accordingly, Court intervention is required. Given the delay already occasioned by the City and the testimony provided by David Williams that the City typically responds to an application for temporary signage within three to five days, the Court will order an expedited consideration of Plaintiff’s applications. When confronted with a constitutional flaw in a law, Courts should try to limit the solution to the problem. Ayotte v, Planned Parenthood of N. New England, 546 U.S. 320 (2006). This is what this Court does here.”

Phoenix officials first adopted the Super Bowl Censorship Ordinance last fall, declaring a section of downtown a “clean zone” in which people were prohibited from putting up a sign without having it reviewed and approved by the NFL and the Host Committee. Because those are private businesses, though, the ordinance effectively gave for-profit companies the unrestricted power to choose what messages they were willing to allow in a large section of one of the nation’s biggest cities. Bramley, a business owner in the area, hoped to sell space for advertising signs to businesses—but they shared concerns regarding the city’s prohibition on free speech.

When Bramley sued the city, asking a judge to declare the ordinance unconstitutional, the city assured him that it would change the law. So Bramley agreed to a brief postponement of the lawsuit, expecting the city to repeal the ordinance and respect freedom of speech. But that’s not what happened. Instead, city officials simply moved the goalposts. They changed the ordinance to eliminate the NFL’s power to directly approve signage. But through its permitting process, the city indirectly still allowed the Host Committee—which, like the NFL, is a private business—the same power to approve or disapprove of messages. So, Bramley returned to court, and in a brief trial on Wednesday morning, proved that the city was unconstitutionally restricting his freedom of speech.

“I’m relieved the court has ruled against the city’s attempt to let private organizations decide what I can and cannot say on my own property,” Bramley said after hearing this morning’s news. “The city should have never allowed this to happen in the first place: it’s wrong for the government to let the NFL and other private groups censor business owners like me, or any residents of the downtown area.”

The case was especially urgent because the Super Bowl is now only days away, meaning that each hour reduced Bramley’s ability to put up the advertising signs. In fact, due to the city’s attempts to run out the clock, he has already lost some potential contracts, although other advertising opportunities still remain. Given the approaching deadline, Bramley asked the court to order the city to process his application for a sign immediately—without requiring Host Committee approval. The judge agreed. “The City shall make a decision concerning Plaintiff’s applications within 48-hours,” the order declares.

This article was published by Arizona Daily Independent and is reproduced with permission.

Super Bowl Suppression: Phoenix Gov’t Lets NFL Censor Free Speech

Estimated Reading Time: 2 minutes

Want to communicate with the public on your own property in downtown Phoenix? You’d better get permission from the National Football League (NFL) first.

It sounds outlandish. But as Phoenix gets ready to host Super Bowl LVII festivities in February, the city government has given the NFL the authority to censor signs on private property. Now, the Goldwater Institute is stepping in on behalf of a local business owner to demand that the government end this blatant, unconstitutional attack on Phoenicians’ fundamental right to free speech.

The United States Constitution and Arizona’s state constitution both guarantee individuals’ right to express themselves freely, without government censorship—and this includes the right to display signs on private property. Time and again, courts, including the U.S. Supreme Court, have said that the government cannot decide whether or not to allow a sign based on its message. The government certainly cannot make these decisions based on whether a private third party approves of another private party’s message.

But that’s exactly what the city of Phoenix is doing. In preparation for the Super Bowl, which will be played in nearby Glendale, the city has designated a nearly two-square-mile area (virtually all of downtown Phoenix) as a “Special Promotional and Civic Event Area.” Through February 19, 2023, no resident or business in this city-imposed “clean zone” is allowed to display temporary signage without the approval of the city and two private organizations: the NFL and the Arizona Super Bowl Host Committee. In other words, the city has banned hundreds of businesses, and thousands of residents, from speaking freely without permission from the government and two of the government’s handpicked entities.

That’s why the Goldwater Institute sent a letter to the city of Phoenix yesterday on behalf of Bramley Paulin, a Phoenix resident and business owner who has been unable to lease out his property for temporary signage placements due to the city’s restrictions. The letter requests written assurance from the city that Bramley and anyone approved by him may advertise on his property without unreasonable restriction and without any input or review by the NFL or the Super Bowl Host Committee.

Helping host Super Bowl festivities is an exciting opportunity for Arizonans. But hosting sporting events should not come at the cost of surrendering constitutional rights. And decisions about the free expression rights of downtown residents should not be delegated to unaccountable private parties.

The Goldwater Institute is leading the nationwide charge to defend free speech—whether by restoring free speech on college campuses or by fighting policies that compel Americans to speak against their will in order to practice their professions. Yesterday’s letter makes clear that Goldwater will never stop fighting to vindicate free speech and restore constitutional limits on governmental power.

This article was published by Goldwater Institute and is reproduced with permission.

The Government Conspired with Big Tech to Infringe on Free Speech

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The defenders of censorship hate the sunlight from @elonmusk. They complain “but Twitter was a private company!”

US case law throws cold water on this defense! “A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen.” Packingham vs NC.

Bottom line: the government conspired to remove valid public health messages and social media posts by myself and others, because they disagreed with the viewpoint which contradicted the federal government’s COVID-19 public health message and views.

It is the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet” that is “unfettered by Federal or State regulation.” 47 U.S.C. § 230(b)(2).

“While in the past there may have been difficulty in identifying the most important places… for the exchange of views, today the answer is clear. It is cyberspace — the ‘vast democratic forums of the Internet’ in general… and social media in particular.” Packingham vs NC

The federal government publicly criticized and exerted pressure on Twitter/META and other platforms for allowing views opposed to the federal government’s COVID-19 public health message to be posted on the Internet.”

In private communications, the federal government held regular BOLO “be-on-the-lookout” warning meetings with social media companies and overtly instructed them on the specific types of so called COVID-19 “disinformation” or “misinformation” that should be excluded from their platforms.

Twitter and Facebook even adjusted their policies and algorithms on valid public health messages and acceptable viewpoints on the Internet to align with the federal government pre-approved COVID-19 public health message and viewpoint.

Here’s the infographic which triggered my account suspension by Facebook. Every single point here is valid and backed by data, articles and peer-reviewed studies.

Facebook further acquiesced under duress by giving the government agencies millions of dollars in free advertising on their platforms so the government’s COVID-19 public health message would not be challenged on the Internet.

This is discriminatory collusion between private social media companies and the federal government. “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of the Univ. of Va.

Under the Free Speech Clause of the First Amendment, “discrimination against speech because of its message is presumed to be unconstitutional.”

A conspiracy between private and governmental actors satisfies the joint action test when they have had a “meeting of the minds” to “violate constitutional rights.” Fonda v. Gray, 707 F. 2d 435, 438 (9th Cir. 1983)

When a government actor has “so far insinuated itself into a position of interdependence” with private actors it is recognized as a joint participant in the challenged constitutional deprivation. See Gorenc v. Salt River Project Agr. Imp. & Power Dist., 869 F. 2d 503, 507

Such joint action between government and private parties transforms private actors into state actors. See Pasadena Republican Club v. W. Justice Ctr., 985 F. 3d 1161, 1167 (9th Cir. 2021).

When the federal government admits to conspiring with social media companies to censor messages on the Internet with which it disagrees both the government and the private companies are guilty of unconstitutional viewpoint discrimination.

Joint action exists where the government . . . encourages . . . unconstitutional conduct through its involvement with a private party . . . .” Ohno v. Yasuma, 723 F.3d 984, 996 (9th Cir. 2013).

Joint action further occurs when there is “substantial cooperation” between the private and state actors, or their actions were “inextricably intertwined.” Brunette v. Humane Society of Ventura Cnty., 294 F. 3d 1205, 1211 (9th Cir. 2002).

In short, don’t get gaslit! The government pressured Twitter to confirm and it did so infringing our rights!

This article was published by Brownstone Institute and is reproduced with permission.

The Right to Stay Silent

Estimated Reading Time: 4 minutes

Today [December 5] , the Supreme Court is hearing oral argument in a blockbuster free speech case. The case, 303 Creative v. Elenis, presents a crucial question about free-speech rights. What government interests, if any, could ever justify compelling someone “to speak or stay silent”?

The case involves Lorie Smith, a website and graphic designer in Colorado who runs her own studio, 303 Creative. Smith wants to create custom websites promoting weddings. But she is unwilling to use her artistic talents to create websites carrying messages she rejects—including the message that marriage can be anything other than a male-female union. She argues that the First Amendment protects that choice.

Colorado officials disagree. They read their public-accommodations law to require Smith to create custom websites celebrating same-sex weddings if she serves other weddings. That echoes the state’s position in Masterpiece Cakeshop v. Colorado Civil Rights Commission , where Colorado sought to compel a wedding-cake designer to make custom cakes celebrating same-sex weddings. I argued that that, too, was unlawful, but in the end, the Supreme Court resolved the case on other grounds.

In 303 Creative, the free-speech issue is unavoidable and quite focused. There’s no dispute that custom websites, full of words and graphics, are speech protected by the First Amendment. Colorado itself stipulated that Smith’s “graphic designs are expressive” and communicate a message. Nor does anyone deny that Smith sincerely opposes the message about the nature of marriage conveyed by the celebration of same-sex weddings.

The Supreme Court has held that “compelled speech”— state action forcing you to create or engage in speech carrying a message you reject—is unconstitutional, absent a compelling justification. So how do Colorado officials justify this compulsion?

First, they cite the crucial goal of eradicating discrimination. Yet they concede that Smith is “willing to work with all people regardless of classifications,” including sexual orientation. The discrimination here is Smith’s choosing (“discriminating”) among which messages to affirm in the speech she creates—just what the First Amendment exists to protect. The whole “point of all speech protection,” the Supreme Court has declared, is “to shield those choices of [speech] content that in someone’s eyes are misguided, or even hurtful.” Indeed, with maximal relevance here, the Court has twice held that the goal of curbing LGBT discrimination in public accommodations cannot justify using antidiscrimination law to force changes to the content of your speech. Simply put, there is no public-accommodations exception to the First Amendment.

Policing offensive speech is perilous; today’s offensive thought may be tomorrow’s social reform.

To be sure, there would be no free speech problem if a public accommodation law (for speech-neutral reasons) required vendors to engage in conduct they oppose—e.g., the provision of folding-chairs for a wedding reception. Not every moral or religious “complicity” objection implicates speech.

Even a vendor who does create speech products for some customers can be forced to make the same products for other customers if the new products would bear the same message (e.g., posters bearing the same inspirational quote). For then she isn’t being forced to change the content of her speech. But in 303 Creative, the message would change: A website celebrating John and Christine’s wedding does not imply that same-sex bonds are to be celebrated as marriages. A site celebrating John and Christopher’s does. Making a designer use her artistic talents to produce speech carrying a message she rejects “invades the sphere of intellect and spirit which it is the purpose of the First Amendment … to reserve from all official control,” as the Supreme Court has put it.

By analogy, suppose a Jewish person paints custom murals for synagogues bearing the words “you can find the Lord in this synagogue.” If Colorado made her paint custom murals for Christian houses of worship that read “you can find the Lord in this church,” the state would be forcing her to say something new. It wouldn’t matter that the law compelling her speech happened to be a public accommodations law (in this case, one barring religious discrimination).

Second, Colorado cites the need to ensure access to goods and services. But there’s no evidence that respecting the right of designers to control the content of the speech they create would deprive any couple of a wedding website, especially in a nation of over 250,000 graphic designers.

That leaves a third, more intuitively powerful justification: that forcing Smith to speak is necessary to prevent dignitary harm—the distress of being confronted with ideas one finds deeply offensive, hurtful, or demeaning. Colorado asserts that a graphic designer’s declining to create websites for same-sex weddings would inflict dignitary harm on gay couples.

The argument has appeal because offense is a real cost, which cannot be trivialized. But as the Supreme Court has repeatedly emphasized, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Even if the offensive ideas cause real pain. Even if they seem demeaning of minorities. Even in the context of public accommodations laws, and even when those laws concern sexual orientation. In one case, eight of the nine Justices—including Justices Ginsburg, Breyer, Sotomayor, and Kagan—affirmed Westboro Baptists’ right to picket the funeral of a fallen soldier with signs bearing anti-gay slurs and calumnies. If that speech was constitutionally protected, surely Smith’s choice is, too.

Policing offensive speech is perilous; today’s offensive thought may be tomorrow’s social reform. Curbing offense is also impossible in pluralistic societies, where most people hold views offensive to some. Even in this very case, offensiveness cuts both ways: If it’s hurtful to imply that same-sex unions aren’t marital, it’s hurtful to imply that traditional Christian—and Muslim, Jewish, and Hindu—convictions on marriage are bigoted. So free societies tolerate the expression of painful ideas. The First Amendment guards your right to speak or stay silent on their basis.

This article was published by Law and Liberty and is reproduced with permission.

Court Should Strike Down Compelled Speech In Website Design Case

Estimated Reading Time: 3 minutes

The Supreme Court will hear oral argument today [12/7] in one of its biggest First Amendment cases in years, 303 Creative LLC v. Elenis. It is the latest – and should be among the easiest to resolve – of the many cases in which vendors have asserted First Amendment rights not to assist in same‐​sex weddings, notwithstanding state and local anti‐​discrimination law. Cato has filed on behalf of the small business owners’ rights in many of these cases including Masterpiece Cakeshop and Arlene’s Flowers, as well as at earlier stages of this one. (Cato also filed in favor of the freedom to marry in cases such as Windsor and Obergefell, there being no contradiction between the two stands. Let freedom ring for all.)

As my colleague David Boaz summarizes today’s controversy at The Hill:

Lorie Smith… owns a graphic design firm in Colorado and wants to expand her business to include wedding websites.….As her brief to the Court says, “Smith will decline any request—no matter who makes it—to create content that contradicts the truths of the Bible.”

Smith’s faith is not mine. But like Voltaire, I fully defend her right to express her own ideas, and to refuse to express ideas she rejects.

[The] court ruled in the 1977 “Live Free or Die” license‐​plate case out of New Hampshire that forcing people to speak is just as unconstitutional as preventing or censoring speech….

The Supreme Court has noted the First Amendment “includes both the right to speak freely and the right to refrain from speaking at all” …the justices have said repeatedly that what the First Amendment protects is a “freedom of the individual mind, which the government violates whenever it tells a person what she must or must not say.”

On that basis, courts have found that abstract art, tattooing, stained glass windows, church architecture, nude dancing, and St. Patrick’s Day parades are protected by the First Amendment. Surely web design deserves equal protection.

In earlier cases, reasonable observers often disagreed as to whether such services as cake design and flower arrangement were imbued with enough expressive value to count as speech. But the Tenth Circuit in its decision acknowledged that Smith’s website design services do count as speech. Then it ruled against her anyway on the reasoning that even under strict scrutiny, the relevant legal standard, the loss of her right to stay silent was supposedly outweighed by Colorado’s interest in guaranteeing every consumer access to the services of every web designer. In agreeing to review the case, the Supreme Court indicated that it would squarely face the speech issue; it turned down the chance to review Smith’s possible religious liberty claims.

At the Masterpiece Cakeshop oral argument five years ago, as I’ve written, all four of the (then) liberal justices gave indications that even though they might not draw the line on speech at cake design, they would draw it somewhere.

Justice Ruth Bader Ginsburg, for example, suggested that one logical place to search for a line would be when cakes had words on them. Several Justices on both sides proposed that cakes bearing particular symbols, such as a cross or rainbow, might convey a message. Even Sotomayor jumped in at one point to suggest that Colorado was going too far with its aggressive legal stance, under which it might sometimes compel a baker to inscribe a particular Bible verse demanded by a customer. …

In short, the Justices yesterday were not going for a knockout in the culture wars; they were intelligently disputing the dimensions of a fairly narrow strip of legal territory [regarding what should count as speech]. Despite what you heard on social media, neither side was trying to gut discrimination laws on the one side, or require rainbow loyalty oaths on the other.

Since Masterpiece, the Court has been joined by three new Justices, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson. While chances are good that a majority will take a strong view of Smith’s speech rights, it is possible that some justices might prefer to break off in one way or another, as by ruling in her favor on narrower grounds. For example, they might propose sending the case back to the Tenth Circuit after rejecting that court’s bizarre analysis under which every creative business counts as a “monopoly” subject to compulsion because its output will inevitably differ from that of its competitors. Justices might also seek an off‐​ramp on the question of ripeness: Smith apparently hasn’t actually started her wedding service business yet, and a live case or controversy might arise only when an actual customer appears to whom she refuses service. (Or not.)

If the full Court does squarely reach Smith’s claim on the merits, it seems almost inconceivable that it will not rule in her favor, and uphold her rights against compelled speech. That would be a welcome and overdue victory for the liberty of all Americans.

This article was published by CATO Institute and is reproduced with permission.

The Illusion of Being Offended

Estimated Reading Time: 4 minutes

I cannot offend you. You cannot offend me.

People seem to be offended all over the place today and wear that badge on their sleeves like an honor or a cause. So much so, that freedom of expression has been under attack in an unprecedented way in our country.

There have been successful attempts at controlling speech, topics of conversation, and opinions, all under the guise of protecting people from being offended.

There is righteousness in being offended. At the drop of a hat, I can become a victim when I believe I can be offended by something someone has said or done. Or even something I assume or believe someone is thinking.  And today, what higher rank is there than victimhood?

If you say something I disagree with, I may take it personally and voila, I can invoke the “O” word. Offensive. It has been elevated to have quite an energetic charge around it.

Something you call offensive may not be considered offensive by me. Something that you stew on for days will slide right through my consciousness like water.  How can this be explained?

By clearing up a simple yet profound misunderstanding of the human experience. Once we begin to understand the true source of our experience, even a tiny inkling,  the entire notion of being offended begins to unravel. That you can actually offend me and I might need protection, will look ludicrous.

The key is seeing that you do not have the power to offend me. In fact, you don’t have the power to create or cause any experience or feeling in me. Seeing this for the first time can be a game-changer.

In a nutshell: at any and every moment, we experience our own thinking. Our thinking is a function of the energetic power of thought. Thought creates every experience and feeling we have. We can’t have an experience or feeling without thought. The colored lenses we all wear from which we look out at the world are made of the energy of thought. Thought filters everything we take in through our senses, creating our experience of life. The illusion is that our experience comes from the outside in. The truth is that it comes from the inside out via the energy of thought.

This would account for why it seems we are each living in our own separate realities. We are!

And how we each can have a different experience of the same words or events. We can and we do!

And how our experience can change from moment to moment. Thought is fluid. It is truly like the river in which you can’t put your foot in the same place twice.

And how you can hear something and declare “I am offended” and yet it will roll right off the other person’s back. Or in one moment you are not offended yet in the next, someone says you should be, and you are.

This understanding of thought would account for how real things appear when we dream at night. How we can feel truly frightened while we are asleep in a bed under some cozy blankets? How our hearts can pound or we can break into a sweat while running from demons in a dream.  This thought energy is the same energy that creates our daytime experiences.

I recently got to wear virtual reality goggles and fly a plane in my son-in-law’s basement. My heart was beating so fast as I looked down at the ground far below me. I got scared when he asked me if I wanted to land the plane. I was afraid of crashing!

Sitting at a computer in front of a plane’s instrument panel, my mind got tricked into believing I could actually crash that plane. I felt it in my belly. A mix of fear and excitement. I knew I was sitting in a chair in front of a machine, yet the power of thought created an entirely different reality. What a powerful illusion!

Being offended by something we have heard with our ears, and read with our eyes, is also an illusion. We confuse thought with reality. Your beliefs/thoughts are creating your reality, as are mine.  And if they are in opposition in some way and the topic at hand feels big to one of us,  the “I am offended” sword might come out.

What would the world be like if we were able to shed light on the misunderstanding of where our experiences and feelings come from? What if we all knew it was an inside-out job rather than outside-in? What if we all knew it was impossible for one person to offend another?

This looks like it would be a game-changer. Censoring speech would seem silly. Needing a safe space because someone might feel offended by words would look ridiculous. Open and honest debate and a wealth of different viewpoints would be respected rather than shunned or censored. We might be willing to truly listen to another’s point of view and attempt to understand where they are coming from.

Understanding you do not have the ability to offend me is powerful. I keep my power where it belongs. Within. And I know that any hurt I am experiencing is created from my own thoughts about something you have said. You cannot push my buttons because buttons do not exist. They, too, are made of thought.

It is a relief to know, deep down, that my comfort level is not controlled by another. What a gift. I cannot offend or be offended.  I may get fooled from time to time but if I wait awhile, my thoughts will flow through and I will see clearly again.

Humans are unbelievably resilient. Safe spaces exist within each one of us rather than outside of us. We can feel the full gamut of human emotions (joy to hurt and everything in between) yet be safe within our core.  I cannot offend you. You cannot offend me.

Understanding this is a gift and a stepping stone on the road to harmony.


Gayle Nobel is a life coach, author of 3 books, and blogger who is passionate about sharing a simple, yet profound understanding of the human experience.


Weekend Read: Media by the People

Estimated Reading Time: 14 minutes

Editors’ Note: We found the discussion below a little long, but interesting. In a sense, something like the Prickly Pear might be part of the answer. Our online magazine was founded on similar observations over two years ago, to wit, the corporate media is not serving the country well and that citizen journalists, like citizen soldiers, were needed. We partner with almost 40 organizations and have our own staff, to bring you content. We are all citizens called to step up to save the country from its descent into despotism. We are all volunteers and the work is done for the love of the country. The best thing you can do is bookmark us in your browser, tell others about us, and contribute money to our growth. Hit the button above that says “about us”, and then hit the red “support Prickly Pear” button at the bottom of the page. While we might have some policy disagreements with some authors, we agree that citizen journalism is badly needed. To our credit, we were one of the first such independent magazines, run solely by citizen volunteers. If Americans want things to improve, they cannot expect others to expend the effort. ‘We the People’ rule only when we the people make our voices heard.


In a recent piece, we argued that two complementary reforms are needed to make Abraham Lincoln’s 1863 vision of “government by the people” a reality in Western countries. To restore power to the people, we proposed a first reform that would assign ordinary people the role of appointing the leaders of our government bureaucracies and QuaNGOs, often collectively referred to as the ‘deep state,’ via citizen juries. In this piece, we describe the second part of our two-part reform agenda.

The goal of this second reform is to involve ordinary people in the production of news, information, and analysis, all of which are currently under the purview of ‘the media’ in its various guises. The various entities comprising the modern media sector are in a race to the bottom in which they barely even keep up the pretense of sharing information that educates people in order to help them make good decisions. Instead, media has become a means for the wealthy to manipulate decisions around voting, purchasing, lifestyle, health, and everything else. 

Newspapers, television, internet sites, and social media have become merely instruments of manipulation at the service of elite interests. We have seen Twitter, Google, LinkedIn, YouTube, Facebook, and other commercial information companies which started out a mere decade or two ago with promises of independence and open media, end up as our censors in the past two years, enthusiastically adding their contributions to the long and bleak history of totalitarian deletions.

How do we push against further misuse and towards the dissemination of high-quality information that genuinely helps ordinary people? Just as with citizen juries, the people themselves should assume responsibility for the production of information, in a system separate from commercial media. ‘Media by the people must happen in order to prevent ‘media for the people,’ which in turn becomes ‘manipulation of the people by elites.’

Our ‘media by the people’ reform proposal is also a means of arming us to fight on what has become the principal global battlefield: the battlefield of information. ‘We’ are constantly being manipulated not just by our own governments and homegrown interest groups, but also by foreign interest groups, including governments and international organisations that do not have our best interests at heart and may in fact wish us ill.

Just think of the WHO or the Chinese propagandists. These onslaughts are relentless. ‘We’ also wage media wars in other countries for our own benefit, so a savvy media army is required for both offense and defence. Whether we like it or not, we are now in a constant state of undeclared war in which words and images are the new tanks and artillery.

Functional communities in the US today, such as the Amish, the Mormons, and the Hasidic Jewish communities, produce their own media and this is one mechanism through which they have resisted the covid madness of the last 2.5 years. An example closer to home is the authors of Brownstone Institute, who have formed our own media community.

Yet, such communities and their media are small in reach compared to the mass media. Our concern is how to scale up community media production and put it to work for the great mass of the population that has not managed to escape the clutches of informational slavery: the many who today are well and truly divided and ruled.

We first sketch what we think would work, and then tackle the tricky issue of how it can be organized while maximizing personal autonomy.

Tactical plans

We have in mind a community media generation system, at either the national level or the level of states or provinces. Via participation in this system, ‘the people’ will learn how to produce media and will embed their personal expertise into the effort. By tapping the awesome reservoir of knowledge contained within the population, our envisaged system provides a channel through which everyone can benefit from the people’s own collective expertise. Much of this expertise is presently inaccessible due to elite media control.

The community media generation system can also raise the awareness of the population about manipulation techniques employed on both traditional and social media platforms. Training in what it takes to create information empowers the population to recognize and defend itself against malicious manipulation, and to be able to respond appropriately to our enemies.

Operational implementation: Communities in practice

What would this look like in practice? We envision a pilot of the basic operational outline below, initially in a single region or American state that democratically chooses to try it out, such as via a referendum.

On reaching a certain age (say, 20), every member of the population would decide whether to contribute to his or her community of choice via media generation or via a contribution of time to some area nominated as an important public good by that community. Some communities might nominate public park clean-ups, some road repair, some domestic violence support, some the building of public housing – any public good perceived by the community to be presently underserviced by public structures could be nominated. Such ‘social service,’ to which jury duty also belongs, is normal in many European countries and also in many schooling systems, such as the International Baccalaureate system in which all students engage in community service.

If a person opted to fulfill the community service requirement via media generation, he or she would first undertake a few months of general technical training. Each person would receive training in the production and sifting of information, manipulation techniques and historical examples of them, the practical side of running media channels, and so on.

Like training with actual weapons in earlier times, this universal training should be technical rather than oriented towards a single ‘truth’ that everyone is supposed to absorb. The goal should be to give people the basic toolkit of media combat: to understand how ‘truth’ is produced in the media via the dissemination of articles, videos, infotainment, surveys, and research reports.

Because vigilance must be perennial, citizens who initially undertook basic training would periodically spend short chunks of time (say, one month every five years) on the production and sifting through of news and information. This mirrors the system of military conscription in several countries, such as Switzerland, in which conscripts were required to use their guns every now and then to keep their skills fresh. Those who declined to participate in media generation would spend this month every five years contributing to some other public good nominated by their community of choice.

What do we think this would achieve?

Diversity as strength

In social matters, we do not believe in a thing called ‘the unbiased truth,’ and the sooner we can rid our societies of the fantasy that such a thing exists, the better. Rather, a person’s sense of reality comes from exposure to a large set of different perspectives, all biased from the point of view of other perspectives, but each sincerely championed. The different perspectives produced within our community production system staffed by citizens would therefore need to be available to the whole population.

We envision many media groups, reflecting the diversity of opinions, religions, and ideologies in society. For any recognized group mustering enough supporters at the time of a major election (say, 1% of the population as a whole or 10% of some region), a separate public media organization is set up and publicly funded for the duration of that election cycle (e.g., 4 years), with leadership appointed by citizen juries drawn from that part of the population.

That organization could accept newcomers, somewhat like a traditional militia system. People just coming of age could choose which group to serve in, and could serve locally, whether in media generation or in other public goods production.

A community could also set up its own media organization rather than have its ‘media arm’ initiated as a public entity, but to tap into the community system, its leadership must be chosen via a citizen jury, for otherwise, it could serve as a shell for private interests. (If its leadership was selected by a citizen jury drawn from people who have self-identified as subscribing to its values, then Brownstone Institute itself, under our system, would qualify to receive and help train a stream of young people.)

Information about current affairs, sports, culture, science, or any other topics deemed newsworthy would be produced by these groups via news, in-depth reports, and research papers. Rather than hoping vainly for an ultimate arbiter of the illusory ‘unbiased truth’ to save us from the constant manipulation attempts of elites, our system would rely on different information presented from different sincerely held viewpoints, each vying for more contributors and therefore each subject to competitive pressure.

Young people opting to serve a community of their choosing via media generation would complete their basic training and then try their hands for a few weeks at the practical side of news production and the sifting-through of information within that community. The sifting process would involve judging (through a voting or certification system, for example) the quality of the information brought to the attention of their media group on the topic of their expertise, whether that is knitting patterns, fashion, health, or foreign affairs.

In later years, returning contributors would contribute their expertise directly to news production as well as to the winnowing of information. Drawing on this diverse expertise, most media groups would probably begin covering all major news topics after a few years. The community media generation system would thereby tap into the combined expert knowledge of the entire population, as it moves through the lifecycle, to produce news and evaluate it for the benefit of the whole population, akin to a mass research-production and peer-review system.

Aggregating the opinions of its ‘members’ via information-sifting activities is a way for each community to draw on the weighted expertise within the part of the population it services to recognize what is good and what is garbage. The First Amendment would apply to the ecology of media groups. While individuals must choose the groups with which they serve, no barriers would bar anyone from consuming media from anywhere and thereby accessing a nearly infinite variety of ‘distilled truths.’

The next level

Once established, the system could be refined in various ways. For example, some people might do their community media service only by contributing their expert opinions on received media content, while others might only produce content or work in an administrative capacity. As with any production process, many roles must be filled, and people can slot into what they are good at. The option to bow out of media generation and into another form of public goods production at some point in life, or the reverse, would also be available.

Population-staffed media groups would constitute a standing media army of the people, by the people and for the people, useful both for domestic defence and foreign offense. A highly diversified information landscape would emerge in which some media group somewhere will have the expertise to recognise whether any particular story being floated elsewhere is nonsense, and has the platform to explain why.

The diverse interests and ideologies of the entire population would be constantly present and constantly voicing their perspectives, fuelling innovation and preventing a monoculture from emerging. Being comprised of public institutions essentially paid for by the people’s donation of time, the media landscape would not be for sale to the highest bidder as it is today.

As in other sectors like education and healthcare, in our system of public media production, there would still be room for private enterprise, e.g., commercial news companies and privately funded think tanks. Private media would be deliberately kept separate from the community system so that commercial incentives of the former would not infiltrate the latter.

Indeed, the community system itself is expected to act as a break from the nonsense dribbled out on the commercial side. With public media outfits constantly offering competition via producing and sifting through their own content rather than copying content generated for commercial purposes, privately run groups should no longer be able to get away with fantasyland stories that serve some deep pocket.

Large platforms could still operate and try their bogus ‘Fact Checking’ shtick, but the population would be wiser to such manipulation tricks. What seems likelier to us is that the information disseminated via the Facebook and Twitter of this world would start to reflect what is produced by the media battalions of the population.

The impact of such a new media landscape on elections should be massive. Elections are currently fought via mass media campaigns in which access to the belief formation process of populations is sold off to vested interests. Fix the media problem and elections should function better too.

One might object that community media will just add noise and thereby increase apathy by further overwhelming the population. This is unlikely, particularly during election times, because the community system will produce ‘honest noise’ generated by the population itself. The population will come to identify personally with the media landscape, having seen up close how media is produced and how their own part of the community has tried to make sense of the world. Come election time, we think voters will pay attention to what their – our – media, produced by people like themselves, has to say.

With more honest media on our channels, charlatans and lightweights will be uncovered, major topics will be aired, key trade-offs will become visible, and the electorate will be in a far better position to make informed decisions that further their own interests. Media directly by the people should also reduce the degree to which politicians will coalesce into aristocratic elites, because a diverse and critical media sector will give a much wider talent pool fair consideration, as inexpensive means of pushing talented contenders out of the race (fake stories, smear campaigns, scare tactics) simply cannot dominate the airwaves.


Since the proposals contained here and in our preceding piece are meant to overcome the political influence of Big Money in the institutions it has captured (media and the ‘deep state’), we should consider the likely countermoves of the elite to either prevent or pervert these reform proposals. 

In terms of prevention, the current elites should be expected to run fake scare campaigns if these proposals become real contenders. They will argue through various means that you can’t trust the people with either appointments or with the media. It’s a tough argument for them to run, but they’ll surely try it, with all the creativity and passion that can be bought.

More perversely, elites can scupper these moves by fiddling with the operational details in such a way that their interests are smuggled back in. Imagine insisting, for example, that private companies be the ones to organize the citizen juries or to identify the groups of citizens that will set up media organizations. Imagine claiming that it would be a matter of ‘national security that parts of the government bureaucracy must be exempt from appointment by a citizen jury, which would then quickly see every major post identified as a national security post. Imagine requiring that community media producers can be sued for defamation, which would allow Big Money to kill off unwanted community media activities via endless lawsuits. The mind reels.

These countermoves and more are all possible, and the only answer we have is that real political will is needed to implement these reforms somewhere and take the fight to the elite. The trump card for such reforms is that if they are set up and can be made to work in one country or state, then jealousy and competition become forceful allies in adopting them elsewhere without scuppering them in the details. This also goes for other successful democratic reforms: get them right in one country or state, and the rest are likely to follow.

Freedom and community responsibility

Good things are already being achieved without a system built on organized service and community responsibility. Some of those who recognize the ultimate futility of atomistic existence can decide voluntarily to work at forming a community, and Brownstone Institute itself is a shining example of what can be created from voluntary community-building efforts.

By contrast, people without the resources to effectively contribute to communities in a voluntary fashion face a similar fate as those who opt to go it alone. If their desperation does not lead them to criminal pursuits, such people either become charity cases or slaves to the superior forces of the organized and better-off. As inequality rises, this problem grows.

Our community media generation program has the flavor of a militia: a service program wherein citizens have responsibilities and cannot free-ride. If the system were entirely voluntary, everyone would have a strong incentive to let others do the work. That is precisely how we got into this situation in the first place: people floated along with what was ‘freely’ provided, not realizing that what was consumed was paid-for manipulation that, over time, shackled their minds.

Functional communities already set duties upon their members that cannot be shirked. In the US there are taxes, jury duty in the criminal justice system, army conscription in times of war, and several million pages of state and federal regulations with which the population is required to comply. None of these things is voluntary. In some countries, including much of Europe, the idea of compulsory social service has been around for decades, and both citizen juries and media production would easily fit into that existing system.

Yet the laudable mission of Brownstone Institute is to preserve individual freedom to the largest extent possible. In the words of BI’s founder, Jeffrey Tucker: ‘Its vision is of a society that places the highest value on the voluntary interaction of individuals and groups while minimizing the use of violence and force including that which is exercised by public or private authorities.’

We fundamentally agree with this intent.

Can the modern problem of media manipulation be addressed effectively without compelling some form of community-level responsibility?

One alternative to compulsion is to have public funding of these community structures, a leadership appointed by a citizen jury, and then jobs in community media generation offered randomly to members of the community and offered to the first who agrees to do a stint. This hides the compulsory aspect of the overall program, i.e., the taxes funding the program that are not optional to pay. It is true that high-quality people could be found to staff these community media roles if they are made sufficiently lucrative.

Yet, truly top thinkers and doers would be expected not to participate, as their time is worth the most, and this would then deprive the community as a whole of their knowledge unless they voluntarily opted to participate in private media production. With the private system thus able to attract the ablest people, today’s media dynamics would be likely to continue to some degree.

Another possibility would be to fold media duty (and community public goods production, if desired) into a package of duties citizens do for their community – a package that already includes taxation and jury duty. Substitution between those duties would then be allowed, so one could for example contribute more time to community media generation and pay lower taxes. This would make it more enticing for high-skilled people, facing large tax bills, to join in.

Such variants, also paid for by community funds, still draw on the community coercion implicit in taxation. The central conundrum that cannot be avoided in the writings on liberty is that functional communities come with communal responsibilities, particularly when communities are threatened by well-organized large corporations and institutions.

We live every day with many other community-level compulsions that we take for granted. We pay huge fractions of our income in taxes for ‘the community,’ we implicitly agree to community norms that significantly circumscribe our freedoms in areas from ‘decency’ to architecture, and we agree to sacrifice our freedom to choose certain actions when those actions would curtail the freedom of others – from murder to trespassing.

Yet proposals to reduce personal liberty allegedly ‘for the good of the community risk pushing us towards the well-trodden slippery slope that has most recently been rocketed down by covid-era criminals. Personal medical freedom, freedom of movement, and the freedom to show one’s face have all been thrown on the bonfire, justified by the gleaming golden wrapping of ‘community welfare.’ Is our proposal of community media generation tantamount to advocating for the destruction of personal rights in service to some intangible and unproven ‘public good?’

The question boils down to whether one thinks the solution is proportionate to the problem at hand. Is today’s assault on the quality of the information that reaches the population bad enough to warrant a community-organized response involving new responsibilities for citizens? Are we in an actual media war? We think the answer is a resounding ‘yes,’ and point to several recent Brownstone pieces (for example, herehere, and here) that indicate others in our community think so too. However, we accept that, to many people, the answer might be ‘no, it is not that bad, and we can manage without getting organized.’

To arrive at an answer, we advocate using the time-honored democratic way of deciding how much a community can demand of its citizens: via elections and referendums in which citizens decide how much they wish to bind themselves and other citizens to joint responsibilities. After all, one is not ‘free’ to ignore the outcome of elections and referenda.


Many of our current problems with politicians and captured deep-state bureaucrats would melt away if we could find the political will to fix the media system and the appointment system by returning direct choices in these areas to the people. Politicians would be more strongly kept to account, and the machinery of the state would be more oriented towards our collective interests.

To have a government ‘for the people’ in our modern world, both media and top appointments in the public sector must be produced ‘by the people.’ Adopting our proposals would create a fourth arm of democracy customized to combat the corrosive concentrations of power that characterize our modern age. In the long run, we contend that personally stepping up to the task of rejecting manipulation and abuse, and reclaiming our power, is the only way to reanimate Lincoln’s noble yet stalled and sputtering vision.

Paul Frijters, Senior Scholar at Brownstone Institute, is a Professor of Wellbeing Economics in the Department of Social Policy at the London School of Economics, UK. He specializes in applied micro-econometrics, including labor, happiness, and health economics Co-author of The Great Covid Panic.

Gigi Foster, Senior Scholar at Brownstone Institute, is a Professor of Economics at the University of New South Wales, Australia. Her research covers diverse fields including education, social influence, corruption, lab experiments, time use, behavioral economics, and Australian policy. She is co-author of The Great Covid Panic.

Michael Baker has a BA (Economics) from the University of Western Australia. He is an independent economic consultant and freelance journalist with a background in policy research.


This article was published by The Brownstone Institute and is reproduced with permission.