What the NYT Cancel Culture Editorial Got Wrong, And What It Got Right //

The New York Times’ Editorial Board did not offer such a thoughtful conversation in its piece “America Has a Free Speech Problem,” which discusses oft-invoked “cancel culture.” It’s vexingly unserious.

Benny Johnson @bennyjohnson
Elon Musk says he will vote Republican for FIRST time EVER after absolutely SAVAGING Joe Brandon in brutal roast

12:54 PM · May 17, 2022

Musk attacked the “left-wing bias” of Twitter, which Project Veritas confirmed with a damning video they just released. He said that it wasn’t going to be a “right-wing takeover” of Twitter, but a “moderate-wing takeover,” so that all could express themselves in the “digital town square. That’s what the right has been celebrating — just the idea of basic fairness, not being banned for political belief, not having information suppressed because it doesn’t serve the Democratic political narrative. //

But unlike some on the left, Musk even takes people coming back at him and attacking him as a part of the landscape, saying he shouldn’t be able to control everything; he wouldn’t want to be able to stop people from criticizing him. Now, that’s the right attitude to have, and it means he truly gets the concept of free speech that he’s fighting for — that even those who would go after him get to speak. If he can achieve that, then it truly is a “town square.” //

Elon Musk @elonmusk
20% fake/spam accounts, while 4 times what Twitter claims, could be much higher.

My offer was based on Twitter’s SEC filings being accurate.

Yesterday, Twitter’s CEO publicly refused to show proof of <5%.

This deal cannot move forward until he does.
3:32 AM · May 17, 2022

In fact, all of this worry and panic is at the heart of the left’s newfound love and redefinition of democracy.

For years, they have told us that corporations don’t have First Amendment rights. They have trashed the Citizens United case pretty thoroughly since the decision was handed down. But the moment a corporation goes fully woke in (a falsely framed) opposition to a law passed by Republicans, they suddenly deserve all those rights, and how dare the Republicans push back against it?! //

A major corporation goes woke and stands in major, vocal opposition to the Republican Party. Free speech comes with consequences. Whether or not a court will uphold those consequences remains to be seen, but it happened. And the left is crying foul.

Of course, if there were a Twitter account called “Cons of TikTok” that focused on the crazy things conservatives say on social media, the left would be apoplectic that someone would dare to expose them for simply posting what conservatives are out there saying. In fact, the left was apoplectic about one of their own getting exposed on social media: Hunter Biden. They shot the original story down over and over until after Joe Biden’s election, then waited two years to bring it up again in their own reporting to verify it.

What happened to it being a misinformation campaign by Russia? Incidentally, Lorenz suggested the same thing when she explained why she went after the Libs of TikTok account. You just never know — it could be the Russians. Gotta protect democracy from those crafty Russians. //

But that brings us to Elon Musk and Twitter. The left has lost their ever-loving minds over this deal. They truly believe it’s the end of democracy. I’m sorry, but if Twitter is the last great bastion of democracy, then democracy deserves to fail. It’s a cesspool disguised as a public square.

But, while a woke Twitter board and woke Twitter staffers can control the flow of information on the site, it’s fine. Democracy is saved. But the moment that you expose what they’re doing or saying on social media, the moment you are a threat to their public perception, you are deemed an enemy of the aforementioned democracy and need to be shut down. And that’s why they are terrified of Musk. He threatens their ability to control the narratives at any given moment //

But the left is losing their minds over the idea that more voices can be heard. The point of democracy is for the voice of the people to be heard so that everyone is informed from all sides and able to make an educated choice. That this idea is so outright rejected by the left that they have to shut down the voices that run counter to them, and that they have to lament their inability to do so in the future, well… it makes me think that perhaps “democracy” was never really the point at all.

And gee, who could have seen that coming?

Jordan Schachtel @ dossier.substack.com
@JordanSchachtel
If the libs are mad about Elon buying Twitter they should just make their own Twitter. It is a private company, after all.
8:22 AM · Apr 14, 2022 //

I don’t like that the exercise of the First Amendment is now at the mercy of billionaires, but this is the world we currently live in. Because so many on the right don’t have the stomach to stop corporatism (usually in league with the government) from crushing free speech, the only current move is to play the game. Musk is playing the game, and we should all be rooting for him to succeed.

The Emmett Till Antilynching Act may become a key piece in the arsenal for U.S. intelligence agencies’ war on free speech. //

Touted as an overdue (if duplicative) law that no one could disagree with, the Emmett Till Antilynching Act signed by President Biden last week includes a subtle provision that could boost the Biden administration’s war on wrongthink.

The bill sailed through the U.S. Senate and the House with ease. The tactful naming made the bill radioactive to oppose, which is why 422 congressmen voted in favor while only three opposed.

Rep. Thomas Massie, one of the three who voted against the bill, expressed a handful of concerns, including that there are a limited number of constitutionally specified federal crimes, that lynching is already criminalized, and that “Adding enhanced penalties for ‘hate’ [on top of existing criminal punishments] tends to endanger other liberties such as freedom of speech.”

He also highlighted another potential pitfall of the legislation: “The bill creates another federal crime of ‘conspiracy,’ which I’m concerned could be enforced overbroadly on people who are not perpetrators of a crime.” //

The bill amends the Hate Crimes Prevention Act, passed in 2009, which defines and criminalizes hate crimes. The minimum qualification is an attempt “to cause bodily injury” due to the victim’s race, sexual orientation, nationality, gender, religion, or disability.

Bodily injury can be defined as “physical pain” or “any other injury to the body, no matter how temporary.” Sensibly, the 2009 law requires an attempt at violence to be made, which is a crime itself regardless of prejudiced motives. The new “antilynching” law takes this a step further by criminalizing “conspiracy” to commit certain hate crimes. //

So as of last Tuesday, it is illegal to simply “agree” to participate in an act if it falls under the categories highlighted above. One can imagine dark political humor venturing into these categories (a comment such as “I hate so-and-so so much I could kill him,” for example) being interpreted as “conspiring to lynch.”

The key issue here is that intent should not be the sole subject of a court case. The purpose of courts is for a neutral arbiter to determine whether someone’s rights were violated during an encounter between two parties. Conspiracy, if no action is taken in pursuit of it, involves only one party: the conspirators. Therefore, it alone constitutes no crime as it couldn’t have possibly violated someone else’s rights.

With this new law, the U.S. government has further expanded into the realm of policing thought crimes.

“The Gibson family appreciates the Court of Appeals’ thorough and thoughtful analysis which rightly rejected all of Oberlin College’s and Dean Raimondo’s challenges on appeal.”

The Ohio 9th District Court of Appeals has just issued a decision in the Gibson’s Bakery v. Oberlin College case.

For those of you new to the case, Gibson’s Bakery was a 5th generation family business in Oberlin, Ohio, near the Oberlin College campus. It served baked goods to the public and also to the student dining service, as well as operating a general convenience store. As with many other small businesses, student shoplifting was epidemic, as we covered, Student journalist: Shoplifting at Gibson’s Bakery was part of Oberlin College’s “Culture of Theft”

A store clerk, a member of the Gibson family, caught an Oberlin black student shoplifting, a scuffle ensued that was joined by two other Oberlin black students. When the police arrived, they arrested the students who eventually pleaded guilty. But before that, the college officials and students accused the bakery of racial profiling, called a boycott, suspended Gibson’s business with the college, and organized protests outside the bakery.

At the protests, a flyer was handed out, according to witnesses who testified at trial, by Dean of Students Meredith Raimondo, who also handed out stacks of flyers for others to distribute. The flyers accused the Gibsons of a long history of racial profiling, including in the incident with these shoplifters. The Gibsons disputed that allegation and that they did anything wrong in this incident, and requested a public apology from the college in order to repair the reputational damage, but the college refused. (To this day it never has apologized.) //

Based on the actions of college officials in conveying and promoting the defamatory accusations, a lawsuit was filed, resulting in massive verdicts for the owners of the bakery, David Gibson and his father, Allyn Gibson. Legal Insurrection was the only national media outlet to have someone in the courtroom reporting, including when the verdicts came down:
Closing Argument: “When a powerful institution says you are racist, you are doomed”
VERDICT: Jury awards Gibson’s Bakery $11 million against Oberlin College
Oberlin College hit with maximum PUNITIVE DAMAGES (capped at $22 million by law) in Gibson’s Bakery case
Punitive damage verdict against Oberlin College “was like a seismic wave moving quickly through the courtroom”

People like Rogan — and me — cannot afford the mental bandwidth needed to logic out every possible response to every word we utter and then plan our speech according to those possibilities. If we can’t speak from the heart, and our own curiosity, we can’t encourage anyone to respond from the heart. Even the pouncing progressives would agree that being “emotionally honest” about something is a huge part of any meaningful discussion. They’ve been putting feelings over facts for years now. By their own measure, audiences cannot engage their feelings on an issue if they’re not being met with the honest feelings of the personality opining on the issue. Chilling the speech of the speakers chills all speech.

That is the goal, of course. To squash discussion and replace it with pre-formed ideas, given to you by the intellectual elite and their less-intellectual culture minions. You can’t respond to a bad idea you’re not allowed to hear in the first place. They don’t want our responses to their bad ideas.

That’s what makes places like RedState special…and guys like Rogan special. We do want your responses to our ideas. We do want emotion and rage and applause and laughter. We welcome the hate clicks as much as the love clicks. They all pay the same, but even better, they serve a function that we’re all on board with on the non-progressive political spectrum. They foster discussion. In this business, honesty makes for quality content.

Have you ever wondered why the production value of your tv and movies seems to have dropped lately? It’s because the number of calculations executives and their creative partners are required to make these days about possible responses, boycotts, hurt feelings, and social media backlash forces them to think more like machines and less like thinking, feeling human beings. //

Chilling speech on the world wide web, particularly in this nation, is effectively dumbing down entertainment quality. Worse than that, it’s making machines out of humans, at a time when we need much more humanity in this world.

Paivi Rasanen spoke to The Federalist about her free speech case that has huge implications for Christians across the West. //

“I was happy to have the possibility to also tell the gospel—the solution to the problem of sin—in front of the court and in front of the media,” she said. Speaking about the first day of her trial, which occurred in January, Rasanen said, “When so many people were praying for the day, God also answered the prayers. It was quite a hard day, but I thought it was a privilege to stand for the freedom of speech and the freedom of religion and stand for the truth of the Bible.” //

“I would characterize the day as a modern-day Inquisition or heresy trial,” Coleman said in a phone interview from Helsinki last month after the trial’s first day. “And the heresy was that Paivi and Bishop Juhana were on trial against the new sexual orthodoxy of the day.” //

The deeply theological nature of this case has been clear throughout, Rasanen said, putting courts in a “very odd situation” of litigating permissible religious views inside a constitutional democracy that claims to guarantee the freedoms of speech and religion. //

The prosecutor also charged Rasanen falsely, she said, with believing that homosexuals are not created by God.

“According to her [the prosecutor], you cannot make a distinction between a person’s identity and his or her actions,” Rasanen said. “So she said if you condemn the act, you also condemn the human being and say they are inferior.”

On the contrary, Christians believe that all humans are sinners and have equally ineffable value to God. They believe humans’ worth can absolutely be separated from their actions. Otherwise, humans stand forever condemned for everything they’ve ever done wrong.

Christianity teaches that God is willing to forgive all sins. All that’s required is to confess those sins. This also means Christians consider homosexuals and transsexuals as they do everyone: equally precious, forgiven, welcomed, and loved by God.

“emails between New York Times editors reveal they ignored fact checkers and admitted to ‘sneaking a link’ between Sarah Palin and the shooting of Rep. Gabby Giffords” //

deltaxray468 | February 6, 2022 at 12:58 am
I think Palin’s goal is go beyond proving “actual malice.” Her goal is to dismantle Sullivan.

Fraud isn’t protected speech. The NYT’s not only libeled Palin, it defrauded the public. Sullivan’s standard allows the news the ability to create fraudulent narratives with very little risk.

while reading a recent post by whistleblower Edward Snowden about Julian Assange of WikiLeaks infamy, titled Everything Going Great.

After a lengthy and somewhat rambling preamble regarding bad faith’s meaning, Snowden gets to his point, namely that the U.S. attempt to extradite Assange is a direct attack on freedom of the press.

I agree with my friends (and lawyers) at the ACLU: the U.S. government’s indictment of Assange amounts to the criminalization of investigative journalism. And I agree with myriad friends (and lawyers) throughout the world that at the core of this criminalization is a cruel and unusual paradox: namely, the fact that many of the activities that the U.S. government would rather hush up are perpetrated in foreign countries, whose journalism will now be answerable to the U.S. court system. And the precedent established here will be exploited by all manner of authoritarian leaders across the globe. What will be the State Department’s response when the Republic of Iran demands the extradition of New York Times reporters for violating Iran’s secrecy laws? How will the United Kingdom respond when Viktor Orban or Recep Erdogan seeks the extradition of Guardian reporters? The point is not that the U.S. or U.K. would ever comply with those demands — of course they wouldn’t — but that they would lack any principled basis for their refusals. //

If we had honest media dedicated to the truth and not the narrative, it would be rallying around Julian Assange. This is not the case. Instead of being infected with the omicron variant of COVID, the media is infected with omertà. When the worm turns against the worms, the cost will be high. In ignoring Julian Assange’s plight because the Democrats were the ones embarrassed by his actions, the media sets itself up to have no one to blame but itself when the government comes down hard at the release of classified (read: embarrassing) material.

Jered Ede (Project Veritas Chief Legal Officer)
@Jtaylorede
·
Dec 24, 2021
BREAKING: NY Supreme Court GRANTS Veritas’ Motion; ORDERS New York Times to destroy attorney-client memos “irregular[ly]” obtained from PV; REJECTS Times’ cries of “prior restraint” while citing case about “‘Hit and run’ journalism”

How did NYT obtain the memos? Poss. "improper means" : "The Times incredibly admitted that here 'no apparent bribery was used to obtain the memoranda.' ... [PV] has met its burden of showing [the memos] were obtained by irregular means, if not both irregular and improper means."

But the memos were public concern because it involved PV, no? No: "[S]ome things are not fodder for public consideration and consumption. These memoranda ... are only between an attorney and a client, and it does not matter one bit who the attorney and client are."

The Times/corp. media argued prior restraint. Wrong. "The Times is perfectly free to investigate, ... publish, opine, expose or ignore whatever aspects of Project Veritas its editors in their sole discretion deem newsworthy, without utilizing [PV's a/c] privileged memoranda."

"[T]he court's protective order does not act as an impermissible prior restraint on the Times. As important as the First Amendment's protection against prior restraints is, on the present facts, the erosion of the attorney-client privilege is a far more imminent concern."
Jered Ede (Project Veritas Chief Legal Officer)
@Jtaylorede
Of the Times' journalism, the court noted: ... "''Hit and run' journalism is no more protected under the First Amendment, than speeding on a crowded sidewalk is permitted under a valid driver's license.'" #ouch.

"[T]his is no defeat for the First Amendment," wrote the Court. "It would indeed be a Pyrrhic victory...if the Amendment's safeguarding of the media... were confused with the attempt to constitutionalize the publication of the private, privileged communication ...presented here."

A hard-fought victory by the indefatigable @libbylocke of @ClareLockeLLP, who frequently reminds the NYT that, contrary to internal belief, they are not the most powerful entity in the State of New York.

Yesterday, the US Supreme Court heard a case that could profoundly affect the future of education in the United States.

Maine has about 180,000 students enrolled in grades K-12 distributed over 260 school districts. Because of the low population density in some districts, high school students must either attend school in another district or go to private school. Maine has a tuition assistance program that subsidizes tuition for students living in a school district that does not operate a secondary school to assist in this.

Until 1980, the student could use that assistance to attend any school.

the state barred sectarian options after the Maine Attorney General, in 1980, opined that including them as a choice in the program violated the federal Establishment Clause. Me. Op. Att’y Gen. No. 80-2 (1980) (J.A. 35-68). The legislature codified this bar in a statute providing that a student’s chosen school must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” 1981 Me. Laws 2177 (codified at Me. Stat. tit. 20-A, § 2951(2)).

Eventually, some parents sued, and the case made its way to the Supreme Court as Carson v. Makin. The parents claim that instead of bringing Maine into compliance with the anti-establishment clause of the First Amendment, it actually goes the other way and violates the First Amendment’s right to free exercise of religion.

In sum, despite their pro-speech intent, anti-SLAPP laws are typically used by media conglomerates and Big Tech companies to punish individuals who dare to fight back against being libeled or censored. These laws are not narrowly targeted to protect speech, but sloppily drafted so as to place insurmountable burdens on ordinary citizens seeking to fight back against powerful entities.

Libel and deplatforming victims are frequently unemployable and incapable of raising money due to censorship — recall that Rittenhouse was thrown off GoFundMe when he tried to raise money for his legal fees. The threat that a libel victim will have to pay the legal fees of the wealthy corporations that have slandered them is often enough to prevent the victim from bringing suit in the first place.

Overturning Sullivan would be quite difficult, requiring a Supreme Court ruling or constitutional amendment. By contrast, there is nothing stopping states from repealing their anti-SLAPP laws and allowing ordinary citizens a level playing field on which to fight back against Big Media and tech companies in court.

Judicial Watch announced today that it filed a federal civil rights lawsuit on behalf of Kari MacRae, a Massachusetts high school teacher who was fired in retaliation for posts on social media objecting to the inclusion of critical race theory in schools (MacRae vs. Matthew Mattos and Matthew A. Ferron (No. 1:21-cv-11917).

The lawsuit, which was filed in the United States District Court for the District of Massachusetts, asks for damages against Hanover School Superintendent Matthew Ferron and Hanover High School Principal Matthew Mattos for retaliating against MacRae, a math/business teacher at Hanover High School, for exercising her First Amendment rights.

The lawsuit details that MacRae, who was hired as a Hanover High School teacher on August 31, 2021, was fired over several TikTok video posts that were made months prior to her hiring at the school. MacRae, who in May of 2021 was elected to the Bourne School Committee, said she made the posts in her personal capacity as a citizen and candidate for public office…

Most speech, hateful or not, is protected by the Constitution. To pretend otherwise is foolhardy.Most speech, hateful or not, is protected by the Constitution. To pretend otherwise is foolhardy. //

What speech should be protected by the First Amendment is open to debate. Americans can, and should, argue about what the law ought to be. That’s what free people do. But while we’re all entitled to our own opinions, we’re not entitled to our own facts, even in 2019. In fact, the First Amendment is broad, robust, aggressively and consistently protected by the Supreme Court, and not subject to the many exceptions and qualifications that commentators seek to graft upon it. The majority of contemptible, bigoted speech is protected. //

American courts don’t balance the benefits and harms of speech to decide whether it is protected—they look to whether that speech falls into the First Amendment exceptions noted above. As the Supreme Court recently explained, the “First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

For the first time since Thomas Jefferson, Speaker Nancy Pelosi invited nonsensical and irrelevant ad hominem attacks to be both spoken on the floor of the House and to be entered into the permanent congressional record. Sadly, her invitation was eagerly accepted. Freshman Rep. Cori Bush, D-Mo., called President Trump “a white supremacist president,” and “white supremacist-in-chief,” while Rep. Rashida Tlaib, D-Mich., called him “racist-in-chief.” //

“Fighting words” are ad hominem. They attack the person without addressing the argument. //

Oral arguments began on Feb. 22, 1971, with Chief Justice Warren Burger instructing Cohen’s lawyer, Melville Nimmer, that the offensive word in question need not be uttered in the hallowed halls of the Supreme Court. Seconds later, in his opening argument, Nimmer said, “What this young man did was to walk through a courthouse corridor wearing a jacket on which were inscribed the words, ‘F— the Draft.’” Presumably, this was the first time in history that such a vile word was uttered in that setting.

For his open defiance of the chief justice, Nimmer was not cited for contempt of court. Rather, he walked away with a 5-4 ruling that overturned 180 years of First Amendment jurisprudence. As Justice John Harlan famously wrote for the majority: “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.” //

Were this the only sad consequence of Cohen v. California, it would be bad enough. But things have devolved further still. In 1977, Cohen was cited as a reason to permit Nazis to chant Jewish insults and carry the swastika through Skokie, Illinois — a community of Holocaust survivors.

In 1978, the Federal Communications Commission lost its ability to keep obscenities off the air; and in 1986 public schools lost their authority to prevent students from screaming “F— you,” in the halls of education. In 1992 the court unanimously struck down long-standing prohibitions against the Ku Klux Klan’s cross-burning threats.

Beginning in the mid-’90s, the advent of so-called “hate speech laws” closed the circle. Now certain ideas cannot be expressed without public penalty. Florists, bakers, clerks, and printers have been devastated by lost business, government fines, and legal costs just for expressing the idea that the words “male” and “female” are not interchangeable. Meanwhile, the law permits them to be assailed with nonsensical words like, “hater,” “bigot,” and “Nazi.”

Such words do not serve as a “step to the truth.” Rather, they are meant to insult and incite economic and social violence against their targets.

It’s been a half-century since the Warren court poisoned popular discourse, there yet remain public places that prohibit the ad hominem and the obscene. For instance, rules in the U.S. House of Representatives dating back to Thomas Jefferson require members to “Avoid characterizing another Member’s personal intent or motives and discussing personalities,” and to “Refrain from speaking disrespectfully of the Speaker, other Members, the President or Vice President.” //

Unfortunately, however, those very rules are now under assault. The House Committee on Rules met on Jan. 12, 2021, and adopted an ad hoc rule change providing “that the prohibition against personality in debate with respect to references to the President shall not apply during consideration of H. Res. 21 or any special order of business providing for the consideration of H. Res. 24.”

Thus, rules against ad hominem attacks on President Donald J. Trump were suspended during floor debates on Vice President Pence’s invocation of the 25 Amendment (H. Res. 21), and the motion to impeach President Trump (H. Res. 24).

Thanks to Pelosi, the language of the school-yard bully has now entered our highest deliberative body. As Cohen led to the cancel culture in the public square, so name-calling on the House floor led immediately to the suppression of unfavored ideas in Congress. Within hours, eight senators and 139 representatives who had followed congressional decorum in calling for an investigation of election fraud suddenly found themselves threatened with censure and expulsion merely for expressing the idea.

In 1942, Justice Murphy asserted, as a matter of timeless common sense, that the First Amendment protects the expression and defense of every idea as a valuable step towards discovering the truth. Now, only 80 years later, the case is reversed. Nonsensical, vile, and intentionally injurious words are fully protected speech while the expression of certain ideas — even in the kindest possible terms — is strictly forbidden. Instead of protecting true free speech, we’ve crushed the speech that matters most: the articulation and testing of the truth.

The rhetoric around the First Amendment tends to be incredibly misinformed. On one side are the First Amendment absolutists who act like proscribing any speech—even hate speech, or even when the prohibition is made by a private company—is tantamount to an assault on the very concept of freedom and liberty. Usually, these absolutists are screaming at people on the other side who haven’t actually thought through how wide-reaching government restrictions on speech—“Ban Fox News!” “Ban people who lie!”—would lead to an utter dystopia.

Invariably someone shows up to say, “You can’t shout ‘Fire!’ in a crowded theater” (which is not true—you absolutely can shout fire in a crowded theater, so stop quoting this line), and everybody turns off the television less informed than when they started.

The reality of our First Amendment freedoms is altogether more boring, and more nuanced. The government does and must have the authority to regulate speech in all kinds of situations. But that authority is and should be treated with deep skepticism. The government should always be challenged to come up with the least restrictive means to achieve its legitimate ends. But when courts adhere to that principle, when judges issue practical rulings that balance the right to free speech against the government’s legitimate interest in restricting certain kinds of speech, the cases don’t make the news.

That’s why the decision at the end of the Supreme Court’s term in Mahanoy Area School District v. B.L.—better known as the “cheerleader case”—garnered comparatively little attention, even though the underlying controversy was widely publicized. At issue was a Snapchat post from Brandi Levy. As a first-year high school student, Levy failed to make the varsity cheerleading team. Disappointed, she posted a picture of herself with the caption “Fuck school fuck softball fuck cheer fuck everything.”

Students who made the squad saw Levy’s post and showed it to the cheerleading coach. The coach then suspended Levy from the junior varsity team. Levy sued the school. //

It’s not hard to imagine an off-campus Snapchat post that could require in-school discipline. Most people would probably agree, for instance, that the school could punish Levy if she had joked about doing violence to her coaches, even if the message did not rise to the level of “true threat” required to get law enforcement involved. Other, more subtle forms of intimidation also might warrant punishment from the school. And yet Levy’s particular post was clearly not that, and schools should generally be prohibited from policing students after hours. That is the job of their parents, not the state.

The current federal standard for school restrictions on speech was set in Tinker v. Des Moines, in 1969. The Supreme Court ruled that students do not lose First Amendment protections simply by showing up to school, but they do not enjoy absolute freedom of speech either; schools can punish students whose speech “materially and substantially” interferes with school business. In the years since, Tinker has been extended to things like field trips, but it has never been applied to fully off-campus speech like Levy’s. And it has never contended with the age of social media.

In Mahanoy, the Supreme Court, by a vote of 8-1, ruled to protect Levy—and declined to extend the Tinker standard all the way off campus. In his majority opinion, Justice Stephen Breyer issued a limited and exceedingly pragmatic ruling that made clear that Levy’s conduct is constitutionally protected and sent a signal to schools that their authority to police off-campus speech is much more limited than their authority to police speech within their buildings. //

Breyer disagreed. Instead, he listed a number of instances in which a school may have cause to regulate off-campus speech, including when a student uses social media to bully or harass other students.

When host Maria Bartiromo asked if there was no way anyone else could have seen the emails, Carlson said the only other person was his executive producer.

He added that just before his show aired on Tuesday, he got a call from a reporter who read the email back to him.

“There is no possibility that anyone else could have known. And then again yesterday I get a call right before air, like 7:15, from a journalist I know and like, not many left, but I do like this person. He repeated back to me what’s in my email, he got it because the NSA leaked it, so, yes, entirely real,” Carlson said.

The NSA declined to comment. //

Jonathan Swan
@jonathanvswan
New: Tucker Carlson was talking to U.S.-based Kremlin intermediaries about setting up an interview with Putin shortly before he accused the NSA of spying on him. U.S. gov't officials learned of this outreach ... but that's where details get cloudy.

Tucker Carlson sought interview with Putin at time of NSA spying claim
axios.com //

None of these scenarios mesh with what Carlson has alleged. A legit unmasking would not result in his emails being offered to another reporter.

As RedState reported earlier, Tucker Carlson’s previous claims of being spied on and having his communications leaked by the NSA were true. Axios reported on the leaked emails today, which contained nothing but Carlson attempting to set up an interview with Russia’s Vladamir Putin. Of note is that NBC News interviewed Putin just a few weeks ago and there is nothing untoward about a news host seeking an interview with an adversarial figure. //

That means a lot of people who originally doubted the story look like clowns tonight (and I’ll have a separate piece on that later), and Carlson continued his victory lap by pointing out the obvious motivation of the leak — to try to paint him as a Russia agent.

It’s a go-to accusation that the left, facilitated by the left-wing hacks in our intelligence community, just can’t let go of. Of course, Carlson was simply trying to do what NBC News had done prior — land a major interview and make news. But by leaking his emails, the intel community wanted to make it seem as if Carlson had done something wrong and sinister. It’s an insidious, completely unAmerican game.

Carlson then got to the real heart of the issue — that laws were broken here. The NSA is required to keep the identity of Americans caught up in surveillance of foreign figures secret. Only via an unmasking request could his name have been revealed. After that request was clearly made, likely by someone in the Biden administration and having to have been signed off by the NSA head, they then took that information and leaked it to try to harm Carlson and Fox News.

Justice Barrett’s concurring opinion — joined by Justices Kavanaugh and Breyer in a show of “solidarity” from both sides of the Court — comes down to the issue that if Smith is overturned, 30 years of federal court cases upholding laws and ordinances “incidentally burdening” religious practices will all be up for being re-litigated. Federal courts will be inundated with “religious freedom” challenges, with the Court divided on how new cases seeking to re-litigate settled issues should be resolved. She preferred to put off the question of what to do about Smith to another day.

But conservatives recognize that this is the front-line of the cultural battle being fought in the courts and at the ballot box. This is a clash between a fundamental right provided for by the Founders, and “civil rights” being extended by political processes to various groups who claim an entitlement to be treated in ways that don’t offend them.

I think we should call it what it is — the right to be free from conduct by others that makes me feel bad about myself. I don’t remember studying that in Con Law, but maybe I was sick that day. //

In the same way that the cultural battle over Roe was guaranteed to continue as a result of the “wheeling-and-dealing” with votes behind the scenes in Casey, it appears that the cultural battle over religious liberty grounds will continue through “wheeling and dealing” behind the scenes over Smith. It will only end when Kavanaugh or Barrett takes a stand and decide the question at the center of the debate.