FAN 153 (First Amendment News) POLICYed & Richard Epstein Bring Free-Speech Lessons to Digital Media
If you watch music videos or wild-animal adventures on YouTube, you may come upon a public-service announcement by, yes, Professor Richard Epstein. Well, sort of — he’s the brain power behind an animated and podcast series on free speech.
The series is titled Intellections: Activate Your Thinking and contains videos on a range of topics from rent control to health-care insurance to free speech and beyond. Intellections is part of POLICYed, which is funded by the Hoover Institution located on the campus of Stanford University.
Below are three animated videos for which Professor Epstein helped prepare the content:
- Should Speech that Offends be Prohibited? (transcript here)
- Who Can Restrict Free Speech? (transcript here)
- The Limits of Free Speech? (transcript here)
- The Libertarian: “Yale, Safe Spaces, And Free Speech” (Troy Senik interviewing Richard Epstein)
- Mob Censorship on Campus (Troy Senik interviewing Richard Epstein)
- The Libertarian: Free Speech on College Campuses (Troy Senik interviewing Richard Epstein)
Fourth Circuit: Wikimedia Has Standing to Challenge NSA Surveillance Program
The case is Wikimedia Foundation, et al v. National Security Agency, et al (4th Cir., May 23, 2017).
Plaintiffs Claims: “Plaintiffs—educational, legal, human rights, and media organizations—filed their first amended complaint wherein they ask for, among other things, a declaration that Upstream surveillance violates the First and Fourth Amendments, an order permanently enjoining the NSA from conducting Upstream surveillance, and an order directing the NSA ‘to purge all records of Plaintiffs’ communications in their possession obtained pursuant to Upstream surveillance.'”
Summary from the court: “The Wikimedia Foundation and eight other organizations appeal the dismissal of their complaint challenging Upstream surveillance, an electronic surveillance program operated by the National Security Agency (the “NSA”). The district court, relying on the discussion of speculative injury from Clapper v. Amnesty International USA (2013), held that the allegations in the complaint were too speculative to establish Article III standing. We conclude that Clapper’s analysis of speculative injury does not control this case, since the central allegations here are not speculative. Accordingly, as for Wikimedia, we vacate and remand because it makes allegations sufficient to survive a facial challenge to standing. As for the other Plaintiffs, we affirm because the complaint does not contain enough well-pleaded facts entitled to the presumption of truth to establish their standing.”
→ Judge Albert Diaz wrote the majority opinion, in which Judge Motz joined and in which Senior Judge Davis joined in part. Judge Davis wrote a separate opinion dissenting in part.
Majority Opinion: Article III Standing: “[T]he Wikimedia Allegation is that the NSA is intercepting, copying, and reviewing at least some of Wikimedia’s communications in the course of Upstream surveillance, ‘even if the NSA conducts Upstream surveillance on only a single [I]nternet backbone link.’ We conclude that this allegation satisfies the three elements of Article III standing.”
“. . . because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment.”
→ Judge Andre Davis, concurring in part and dissenting in part: “I agree with the holding that Wikimedia has standing to challenge the NSA’s surveillance of its internet communications. However, because I would find that the non-Wikimedia Plaintiffs also have standing, I respectfully dissent in part.”
→ Counsel for Appellants: Patrick Christopher Toomey, ACLU Foundation, New York
→ Counsel for Appellees: Catherine H. Dorsey, United States Department of Justice
→ Amicus brief: Wikimedia Foundation v. National Security Agency (4th Cir., 2016) (Chelsea J. Crawford, Joshua Treem, Margot E. Kaminski, Marc J. Blitz, A. Michael Froomkin, David Goldberger, James Grimmelmann, Lyrissa Barnett Lidsky, Neil M. Richards, & Katherine Jo Strandburg)
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