Re: Why is free speech/press a liberal or conservative issue?

This is the United States, the only country in the world with a
constitution that absolutely protects the liberties of freedom of speech
and of the press. If anyone jumps in to say that free speech isn't
absolute and quotes from Schenck, you will be shot.

Why can't we, as Americans, simply agree that it's a good thing? But
there sits qualified immunity lingering in the background. It never gets
addressed and it still manages to take away tools a plaintiff might use
to prevail in court in a practical sense to be made whole after his speech
was chilled.
 
Two cases have been in the news of late, and the alignment of political
allies and opponents is surreal.
 
ACLU, when it purely protected constitutional liberties, has been
criticized over the years for ignoring Second Amendment issues. This
time, its client was National Rifle Association. National Rifle
Association of America v. Vullo
 
New York state commissioner Maria Vullo, whose department regulates
banks and insurance companies, had long been at odds with NRA over their
efforts to find insurance for gun owners that would cover torts from
injury by firearm. In 2017, three insurance companies settled with the
department by paying fines and agreeing not to sell the insurance
coverage NRA endorsed as some of what NRA endorsed was in violation of
state law.
 
I vaguely remember this from seven years ago but don't recall what the
legal issue was.
 
After the massacre at Marjorie Stoneman Douglas high school in Parkland
Florida in 2018, NRA sued Vullo for coersion of banks and insurance
companies she regulated not to do business with NRA.
 
I'm a little unclear. They needed to file in federal court because of
the First Amendment issue, but was this so they could pursue te suit in
state court? Or is it entirely in federal court?
 
NRA's suit was allowed to proceed at district court. 2nd Circuit
reversed. Vullo's conduct wasn't chilling enough of NRA's speech to be
unconstitutional. 2nd Circuit ALSO addressed the issue that the underlying
law Vullo may have violated was unclear and she could be entitled to
qualified immunity.
 
At the US Supreme Court, NRA won on whether Villo's conduct had a
chilling effect on NRA's speech. Sotomayor wrote the opinion for a
unanimous court, with separate concurring opinions each from Gorsuch and
Jackson.
 
Here's where it's not entirely a clear-cut victory. Sotomayor said 2nd
Circuit misapplied the test (which I guess is four prong) of Bantam
Books v. Sullivan (1963). In Gorsuch's concurring opinion, he says that the
tests are guideposts and not absolute. If Gorsuch is right, then the
Supreme Court may still be giving guidance to lower courts that is too
fuzzy. Gorsuch said the key question is whether the plaintiff "has
plausibly alleged conduct that, viewed in context, could reasonably be
understood to convey a threat of adverse government action in order to
punish or suppress the plaintiff's speech."
 
I don't know what the four-pronged test was but Gorsuch appears to be
giving clear guidance to lower courts.
 
Jackson emphasized the order in which a court must apply reasoning.
First determine if government action was coercive. Then determine the
effect it had on speech. Then there are different doctrines to apply.
 
Oh dear gawd. If her opinion is used as guidance, then proving coercive
action will simply not be enough to prove that speech was chilled. She's
leaving the door open for a judge to make a finding of coercion but broad
discretion to apply other doctrine in considering whether speech was
chilled enough that it was suppressed. How the hell can a plaintiff win?
 
The Supreme Court, once again, did not take up the issue of qualified
immunity, leaving it to the Second Circuit on remand.
 
>
https://amylhowe.com/2024/05/30/supreme-court-rules-for-nra-in-first-amendment-dispute/
 
The other case lost at Fifth Circuit, entirely on qualified immunity
grounds. The Fifth Circuit is filled with activist conservative judges,
although as a technicality, I suppose applying qualified immunity isn't
necessarily judicial activism if there's no attempt to expand its
application. Within the Fifth Circuit are a few libertarian judges
appointed by Trump who were in the minority. In dissent,
 
"Priscilla Villarreal was put in jail for asking a police
officer a question," Judge James Ho, who was appointed to the
court by President Trump, wrote in a dissenting opinion. "If
that is not an obvious violation of the Constitution, it's hard
to imagine what would be."
 
Priscilla Villarreal, engaging in citizen journalism (because she has a
well-read blog and isn't a newspaper reporter), was arrested by police
for asking questions and reporting. Villarreal v. City of Laredo
 
She upset police by asking a source for more information on several
police matters.
 
In 2017, she was arrested and charged with a felony because she solicited
nonpublic official information, under a statute intended to thwart
corruption and kickbacks in public purchasing. Her petition to have
charges thrown out was granted. The state did not appeal, letting the
criminal case drop.
 
She then sued for a violation of her rights under the First and Fourth
amendments.
 
She's represented by libertarian Foundation for Individual Rights and
Expression.
 
At district court, her suit was dismissed on qualified immunity grounds.
A three-judge panel of the Fifth Circuit ruled in her favor, but when
the case was heard en banc by the Fifth Circuit, she lost again on
qualified immunity.
 
The Supreme Court hasn't yet granted cert but the case been appealed.
 
>
https://www.cjr.org/the_media_today/priscilla_villarreal_texas_first_amendment_lawsuit.php