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Senators Klobuchar And Lujan Propose ‘Health Misinformation Act of 2021’ … It is HOT garbage…

(Illustration: Lex Villena; Martin Lisner) VIA Reason.com, certainly covers the heart of the issue.

In a grandstanding attempt to combat ‘Public Misinformation’, the genius team of Klobuchar and Lujan, Senators for… something, have put together a bill that would hold social media companies for anyone on their platforms who posts ‘misinformation’ during a declared public health emergency.

To understand how bad of an idea this is, remember that the CDC flip flopped on mask mandates and efficacy. Therefore both mask-yes and mask-no would qualify at one point or another as ‘Public Misinformation’ and the entity that would have been liable would have been the Social Media Company hosting the post. If someone reposted and old post contrasting it to a new post, it would be the fault of the social media company for whichever one was currently false.

Asinine? Yep.

Reporting from TechDirt,

from the stop-this-nonsense dept

On Wednesday, Senator Amy Klobuchar promised to introduce a bill that would somehow hold Facebook liable for medical misinformation. As we wrote in the post about her claims, that doesn’t explain how there would be any legitimate underlying cause of action, because nearly all such medical misinformation is still protected by the 1st Amendment.

Yesterday Klobuchar, along with Senator Ben Ray Lujan, introduced their bill: the Health Misinformation Act of 2021. To say it’s unconstitutional would be giving it too much credit. To say that it wouldn’t even remotely do anything useful would be to state the obvious. To say that it’s a grandstanding piece of absolute nonsense would be about the best thing I could think of. It’s garbage in so many ways.

The actual functioning of the bill would be to add an exception to Section 230’s protections, saying that they no longer apply — if it’s in the midst of a health crisis — for medical misinformation. It would add the following “EXCEPTION” to Section 230:

“A provider of an interactive computer service shall be treated as the publisher or speaker of health misinformation that is created or developed through the interactive computer service during a covered period if the provider promotes that health misinformation through an algorithm used by the provider (or similar software functionality), except that this subparagraph shall not apply if that promotion occurs through a neutral mechanism, such as through the use of chronological functionality”

And, this law would only be in effect during a public health emergency, as declared by the Secretary of Health & Human Services. The law would also require the Secretary of Health & Human Services to “issue guidance regarding what constitutes health misinformation.” That last bit should make you grimace, because that’s a hugely problematic thing for the 1st Amendment. Having the government define what is and what is not “health misinformation” cannot possibly pass 1st Amendment scrutiny by a court.

It’s also incredibly dumb. First of all, in a “public health emergency” like we’re currently going through, what is and what is not “health misinformation” is not always clear, and involves constantly changing information. Remember, we went through this with the whole “wearing masks” thing at the very beginning of the pandemic. Then, you had the WHO and CDC advise against wearing masks. Under this bill, you could have had the HHS boss claim that anyone promoting mask wearing was engaging in health misinformation… and somehow try to make Facebook liable for it. Would that have been a good idea?

Read on [here] from the article source

Portland Police Protest Response Found “Appropriate” and “Restrained” in Summer 2020

The protests surrounding the now convicted murder of George Floyd in Minnesota sparked responses across the nation. Those responses from law enforcement varied widely from the hands off approach in Seattle that resulted in the CHAZ (Capitol Hill Autonomous Zone), to far more ‘no nonsense’ response like those in Detroit, Michigan where the DPD Chief essentially left it as, ‘you can be angry, you can be mad, you can shout it and scream it and wave your signs and you should be heard, but mess around and find out’.
Portland Maine released their independently conducted review of the police response to the Floyd protests and riots.

News Center Maine reporting,

Portland police held a press conference to answer questions about the findings of their independent review of their response to a Black Lives Matter protest.

PORTLAND, Maine — The outside firm the city hired to investigate to Portland Police Department’s response to a Black Lives Matter protest in June 2020 has completed its report, and concluded the response was “appropriate,” and even “restrained.”

Clifton Larson Allen LLP was hired by the city in February 2021 to investigate the June 1-2 protest that was held in the wake of George Floyd’s death. The protest ended in 23 arrests and damage to businesses in downtown Portland. The Cumberland County District Attorney later said the charges against the people arrested would not be pursued, citing insufficient evidence. 

The protest, which was held just one week after George Floyd, 46, died in Minneapolis as a police officer knelt on his neck despite his cries that he couldn’t breathe, started peacefully and became increasingly tense as night fell and police clashed with protesters in the streets.

Police in riot gear fired pepper spray into the crowd, and reports say officers advanced up Franklin Street after a cargo truck drove through the crowd. Protesters pushed back, and things divulged, at times, into chaos.

The firm found, however, that in many cases, officers showed restraint as events from the largely peaceful protest turned more hectic.  

“Even under the best of circumstances with advance scheduling and coordination, policing protests can be difficult,” the firm said in its report.

The firm noted the protest was made up of a mix of peaceful demonstrators and outliers who clashed with police, throwing water bottles towards officers and inciting police reaction. 

Police issued “orders to disperse” for more than an hour due to “riotous” conditions and then used pepper spray in pepper ball and aerosol canisters on protesters throwing objects at police. The outliers were met with calls from demonstrators attempting to keep the protest peaceful to stop antagonizing police.

It was this “second tier of demonstration” that officers’ actions were focused on, the firm concluded.

Compared to police departments’ response to similar protests across the country, the firm said Portland’s “differs greatly, in a positive manner.”

More at the link.

It is likely we see more of these reports emerge from various departments nationwide, as police in general tend to do their jobs with a professional decorum and actually keep the peace. That isn’t true in all cases, however it is the norm that police forces strive for. With that, and with independent review, the nation can continue to identify the real friction points in community policing policies as opposed to reactionary decisions made in response to high profile events.

Solving real problems instead of political capital spend sprees.

Read on [here] from the article source

MAGACOIN Crypto Launch Data Breach


TDS knows no digital bounds. Even if the 45th President is not involved in any way, showing support for him puts a massive target upon your proverbial back when it comes to hackers and trolls wanting to get in and mess with digital infrastructure.

CoinTelegraph is reporting,

The launch of a cryptocurrency developed by Donald Trump supporters last week has been marred by a website data breach.

According to The Guardian, user information including IP addresses, email addresses and passwords were accessed via a poor security configuration on the project’s website.

The crypto is dubbed MAGACOIN after former President Trump’s “Make America Great Again” slogan. The project’s website claims that MAGACOIN was “created by America First Conservatives out of frustration with “Losing the Election” (the site has it in quotes) and “a desire to fight back by supporting MAGA candidates in 2022 and beyond” with profits from the coin.

An unnamed and self-described hacktivist told The Guardian that more than 1,000 people have signed up, including Republican figures and conservative media personalities, with the majority of hodlers having around 100 MAGACOIN.

The project’s creator, used car salesman Marc Zelinka, reportedly holds 2 million MAGACOIN, along with Reilly O’Neal, a pro-Trump consultant who is now operating the project.

Roughly 75 million MAGACOIN were created to represent the 75 million voters who were supposedly “disenfranchised on November 3rd, 2020” — the day of the U.S. election results in which Trump lost to Democrat Joe Biden. Trump supporters have since asserted without evidence that the election was rigged and have lost numerous court cases challenging the results.

The project is offering 100 MAGACOIN to anyone that signs up, and the hacktivist has claimed that the majority of users have that amount.

Some of the larger accounts are reportedly the result of marketing campaigns from the project, offering 1,000 MAGACOIN to media personalities, radio hosts, and grassroots groups in exchange for promoting the cryptocurrency.

An account holding 1,500 coins is associated with an email address of John Rush, the host of “Rush to Reason” on Denver’s KXL conservative talk station, along with a similar amount associated with Colorado Republican activist Evan Underwood, who is also the chair of the Colorado Federation of College Republicans.

Rush reportedly had the creator of the project, Marc Zelinka, on the show in a recent episode however Zelinka told the Guardian that “I don’t control it anymore” after he handed the reins over to prominent North Carolina-based political operative, Reilly O’Neal.

A super political action community (SuperPAC) is also tied to the project and called “MAGACOIN VICTORY FUND”, which has received a 10 million MAGACOIN donation to support “MAGA candidates across the country who will fight for individual rights, religious liberty, protecting the unborn, the 2nd amendment, freedom of speech and the entire America First Agenda.”

The SuperPAC’s mailing address is reportedly located at the same place several other firms and political groups operated by O’Neal.

Despite MAGACOIN being a pro-Trump project, it is yet to be seen what the former president thinks of the project as he is known for being anti-crypto. Trump stated last month that “Bitcoin, it just seems like a scam […] I don’t like it because it is another currency competing against the dollar.”

The data breach wasn’t sweeping because the user base is currently low, but it is more proof that President Trump is a lightning rod and those who support the outspoken, gregarious, and larger than life Trump will draw extra levels of digital ire because if nothing else it will bring them attention contrasting the attention Trump draws.

So, should you get in on MAGACOIN? It’s another crypto, it is tied to a topic (President Trump) that creates a digital ton of dialogue and that usually equates to market movements. It probably isn’t a terrible idea if you’re going to keep an eye on it often.

Read on [here] from the article source

Connecticut will be back in court over background checks


For those unaware, Connecticut residents have been being denied their Second Amendment rights for several days now as the state’s background check phone tree system is given an overhaul ‘update’ that has not gone well. At all…

The state is processing background checks at an abysmally slow rate, and a right delayed is a right denied. Connecticut is not using the national NICS system, which does use a digital portal to complete background checks in a (usually) timely manner. NICS is often as quick as you can type the information into the system, sometimes with a delay of a portion of an hour.

Connecticut uses a state system, that state system has been over the phone even as NICS was increasing their digital access. That state system is currently broken as broken can be.

From NBC CT,

Gun Retailers Take State Back To Court Over Issues With Background Check System

A recent upgrade to a state computer system is impacting the speed of gun sales and now retailers and their customers are taking the state back to federal court over the issue.

“We spoke to a gentleman the other day who has 67 transactions people have paid him for. He’s just looking to get approval from the state and they won’t answer the phone,” Rep. Craig Fishbein said. 

Fishbein, the attorney who is representing these dealers, said the federally licensed firearm dealers could be out of business quickly if they can’t get approval for these sales or transfers.

“That telephone system has been an absolute abomination for years now,” Fishbein said. 

“A lot of these stores have literally hundreds of customers lined up who are trying to purchase firearms. Many of them have already put down deposits,” Rep. Doug Dubitsky, the other attorney representing the gun retailers, said. 

The system was antiquated.

“Paper and pens and scissors to basically put the files together for these firearms transactions for the dealers,” Brian Foley, assistant to Public Safety Commissioner James Rovella, said. 

The state police said the background check system for retailers was shut down for five days to make improvements.

“When it’s fully built and constructed this will be much easier for the dealers. A completely electronic experience for them in most cases,” Foley said. 

The new phone system will eventually turn into an online system, but it’s not there yet.

“It’s just calling, calling, calling. You feel like you win the lottery when you get through right now,” Kyle Overturf, manager of Blue Trail Range, said. 

An upgrade in a state police computer system has created delays in background checks for gun purchases and retailers say that is hurting their business.

That’s not good enough for retailers or their customers.

“That in essence is denying the citizens of Connecticut from being able to exercise their 2nd amendment right,” Mark Oliva, communications director for the National Shooting Sports Foundation, said. 

The Connecticut Citizens Defense League and N.S.S.F believe the state, like many states, should use the federal National Instant Criminal Background Check system. 

“I hope that all Connecticut residents should be concerned about the state’s failure to provide a process for a constitutionally protected right,” CCDL President Holly Sullivan said. 

The state Attorney General’s office had no comment on the lawsuit.

The two sides will be back in court on Friday to make their arguments.

Read on [here] from the article source

SCOTUS Decisions Signify 1st Amendment Direction

This past term has seen a flurry of First Amendment action from the U.S. Supreme Court.

The court unanimously vindicated a Catholic foster agency’s religious free exercise right to refuse placement of children with gay couples, voted 8-1 to confirm a minor’s free speech right to disseminate off-campus, profane social media posts to hundreds of Snapchat friends about her school, and protected associational rights in a 6-3 decision that protects donors from doxing. – Law 360

The sitting Supreme Court is sending a strong signal that the 1st Amendment of the U.S. Constitution is in good hands. That the rights of the people to express themselves in forums and manners consistent with their values and beliefs as well not be forced into actions or concessions contrary to their values.

A school was denied the ability to silence a student who was unflattering of them, because that student was doing so outside the times and spaces the school has purview over. 

A religious organization was not compelled to provide services that are contrary to their beliefs in what is right.

And individuals in California who donate to charitable causes are not compelled to be publicly known to the state, suppressing fundraising for any organization that may be disfavored by those elected to the state. 

All of these decisions affirm the court’s commitment to supporting the autonomy of thought, even if it goes contrary to the public flavor of the moment, of each individual and of organized private groups. These are massive free speech, expression, and association wins. We look forward to more.

Read on [here] from the article source

British Rapper Praises American 2nd Amendment: ‘ONLY Country In The West That Is Largely Protected Against Totalitarianism’


From The Daily Wire:

On Wednesday, the British rapper Zuby issued a short Twitter thread championing the United States’ constitutional right to bear arms, writing of the 2nd amendment, “The ONLY country in the West that is largely protected against totalitarianism is the USA. And that’s because of the 2nd Amendment.”

He started by stating, “Many Western countries are evolving into authoritarian regimes in real-time. But people are so convinced by the illusions of ‘freedom’ and ‘democracy’ that they outright refuse to admit what’s happening. The cognitive dissonance is off the charts… The ego won’t allow it. Europe alone has seen the rise of multiple authoritarian regimes over the past few centuries. It is arrogant and foolish to assume history is ‘over’ or ‘that can’t happen here’. It absolutely can. Human nature has not changed. Have a Plan B if you value liberty. Real talk.”

“The ONLY country in the West that is largely protected against totalitarianism is the USA,” he continued. “And that’s because of the 2nd Amendment. UK, Europe, Australia, Canada, Australia, New Zealand… all ultimately reliant on the benevolence (or wickedness) of their leaders.Over the next few years, I predict a significant movement of capable people from urban to rural, and from ‘1st world’ countries to ‘2nd and 3rd world’ countries. The veil has fallen. Bitter pill to swallow, but here we are.”

Read on [here] from the article source

Kamala Harris’ past returns with the Supreme Court.


As many of you may know our current Vice President was once the Attorney General for the State of California. During that time she pursued several items that have since comeback to haunt her. Her record on marijuana convictions is high on the list as the United States is looking towards full federal legalization. But in this case, her dogged pursuit of the Koch brothers came home to an unpleasant landing as the Supreme Court ruled in favor of donor’s rights.

Vice President Harris had her political past upended this month when the Supreme Court decided a case that originated when she was attorney general of California. That case involved donations and anonymity within California.

The court‘s six Republican-appointed justices ruled against the state in favor of a group founded by conservative donors Charles and David Koch called the Americans for Prosperity Foundation. The foundation, along with another conservative group called the Thomas More Law Center, sued the attorney general for enforcing a state law requiring them to disclose to the office the names of their biggest donors, an obligation for nonprofit groups that was intended to thwart fraud.

Intended to, but inquiries into whether or not the state had used the data for that purpose in any meaningful way showed that it hadn’t. Instead, California had a database of all donors, tying those donors publically to causes they support that those donors should have full discretion on whether or not that information is public. That information could be vulnerable to FOIA requests, leaks, disgruntled employees, or hacks that release all the donor PII. All of which violate a donors discretion on whether or not to be known as a donor to the public.

The ruling has an immediate effect on charitable donors who want to keep their identities hidden from state authorities, though the IRS still requires disclosure. Some campaign ethics watchdogs believe the high court’s decision could eventually upend rules that require big donors to disclose their political giving to the public.

They key factor is these are not direct political donations, the fear that not disclosing private donations to private charitables will cross over into donations to political campaigns is a stretch right now. Why, direct political donations are public perview and have a public scrutiny aspect. Private donations to private organizations are not the purview of the public. Furthermore the IRS does have duties to protect PII which the state in general does not, especially under FOIA and other collected information groups. Charitable donations are a tax adjustable bracket so that falls under the IRS’s domain.

The simple collection of donor information does not have a public function in California, the donor info isn’t actively being used like it is with the IRS for an adjustment. Holding the info isn’t using that information to actively prevent fraud. The potential for abuse was seen to outweigh any possible theoretical gain to the state. The possibility of a crime, the per-crime collection and monitoring, is unwarranted without some evidence fraud is taking place. In that case, an organization might be legally compelled to disclose, but without such evidence the collection only served to discourage charitable giving by those who want to maintain control over their personally identifiable information in giving. The disclosure of that information, accidentally or otherwise, opens donors to all kinds of solicitation and harassment.

And so, a Harris era rule has fallen and donors in California are once again safer in their own private decisions and donations.

Read on [here] from the article source

A $150,000 Donation to Firearms Policy Foundation from Brownells, fighting the 2A fight.

Brownells BRN-180S – The Pistol Configuration Performance

AmmoLand.com, is reporting a large donations by Brownells, an Iowa company well known for firearms, maintenance parts, and accesories in the space. The Firearm Policy Foundation who received the donation is one of the leading legal activist groups fighting for the Second Amendment across the nation

Here is the report,

Brownells donated more than $150,000 to the Firearms Policy Foundation, with money generated by the “Made in America” promotion at Brownells.com leading up to Independence Day.

The Firearms Policy Foundation is a 501(c)3 organization which helps fund the Firearms Policy Coalition, a 501(c)4 dedicated to defending the Constitution of the United States, especially the individual right to keep and bear arms.

The donation will help with the on-going struggle to restore and eventually expand constitutionally guaranteed Second Amendment rights for all Americans.

“I want to thank everyone who bought American to help save the 2nd Amendment,” said Brownells Chairman Pete Brownell. “We all benefit from the great work of the Firearms Policy Coalition.”

“On behalf of the FPC team and our members, we are humbled and honored that Brownells and its amazing customers have so generously provided this significant funding for our critical pro-rights legal and education programs, including dozens of active lawsuits and new cases being prepared today,” said FPF Chairman and FPC President Brandon Combs. “Especially in this era where our rights are under attack at all levels, from the Biden administration to local governments like San Jose, California, every dollar counts and will go straight to the front lines in principled efforts to defend and expand individual liberty,”

Firearms Policy Foundation is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to defend the Constitution of the United States and the People’s rights, privileges, and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms, through research, education, legal action, and other charitable programs.Firearms Policy Coalition

About Brownells

Serious About Firearms Since 1939™, Brownells is the world’s leading source for guns, gun parts and accessories, ammunition, gunsmithing tools and survival gear. With a large selection of both common and hard-to-find items, and an extensive collection of videos, articles, and gun schematics, Brownells is the expert for everything shooting-related. Committed to maintaining our great traditions, Brownells has more, does more and knows more – and guarantees it all, Forever. For more information or to place an order, call 800-741-0015 or visit Brownells.com. Stay up-to-date with Brownells on YouTube, Facebook, Twitter and Instagram.Brownells

Read on [here] from the article source

Politico: Sen. Dick Durbin Acknowledges “a Lot of Issues” with David Chipman

In this Sept. 25, 2019, file photo Giffords Law Center Senior Policy Advisor David Chipman speaks at a House Judiciary Committee hearing on assault weapons on Capitol Hill in Washington. (AP Photo/Andrew Harnik, File)

When the Dems can’t ignore it, it is really bad.

Chipman is among the worst nominees I have seen selected in my lifetime. It isn’t even a bad joke at this point, he isn’t just a partisan hack ‘yes man’ he is employed and paid by a lobby that actively seeks to destroy the industry he would be in charge of overseeing the regulation of.

Continue to pressure your senators to give Chipman the axe. He should never receive federal employment in a supervisory position anywhere near the topic of firearms.

This From Breitbart,

On Monday, Senate Majority Whip Dick Durbin (D-IL) acknowledged that “there are a lot of issues” with President Joe Biden’s ATF nominee David Chipman.

Politico reported that Durbin said the whip count “is not where we want it yet, but there’s always a chance.”

Republicans appear united in opposition to Chipman.

Breitbart News noted Sen. Pat Toomey’s (R-PA) July 15, 2021, announcement that he will vote against confirming Chipman.

Toomey said, “While I respect David Chipman’s nearly 25 years of experience as an ATF agent. I fear that his subsequent vocal support for policies that limit the rights of law-abiding gun owners and his past criticisms of those in the firearm industry would compromise his ability to carry out ATF’s mission effectively.”

On June 22, 2021, Breitbart News pointed out Sen. Susan Collins’ (R-ME) concern about Chipman. She cited concerns similar to Toomey’s and also referenced statements Chipman “has made … that demean law-abiding gun owners.”

Fox News quoted Collins saying:

“Although he has the right to express his views, I believe this history makes him an unusually divisive pick for this important position. In particular, I am concerned that his confirmation would do significant damage to the collaborative working relationship that must exist between ATF, the firearms industry, sportsmen and women, and other law-abiding gun owners exercising their Second Amendment rights.”

With no Republican support, Durbin is waiting on Sens. Joe Manchin (D-WV) and Jon Tester (D-MT), and a few other red-state Democrats, hoping they will put Chipman’s nomination over the top.

Breitbart News explained that Donald Trump Jr. is calling on Democrat constituents in red states to call Manchin, Tester, and others and urge them to vote against confirming Chipman.

Trump Jr. told Breitbart News, “David Chipman is an anti-2nd Amendment radical, who has a long record of supporting gun confiscation and restricting the rights of law abiding gun owners.”

Politico observed that Chipman is still a “senior policy adviser” at Gabby Giffords’ gun control group.

Think about that,

Chipman has not resigned from Giffords, there has been not attempt made to distance Chipman from his anti-2A advocacy and he is the very embodiment of the blatant disregard, bought and purchased activism, and outright contempt that Biden holds for 100 Million American citizens.

Read on [here] from the article source

Government Persuasion vs. Government Coercion: The Employer Speech Analogy


The US Government advocated open censorship by private entities. That should concern everyone. Literally everyone. The government is a power broker, an entity like many others, but this entity exists to protect the rights and well being of its citizens. All of its citizens.

If that government takes a stance that favors certain citizens over others, that is a policy that should be unequivocally opposed. When it comes to censorship by private companies, the government has one legitimate stance it can hold. ‘It is the purview of the company or companies to set policies and participant expectations and to apply them to their platforms, however those policies and expectations should be applied fairly and evenly across the platform and if discrimination is taking place the government may entertain a case or cases to redress that issue on behalf of the aggrieved parties.’

And even then the government must use a light hand. The military is running into this problem heavily now, especially with the rise of instant communication, of undo or unlawful command influence. Using a position of assumed or assigned authority to force acquiescence to an act.

You may have heard the term ‘voluntold’ in public or private sectors, which basically means you were told to do something instead of volunteering to do it. If that telling is inline with assigned duties and responsibilities, it is not out of line to be told to do so, even if it is annoying or inconvenient. But what the military has been caught doing with COVID, and the government must be very careful of doing with the public, is punishing people for not volunteering for an actual voluntary act. The military has repeatedly told service members that the COVID vaccines are voluntary (with a variety of reasons for that) but commands have punished and restricted troop movements and privileges if they are not vaccinated, far out of line of what constitutes risk of infections spread. It was influencing members to get a vaccine in order to have normal day-to-day activities restored while nominally saying that the vaccine was still a voluntary procedure.

This is further confused by the fact that the military is well within their purview to make vaccines a mandatory item. They do for several, even more when troops are deploying to other places in the world with health risks different than the US. Instead of mandating the vaccine though, they made it voluntary and then abused their authority to pressure soldiers. A terrible decision on all accounts.

This same influence is becoming a risk in free speech circles. The government is allowed to purseude, it cannot be seen as overtly coercive.


Here’s a highly tentative idea that I wanted to flag: As the post on “When Government Urges Private Entities to Restrict Others’ Speech” (and the caselaw it cites) reflects, government speech can often be subtly coercive because of the government’s background power over the public. As the Seventh Circuit mentioned in Backpage.com, LLC v. Dart, in finding that a sheriff’s letter to Mastercard and Visa demanding that they stop doing business with Backpage because of its sex-related advertisements:

Imagine a letter that was similar to Sheriff Dart’s but more temperate (no “demand,” no “compels,” no “sever [all] ties”) and sent to a credit card company by a person who was not a law-enforcement officer. The letter would be more likely to be discarded or filed away than to be acted on. For there is evidence that the credit card companies had received such complaints from private citizens, yet it was Dart’s letter that spurred them to take immediate action to cut off Backpage. For that was a letter from a government official containing legal threats and demands for quick action and insisting that an employee of the recipient be designated to answer phone calls or respond to other communications from the sheriff.

Indeed, even if letter from a private citizen contained demands, a large company would likely have felt less pressure than from a letter that comes from a government official who has enforcement power, and the ear of colleagues who have still more enforcement power. A business that gets even a “request” from a sheriff or a prosecutor or the President may “pick up intended implications … that might be more readily dismissed” if the requester lacked power over the business.

That last quote, as it happens, isn’t from a government speech case; it’s from an employer speech case, NLRB v. Gissel Packing Co. (1969), in which the Court reaffirmed that

  1. employers have the First Amendment right to speak to their employees about the possible costs of unionization,
  2. employers don’t have the First Amendment right to threaten employees with reprisals for unionizing, and
  3. in drawing the line between (1) and (2), the employer’s power to fire employees needs to be taken into account.

Here is the broader quote:

[A]n employer’s free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board. Thus, § 8(c) [of the NLRA] merely implements the First Amendment by requiring that the expression of “any views, argument, or opinion” shall not be “evidence of an unfair labor practice,” so long as such expression contains “no threat of reprisal or force or promise of benefit” in violation of § 8(a)(1). Section 8(a)(1), in turn, prohibits interference, restraint or coercion of employees in the exercise of their right to self-organization.

Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer’s rights cannot outweigh the equal rights of the employees to associate freely, as those rights are … protected by § 8(a)(1) and the proviso to § 8(c).

And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. Stating these obvious principles is but another way of recognizing that what is basically at stake is the establishment of a nonpermanent, limited relationship between the employer, his economically dependent employee and his union agent, not the election of legislators or the enactment of legislation whereby that relationship is ultimately defined and where the independent voter may be freer to listen more objectively and employers as a class freer to talk.

As best I can tell, the courts have taken seriously all three elements on the list I gave above. Post-Gissel do recognize the right of employers (and unions) to speak. They do recognize the right of employees to be free of coercion by employers and unions when it comes to unionization votes. And they do take into account employers’ (and unions’) power over employees in deciding whether a statement is unduly coercive. See, e.g., Roper Corp. v. NLRB, 712 F.2d 306, 311 (7th Cir. 1983); In re Perry, 859 F.2d 1043 (1st Cir. 1988); NLRB v. Douglas Div., 570 F.2d 742, 747 (8th Cir. 1978); Sheet Metal Workers Int’l Ass’n v. Burlington N.R.R. Co., 736 F.2d 1250, 1253 (8th Cir. 1984); Dow Chem. Co. v. NLRB, 660 F.2d 637, 644-45 (5th Cir. Unit A Nov. 1981); NLRB v. Proler Int’l Corp., 635 F.2d 351, 355-56 (5th Cir. Unit A Jan. 1981); Florida Steel Corp. v. NLRB, 587 F.2d 735, 750-53 (5th Cir. 1979); J.P. Stevens & Co. v. NLRB, 449 F.2d 595, 597 (4th Cir. 1971). (I put this list together in 1991, and haven’t updated it since, but my sense is that more recent cases take the same approach.)

So my tentative proposal: Perhaps in drawing the line between permissible urging by government officials and forbidden implicit threats, the labor speech caselaw might be helpful. To be sure, that caselaw doesn’t provide a sharp line, but I’m not sure that there can be such a sharp line; and at least it offers a useful and substantial body of precedent  to which courts and lawyers can turn.

But, again, this is just a tentative thought; I’d love to hear what others say about it.

Read on [here] from the article source