Tag Archives: first-amendment

A Win for Free Speech and Gun Safety – New York Times

Posted: February 19, 2017 at 11:02 am


New York Times
A Win for Free Speech and Gun Safety
New York Times
As the United States Court of Appeals for the 11th Circuit held on Thursday in striking down the key parts of the law, this is an obvious violation of the First Amendment, which generally prohibits restrictions on speech based on what's being said. It

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Free Speech Vs. ‘Hate Speech’ – PJ Media

Posted: at 11:01 am

I recently attended a symposium, held at the University of Toronto and sponsored by a group of politically savvy libertarian and conservative students, on the topic of free speech and expression in the current repressive cultural and political milieu. The audience of almost every other conservative symposium I have attended has been composed chiefly of elderly white men, with a modest sprinkling of women and a sparse handful of younger people. On this occasion I was gladdened to note that the age gap had been bridged, dividing equally between older and younger, while the distaff representation was comparatively prominent.

The fact that the symposium was organized by two student groups worried about their political and economic future, Students for Liberty and Generation Screwed, explained the mixed composition of the conference attendees and signaled a more hopeful future for the nascent conservative movement growing on campus as well as in the non-academic world. This young, right-leaning cohort — politically active, intellectually engaged, well-educated and civil — are in marked contrast to their leftist counterparts consisting of a mlange of snowflakes and hooligans, who were soon to make their presence known at the event.

The issues discussed at the symposium largely involved the nature and definition of speech violence, or what is called hate speech, criminalized in several countries and jurisdictions. Both sides of the dispute, left and right, agree that limits to freedom of speech are necessary, but disagree as to where these limits should be placed. The left, whether radical or moderate, regards as felonies forms of speech that offend a privileged identity group, whether racial, ethnic, religious (i.e., Muslims), or gender-based (i.e., women, gays, trans-people), or criticizes the ideological positions such favored groups adopt. Additionally, a prime tactic of the left is what we may call pre-emptive suppression. Speaking engagements are often shut down before or during an address, making debate and discussion impossible. Censorship and repression thus become acceptable methods of dealing with such perceived transgressions as open colloquies, lectures and conferences.

The conservative right believes that speech should be mainly unfettered, except when it damages reputations through lies or urges acts of physical violence. Of course, speech itself can be an act, as philosopher J.L. Austin has shown in How to Do Things with Words: in his most famous example, when the minister states I now pronounce you husband and wife, an act has been performed since it changes the status of the participants.

We should note, however, that words critical of an individual or a group are not performative (or illocutionary, in Austins phrase). If I criticize Islam as a violent faith, I do not thereby make it violent or directly instigate violence against it. My words do not change the reality of Islam, whatever it may be. In the U.S., even words advocating violence (except in official or legally constituted circumstances, or in situations where there is a clear and present danger) are not considered performative. The 1969 Brandenburg vs. Ohio Supreme Court case ruled that speech can be prohibited if it is “directed at inciting or producing imminent lawless action.” (Italics mine). In the words of the Legal Encyclopedia discussing the case, the First Amendment protects speech unless it encourages immediate violence or other unlawful action. (Italics mine). In this instance, both the temporal element and unequivocal incitement are crucial. Mere advocacy is another question entirely and is not prohibited, although here the conservative argument tends to draw the line, even if the U.S. Supreme Court did not.

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Court Says Google Has A First Amendment Right To Delist Competitor’s ‘Spammy’ Content – Above the Law

Posted: at 10:55 am

Last summer, a Florida federal court reachedsome unusual conclusionsin a lawsuit filed by SEO company e-ventures, which felt Google had overstepped its bounds in delisting a lot of its links. Google defended itself, citing both Section 230 and the First Amendment. The court disagreed with both arguments.

As to Section 230, the court found that Googles delisting efforts werent in good faith. The reason cited was e-ventures claim that the delisting was in bad faith. So much for this seldom-used aspect of Section 230: the Good Samaritan clause which states no third-party company can be found liable for actions it takes to remove content it finds questionable. And so much for viewed in the light most favorable to the non-moving party. Apparently, Googles long history of spam-fighting efforts is nothing compared to an SEO wranglers pained assertions.

The court also said Google had no First Amendment right to handle its search rankings however it saw fit, which is more than a little problematic. While it admitted Googles search rankings were protected speech, its statements about how it handled search engines werent. And, for some reason, the court felt that Googles ads undermined its First Amendment protections because its desire to turn a profit somehow nullified its editorial judgment.

It was a strange decision and one that suggested this court might be considering getting into the business of telling service providers how to run their businesses. It also suggested this court believed the more successful the business was, the fewer rights and protections it had. These dubious conclusions prevented Google from having the case dismissed.

Fortunately, this wasnt the final decision. As Eric Goldman points out, last years denial only delayed the inevitable. After a few more rounds of arguments and legal paperwork, Google has prevailed. But theres not much to celebrate in this decision as the court has (again) decided toroute around Googles Section 230 Good Samaritan defense.

Regarding 230(c)(2), the court says spam can qualify as harassing or objectionable content (cite toe360insightwith a but-see to theSong Ficase). Still, the court says e-ventures brought forward enough circumstantial evidence about Googles motivations to send the case to a trial. By making it so Google cant even win on summary judgment, rulings like this just reinforce how Section 230(c)(2) is a useless safe harbor.

Had it ended there, Google would be still be facing e-ventures claims. But it didnt. The court takes another look at Googles First Amendment claims and finds that the search engine provider does actually have the right to remove spammy links. Beyond that, it finds Google even has the First Amendment right to remove competitors content. From theorder[PDF]:

[T]he First Amendment protects as speech the results produced by an Internet search engine. Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014). A search engine is akin to a publisher, whose judgments about what to publish and what not to publish are absolutely protected by the First Amendment. See Miami Herald Publg Co. v. Tornillo, 418 U.S. 241, 258 (1974) (The choice of material to go into a newspaper . . .whether fair or unfairconstitute[s] the exercise of editorial control and judgment that the First Amendment protects.) The presumption that editorial judgments, no matter the motive, are protected expression is too high a bar for e-ventures to overcome.

And the court walks back its earlier conclusion the one that seemed to find profit-motivated editorial judgment to be unworthy of First Amendment protections.

Googles actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Googles guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication. The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.

The case is now dismissed with prejudice which bars e-ventures from complaining about Googles delisting efforts in federal court. e-ventures has gone this far already in hopes of seeing its terms-violating content reinstated, so it will likely attempt to appeal this decision. But it really shouldnt. Its unlikely another set of judges will help it clear the First Amendment hurdle. Not only that, but this area of law should be well-settled by now, as Goldman points out:

Of course Google can de-index sites it thinks are spam. Its hard to believe were still litigating that issue in 2017; these issues were explored in suits likeSearchKingandKinderStartfrom over a decade ago.

The plaintiff was given a long leash by the court, which should have tossed last year. Even with the extra time and the court doings its Section 230 circumvention work for it, e-ventures still couldnt prevail.

Court Says Google Has A First Amendment Right To Delist Competitors Spammy Content

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First Amendment survives challenge from Florida gun law – Minnesota Public Radio News (blog)

Posted: February 18, 2017 at 3:55 am

If youre at all a fan of the First Amendment, there was plenty to like about todays decision by the 11th U.S. Circuit Court of Appeals striking down a Florida law that prohibited doctors from asking whether there are guns in the home (heres the full law in question).

But lets focus on the concurring opinion of William Pryor, who was on the short list to replace Justice Antonin Scalia on the U.S. Supreme Court.

Pryor is a conservative, so he took great pains to point out that the decision is not about the Second Amendment; its about the First.

And much of his opinion was aimed strictly at conservatives, apparently anticipating their criticism.

Heres some examples.

If we upheld the Act, we could set a precedent for many other restrictions of potentially unpopular speech. Think of everything the government might seek to ban between doctor and patient as supposedly irrelevant to the practice of medicine. Without the protection of free speech, the government might seek to ban discussion of religion between doctor and patient. The state could stop a surgeon from praying with his patient before surgery or punish a Christian doctor for asking patients if they have accepted Jesus Christ as their Lord and Savior or punish an atheist for telling his patient that religious belief is delusional.

Without the protection of free speech, the government might seek to censor political speech by doctors. The state might prevent doctors from encouraging their patients to vote in favor of universal health care or prohibit a physician from criticizing the Affordable Care Act. Some might argue that such topics are irrelevant to a particular patients immediate medical needs, but the First Amendment ensures that doctors cannot be threatened with state punishment for speech even if it goes beyond diagnosis and treatment.

Pryor said doctors already discuss highly controversial topics with patients. Whether to play football, or telling teenagers to abstain from sex, and recommending organ donation.

He called the very idea a thought experiment and then lowered the boom with this beautiful piece of prose:

If today the majority can censor so-called heresy, then tomorrow a new majority can censor what was yesterday so-called orthodoxy.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . . Our decision applies this timeless principle to speech between doctors and patients, regardless of the content. The First Amendment requires the protection of ideas that some people might find distasteful because tomorrow the tables might be turned.

Todays decision was not close. The vote was 10-to-1.

The one belonged to Gerald Bard Tjoflat, who is 87 years old and is the longest-service justice in the U.S. Court of Appeals system.

He does see the case as a Second Amendment question:

The majority and I agree that Florida possesses a substantial interest in protecting both Floridians reasonable expectation of privacy during medical treatment and the full exercise of their Second Amendment rights. If that is so, then it is hard to imagine a law more precisely tailored to advance those substantial state interests than the one presently before us. The Act does not categorically restrict the speech of medical professionals on the subject of firearms. Instead, it simply requires an individualized, good faith judgment of the necessity of speech related to firearm ownership to provide competent medical care to a patient.

a constitutional right is a right to be free of governmental restrictions on the exercise of the right it is not a right to be free of private criticism for the exercise of the right, much less private questions about the exercise of the right, law professor Eugene Volokh in his Washington Post column analyzing todays decision. A doctor no more violates your Second Amendment rights by asking you about whether you own a gun than the doctor violates your First Amendment rights by asking you how much TV your children watch, or your Lawrence v. Texas sexual autonomy rights by asking you whether youve been having sex with multiple partners.

Heres the courts full opinion:

Bob Collins has been with Minnesota Public Radio since 1992, emigrating to Minnesota from Massachusetts. He was senior editor of news in the 90s, ran MPRs political unit, created the MPR News regional website, invented the popular Select A Candidate, started the two most popular blogs in the history of MPR and every day laments that his Minnesota Fantasy Legislature project never caught on.

NewsCut is a blog featuring observations about the news. It provides a forum for an online discussion and debate about events that might not typically make the front page. NewsCut posts are not news stories but reflections , observations, and debate.

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ACLU calls Hogan Facebook policy ‘censorship’ – Baltimore Sun

Posted: at 3:44 am

The ACLU of Maryland contends Gov. Larry Hogan’s deletion of Facebook comments is tantamount to censorship.

The civil rights organization sent the Republican governor a letter Friday outlining its legal argument that Hogan violated the First Amendment rights of his constituents when he deleted their comments from his official Facebook page and banned some people from posting.

The letter said Hogan’s actions also violate the state’s social media policy, and it asked the governor to reinstate seven ACLU clients who have been banned.

“If he does not, we’ll take him to court,” said Deborah Jeon, legal director of the American Civil Liberties Union.

Hogan’s staff said in a statement they reinstated six out of the seven people, but could not find a Facebook profile for the seventh.

“We appreciate them identifying a handful of individuals out of the over 1 million weekly viewers of the page that may have been inadvertently denied access,” Hogan spokeswoman Amelia Chasse said in a statement. “We have already reinstated these individuals, however we will be monitoring them closely for any profane, violent, racist, or inappropriate posts including political spamming attacks.”

Chasse also said “the ACLU should be focusing on much more important activities than monitoring the governor’s Facebook page.”

Since he took office two years ago, Hogan has banned 450 people from leaving comments on his social media page, aides estimated. Scores were recently banned after Hogan’s page was bombarded with requests to take a position on Republican President Donald J. Trump’s controversial travel ban that barred immigrants from seven predominately Muslim countries from entering the United States.

Hogan spokesman Doug Mayer has said that the press staff considers such efforts “spam” and that they have a responsibility to curate the conversation online.

“We’ve had to remove and prevent coordinated political spam attacks from infiltrating and hijacking the page,” Mayer said when the controversy surfaced two weeks ago. “We have an obligation to the 146,000 people who likes the governor’s page to keep the conversation fresh, appropriate, and on topic.”

Hogan has not taken a position on the travel ban, and bristled at requests for him to make comments about the Trump administration. The governor did not support Trump as a candidate.

In their letter, the ACLU contend Hogan appeared to have blocked their clients “seemingly because you did not wish to address their questions on various issues or respond to their concerns about your silence in the face of violations of civil rights and liberties by President Donald Trump and his administration.”

Several other local politicians also ban posters on their Facebook page, according to The Washington Post, but do not exclude as many as the Hogan administration.

The Maryland Democratic Party and the government accountability group Common Cause have also criticized the governor for silencing constituents on Facebook.

ecox@baltsun.com

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ABC News analyst: Trump ‘shutting down’ part of First Amendment by not calling on mainstream outlets – TheBlaze.com

Posted: February 17, 2017 at 12:59 am

ABC News analyst Matthew Dowd accused President Donald Trump Tuesday of shutting down part of the First Amendment because of his pattern of calling on conservative media outlets at White House news conferences.

Trump has held three news conferences in the last week alone as he welcomed three different world leaders to the White House: Japanese Prime Minister Shinzo Abe, Canadian Prime Minister Justin Trudeau and Israeli Prime Minister Benjamin Netanyahu. The president took two questions from American media at each of those three events, the majority being conservative outlets.

During Trumps joint news conference Friday with Japanss Abe, he called on reporters from the New York Post and Fox Business Network, both of which are owned by conservative media mogul Rupert Murdoch. In his second joint press conference Monday with Canadas Trudeau, Trump answered questions from WJLA-TV, the local ABC affiliate in Washington, D.C., and the Daily Caller. Then, during his appearance Wednesday with Netanyahu, Trump called on the Christian Broadcast Network and Townhall.com.

WJLA-TV is owned by Sinclair Broadcasting, the company with which President Trumps son-in-law, Jared Kushner, struck a deal during the campaign that gave Sinclair stations, many of which were in swing states, more access to then-President-elect Trump, Politico reported.

Trumps decision to force mainstream media outlets to take a back seat caused a number of reporters and analysts at CNN, MSNBC and the three broadcast networks to voice their frustrations on air.

I think theres no other way to describe it but the fix is in, CNNs Jim Acosta said Wednesday, Hot Air reported. This White House, this president does not want to answer questions, critical questions about his associates, his aids contacts with the Russians during the course of that campaign just as his national security adviser is being run out of this White House on a rail.

They may think that this is being cute or they may think that this is strategic in terms of trying to shield the president from questions, but those questions can only be shielded for so long, Acosta added.

Acosta was referring to the New York Times report that members of Trumps campaign were in frequent contact with the Russian government. Namely, a Washington Post report revealed that Gen. Michael Flynn, who Trump named as his national security adviser, had called the Russian ambassador to the U.S. multiple times, which Flynn then lied about to Vice President Mike Pence, a move that ultimately led to Flynns resignation.

Acosta wasnt the only one who took issue with Trumps selection of media outlets, though. Dowd told theABCs George Stephanopolous that by not calling on mainstream media outlets, Trump was shutting down part of the First Amendment.

Noting the strategy behind Trump not calling on mainstream media reporters, Stephanopolous said the White House probably [doesnt] mind the fact that the mainstream press is shouting about it, referring to reporters shouting their questions at Trump he left the room after Thursdays joint news conference with Israels Netanyahu.

But how long can that last? Stephanopolous asked.

Dowd said he was struck by Trump only calling on conservative outlets.

This is two democracies, two important democracies in the world. And basically, the president of the United States is shutting down part of the First Amendment by not taking questions that are in any way antagonistic in this, Dowd said.

I think he thinks relying on his Twitter feed, and sending it out to the millions of people that subscribe to it, and then dealing with very cozy press in this is going to be the way to get through this, Dowd added.

(H/T: Daily Caller)

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Court Says Google Has A First Amendment Right To Delist Competitor’s ‘Spammy’ Content – Techdirt

Posted: at 12:59 am

Last summer, a Florida federal court reached some unusual conclusions in a lawsuit filed by SEO company e-ventures, which felt Google had overstepped its bounds in delisting a lot of its links. Google defended itself, citing both Section 230 and the First Amendment. The court disagreed with both arguments.

As to Section 230, the court found that Google’s delisting efforts weren’t in “good faith.” The reason cited was e-ventures’ claim that the delisting was in “bad faith.” So much for this seldom-used aspect of Section 230: the “Good Samaritan” clause which states no third-party company can be found liable for actions it takes to remove content it finds questionable. And so much for “viewed in the light most favorable to the non-moving party.” Apparently, Google’s long history of spam-fighting efforts is nothing compared to an SEO wrangler’s pained assertions.

The court also said Google had no First Amendment right to handle its search rankings however it saw fit, which is more than a little problematic. While it admitted Google’s search rankings were protected speech, its statements about how it handled search engines weren’t. And, for some reason, the court felt that Google’s ads undermined its First Amendment protections because its desire to turn a profit somehow nullified its “editorial judgment.”

It was a strange decision and one that suggested this court might be considering getting into the business of telling service providers how to run their businesses. It also suggested this court believed the more successful the business was, the fewer rights and protections it had. These dubious conclusions prevented Google from having the case dismissed.

Fortunately, this wasn’t the final decision. As Eric Goldman points out, last year’s denial only delayed the inevitable. After a few more rounds of arguments and legal paperwork, Google has prevailed. But there’s not much to celebrate in this decision as the court has (again) decided to route around Google’s Section 230 “Good Samaritan” defense.

Regarding 230(c)(2), the court says spam can qualify as harassing or objectionable content (cite to e360insight with a but-see to the Song Fi case). Still, the court says e-ventures brought forward enough circumstantial evidence about Googles motivations to send the case to a trial. By making it so Google cant even win on summary judgment, rulings like this just reinforce how Section 230(c)(2) is a useless safe harbor.

Had it ended there, Google would be still be facing e-ventures’ claims. But it didn’t. The court takes another look at Google’s First Amendment claims and finds that the search engine provider does actually have the right to remove “spammy” links. Beyond that, it finds Google even has the First Amendment right to remove competitors’ content. From the order [PDF]:

[T]he First Amendment protects as speech the results produced by an Internet search engine. Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014). A search engine is akin to a publisher, whose judgments about what to publish and what not to publish are absolutely protected by the First Amendment. See Miami Herald Publg Co. v. Tornillo, 418 U.S. 241, 258 (1974) (The choice of material to go into a newspaper . . .whether fair or unfairconstitute[s] the exercise of editorial control and judgment that the First Amendment protects.) The presumption that editorial judgments, no matter the motive, are protected expression is too high a bar for e-ventures to overcome.

And the court walks back its earlier conclusion — the one that seemed to find profit-motivated “editorial judgment” to be unworthy of First Amendment protections.

Googles actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Googles guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication. The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.

The case is now dismissed with prejudice which bars e-ventures from complaining about Google’s delisting efforts in federal court. e-ventures has gone this far already in hopes of seeing its terms-violating content reinstated, so it will likely attempt to appeal this decision. But it really shouldn’t. It’s unlikely another set of judges will help it clear the First Amendment hurdle. Not only that, but this area of law should be well-settled by now, as Goldman points out:

Of course Google can de-index sites it thinks are spam. Its hard to believe were still litigating that issue in 2017; these issues were explored in suits like SearchKing and KinderStart from over a decade ago.

The plaintiff was given a long leash by the court, which should have tossed last year. Even with the extra time and the court doings its Section 230 circumvention work for it, e-ventures still couldn’t prevail.

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Letter to the editor: First Amendment only applies to Americans – The Bakersfield Californian

Posted: at 12:59 am

As surely as the robins of spring and the swallows of Capistrano, the nay-saying critics who regularly cry racism, xenophobia or Islamophobia, to name a few of their favorite charges, come out to condemn the actions and the motivations of those they disagree with. The latest of course, is the so-called Muslim ban which temporarily suspends travelers to the U.S. from seven predominately Muslim countries.

Never mind that the 85 percent of Muslims who don’t live in those countries are not affected, including those in Saudi Arabia where, according to some sources, it’s because of Trump’s business connections there. As these seven countries were also singled out by President Obama we should logically conclude that his exemption of Saudi Arabia was also based on his personal interests, business or otherwise.

As to the claim that this executive order is unconstitutional, I have yet to see an explanation of just which part of our constitution is being violated. Do the critics really believe that our First Amendment is universal to the whole world in its application, rather than, as spelled out in the constitution’s preamble, a contract among the citizens of the United States for themselves and their posterity? Only those arrogant enough to believe that the United States should rule and govern the whole world should try to bestow our constitutional rights on that world.

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Fake News, Censorship & the Third-Person Effect: You Can’t Fool Me, Only Others! – Huffington Post

Posted: at 12:46 am

The aftermath of Donald J. Trumps stunning victory over Hillary Clinton brought with it much handwringing in news media circles and on social media platforms about the dangers of fake news. Some blame fake news for causing Clintons defeat, with the erstwhile candidate herself calling it an epidemic.

But theres a major paradox when it comes to peoples beliefs about fake news.

Specifically, many of us tend to believe that we can spot fake news we wont be fooled by it but others out there, who are more naive and less media savvy than us, surely will be duped.

For instance, a December 2016 survey conducted by the Pew Research Center found that most Americans

Yet despite the fact that some 84% of those surveyed were either very or somewhat confident in their own ability to spot fake news, 64% of the same people say fabricated news stories cause a great deal of confusion about the basic facts of current issues and events. This sense is shared widely across incomes, education levels, partisan affiliations and most other demographic characteristics.

In other words, Im no fool, but others are!

If thats truly the case, then why are we so worried about fake news? A few high-profile incidents like the Pizzagate shooting perhaps have caused undue panic.

The notion that Im no fool, but others are is, in fact, consistent with what communication scholars call the third-person effect. As W. Phillips Davison, the theorys founder, summed it up in a 1983 article

The danger here, as I explain in a new article published in the Wake Forest Law Review Online, is that individuals who exhibit signs of the third-person effect are also prone to call for censorship of media content in the name of protecting others. This, of course, raises serious First Amendment concerns regarding free speech. In other words, the third-person effect has both a perceptual aspect (what we believe about the influence of messages) and a behavioral component (censorship).

For example, a scholarly study on support for censorship of rap music found that those surveyed

Ultimately, consideration of the third-person effect might help to tamp down some of the rampant frets and fears about fake news. And if it does something more than that, as I argue in my article, the third-person effect should give lawmakers serious reason to take a thoughtful and deliberate pause before proposing any bills aimed at the censorship of fake news.

Remedies of educating people about how to spot fake news and publicly shaming fake news websites are far better alternatives than governmental censorship.

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Free Speech Is No Defense for Nick Cannon’s Rant on NBC – Observer

Posted: February 15, 2017 at 9:04 pm

I have never been the biggest fan of Nick Cannon, and it has nothing to do with his leading role in the Rocky of marching band moviesDrumlineit is simply I have never quite understood what he brings to the table. One of the biggest ironies on network TV is that Cannon has been the main presenter for eight seasons of Americas Got Talent since he is bereft of any discernible skill.

It seems his judgment isnt much better. In what can only be described as a hissy fit at being reminded of his contractual obligations by NBC, he has quit the show. Spinning the tale to his advantage, Cannon is championing himself as a new guardian of free speech and a martyr of the overbearing corporate machine who has paid him a small fortune for simply grinning like a Cheshire Cat. All of this makes very little sense, for Cannon is hardly to AGT what Seacrest was to American Idol.So, what prompted a person in such a weak bargaining position to act in such a rash manner and bite the hand that is feeding him?

All of this arose out of a series of jokes that Cannon told on a standup comedy special of Showtime, which centered upon the basic theme that NBC does not like black people. I know that there are eyebrows now being raised, first and foremost that Cannon was paid to perform comedymore onthat laterbut what on earth prompted Cannon to take public potshots at his long term employer?

Maybe it is that Cannon possesses the subtle turn of phrase of Louis C.K. so the world could see the intelligence wrapped up in his prose? Not the case. Alternatively, is it his Chris Rock-like charisma, which permits a blistering social commentary without breeding animosity? Also absent. There is always the possibility that Cannon is one of those rare specimens, like Mel Brooks, who is just funny. Unlikely, but being fair to the man, he may have hidden depths so lets analyze the offending gags.

Exhibit A: I grew up like a real n****r. All that stuff. But I honestly believe, once I started doingAmericas Got Talent, they took my real n****r card. They did! Because then like these type of people started showing up to my shows.

Exhibit B: I cant do the real n****r stuff no more, because then theyll put me on TMZ.

Exhibit C: Thats what NBC is gonna stand for tonight: N****** better come on, cuz n****** be cussin, so n****** be careful.

If one were to think this was a one-off, a misjudged, unrehearsed routine that went awry, Cannon, dispelling any specter of doubt, told Howard Sterns show If they fire me fromAGTfor the things Ive said Ican sue them and create a whole new controversyNBC hates black people!’

There is one continuing theme throughout, which demonstrates Cannons wish to share a deeply held resentment at how he is made to present himself. Similarly, there is a common thread in the exhibits: that Cannon, or his writers, are just not funnyso NBC has a plausible defense to the accusation of not being able to take a joke.

Instead of firing Cannon, NBC simply reminded him of the fairly standard clause in most entertainment contracts that talent should not do anything which might disparage the brand of their employer. To put it into context, one would not expect that Michael Jordan would joke about shoddy workmanship of Nike sneakers or that an actress would speak badly of the studio that produced her latest film. This is not just basic common sense that should obviate the need of a contractual clause, but also elementary law.

Now comes every lawyers nightmare, when dealing with clients. Rather than taking the hint, saying thank you for not firing me and shutting up, Cannon took umbrage. He threw his toys out of the pram at being told to comport himself and adhere to basic standards, like any other employee of the company and declared that he was quitting the show. Moreover, Cannon seems to be laying blame, not upon his own stupidity, but at the feet of others in his Facebook post.Maybe it was my mistake for signing the contract in the first place, in which I will take full responsibility and have already taken action to restructure my own team of advisors. This is double speak for getting rid of his legal team.

While Cannon wishes to turn this debacle into questions of freedom of speech and freedom of expression, it is neither. The First Amendment should not be used as a smokescreen for disparaging and denigrating language in breach of contract, especially when a person has profited from such words by accepting fees for the comedy special. For Cannon to attempt invoke the language of Dr. Martin Luther King as justification for his ill-thought actions and manipulate a self-destructive path, born out of celebrity, over privilege and over payment into a wider race issue, detracts from the genuine problems that currently exist.

The Exhibits above, while not exemplars of comedic genius, do evidence that there is a tension within Cannon between his identity and his previous role. With such baggage and behavior, even TMZ would doubtless demand a strong non-disparagement clause before going down the precarious path of hiring Cannon.

Robert Garson is Managing Partner of Garson, Sgal, Steinmetz, Fladgate LLP, an intellectual property and international litigation firm in New York, and a leading representative of corporate whistleblowers. He is also a barrister qualified in England and concentrates on IP and First Amendment matters.

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Free Speech Is No Defense for Nick Cannon’s Rant on NBC – Observer

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