Tag: First Amendment

Waiting for the Court

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When the Supreme Court issues an opinion that requires a change in Maryland law, I often introduce a bill.

I did so this session after the court’s decision modified the standard for when a verbal threat is a criminal offense, no longer protected by the First Amendment.

Today, the nine justices heard a challenge to a Florida statute that prevents websites from permanently barring candidates for political office in the state and a Texas law that prohibits removing any content based on a user’s viewpoint.

Until the court issues its opinion, most likely in June, the state of the law is in flux.

A provision in my House Bill 333 would regulate the posting of incorrect or misleading information about election procedures, election results, or voting rights in Maryland on major web platforms.

That portion of the bill needs to be set aside until next session, when we will know the legal standard resulting from today’s case.

However, HB 333 also provides for a portal maintained by the State Board of Elections where voters can submit examples of misinformation about the above topics.

This evidence will help us build the case that we need to regulate misinformation, consistent with the state’s ability to do so.

Who should serve on the Hate Crimes Commission? 

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Last fall, the director of an American-Islamic advocacy organization stated that he “was happy to see” Palestinians break out of Gaza on Oct. 7, the day of the Hamas terrorist attack on Israel.

The Biden administration removed the name of the Council on American-Islamic Relations (CAIR) from a document discussing commitments to fight antisemitism.

Last April, a Commission on Hate Crime Response and Prevention was enacted by the General Assembly.

Can this year’s legislature pass a bill that would remove the CAIR member from the commission and substitute two representatives of the Muslim community?

That’s what House Bill 763, introduced by Delegate Dalya Attar, would do.

I am a co-sponsor.

I also asked Professor Mark A. Graber, who teaches at the University of Maryland School of Law, to testify.

Among the reasons he gave that HB 763 is constitutional: people who give advice to government officials that is inconsistent with the leader’s policy views are not protected by the First Amendment.

A related bill was before my committee.

House Bill 809, sponsored by Delegate Joseph Vogel, would allow for the suspension or removal of an appointee to a commission on the grounds of “misconduct, incompetence, neglect of duties, or other good cause.”

It’s now my job to help my committee refine this bill and send it to the House floor.

Election Misinformation and the Internet

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Election misinformation is not a new tactic.

Twenty years ago in Maryland, flyers encouraged people to vote on a date two days after Election Day.

I passed a bill making it a crime to knowingly use fraud or other means to influence a voter’s decision whether to vote.

Misinformation has now found a home on the Internet.

How can we regulate the bad actors and not violate the First Amendment rights of websites?

I spoke with experts in drafting my bill.

I sought advice from the Attorney General’s Office.

This bill, as drafted, the AG responded, would be at “serious risk of being declared in violation of the First Amendment.”

On Wednesday, I drafted amendments to address those concerns.

This afternoon, the amendment drafter asked me, “How often do you want the State Board to review the voter suppression action line? Would this be a daily/weekly/monthly thing?”

“Daily within one month of the mailing of ballots,” I replied.  “Otherwise monthly.”

The bill hearing is next Tuesday.

I want the opponents of the bill, as it was introduced, to be testifying about the bill as it’s been amended.

A First Time on a First Amendment Case

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I was prepared for today’s hearing, or so I thought.

The Consent of the Governed Act would severely limit the Governor’s power to act in an emergency.

I prepared a question for the bill’s sponsor, Delegate Cox, that compared his legislation to a recent Supreme Court case.

The court held that a New York regulation limiting the number of people who could attend a religious service violated the 1st Amendment protection of the free exercise of religion.

There are “less restrictive rules that could be adopted to minimize the risk to those attending religious services,”  the court held.

“As I read your bill,” I asked Delegate Cox, “it would not allow for the limitations on attendance at services that the court would permit.”

The delegate said I was misreading his bill.

That was mild, compared to what happened next.

Delegate Saab requested that someone’s written testimony be removed from the official record because it did not speak to the issues raised by the bill.

In my 30+ years as a legislator, I don’t recall anyone else making such a request.

As fate, and my chairman’s discretion, would have it, I was chairing today’s hearing.

I had to respond to this unique request.

“This testimony is exercising an individual’s First Amendment right to petition the government,” I replied  “I suggest that you ask the Attorney General’s Office if your request is permissible.”

Putin’s bots and the First Amendment

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Litigate or legislate?

The General Assembly just passed a law requiring online platforms, such as Facebook, to keep records of who paid for political advertisements on their sites.

We acted in response to the ads bought by Russian agents, working at the behest of the Putin government, during the 2016 Presidential election.

Before I introduced my legislation, I sent the draft to the Attorney General’s Office, which advised me that it was constitutional.

Several of its provisions were amended onto the legislation that we passed, House Bill 981 and Senate Bill 875.

Late in the session, I attended a meeting with representatives of Facebook, newspapers, television, and radio.
Facebook said that this legislation could serve as a national model.

However, a newspaper representative asserted that the First Amendment prohibits the government from requiring the press to print anything, even a database of political advertisers on a newspaper’s online edition.

We decided not to revise the bill because an amendment would delay final action and possibly prevent the bill from passing.

Last week, Governor Hogan let this legislation become law without his signature.

He supported the intent of the bill, he wrote, but was concerned about the First Amendment issue.

The law could be challenged in court, stated Rebecca Snyder, executive director of the press association.

Whatever happens in court, we should also discuss whether the law could be amended to meet those First Amendment concerns next year in Annapolis.

Exercising First Amendment Rights

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“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Supreme Court Justice Louis Brandeis wrote that in Whitney v. California.

Jay Bernstein emailed me two weeks ago, disturbed that John Mearsheimer would be speaking at the World Trade Center in the Inner Harbor.  Professor Mearsheimer, Jay wrote, is the co-author of a book that “accuses Jews who support Israel of damaging  American  interests and serving the interests of the Jewish State.”

Three state agencies are corporate members of the group hosting Mearsheimer, the Baltimore Council on Foreign Affairs.  Their support of the Council was very troubling to Jay.

I responded by quoting Brandeis and suggesting that Jay attend the lecture and ask questions about the book or demonstrate outside, instead of having pressure applied to the state agencies.

Jay chose to demonstrate.

Not the end of story.

In the plaza outside the World Trade Center, there is a memorial dedicated  to the sixty-nine citizens of Maryland who died in the terrorist attacks of 9/11.  “All demonstrations and special events are prohibited” in this area, stated the Assistant Attorney General for the Maryland Port Administration, because MPA “has a reasonable and overriding interest in maintaining an atmosphere of calm, tranquility, and reverence on the WTC Plaza.”

The court ruling cited to support this restriction on free speech:  the National Park Service can prohibit any demonstrations or special events from being held inside the Jefferson Memorial.

Jefferson must be rolling over in his memorial, I mused.

Negotiations began between the lawyers for the American Civil Liberties Union of Maryland and the Port Administration.

The day before the planned demonstration, I wrote the ACLU lawyer:

“Are you measuring lines in front of the World Trade Center?  :-)”

“Almost!” he replied.  “They’re proposing a limited area for this demo.  We’re negotiating how large and where.”

Prof. Mearsheimer and Jay Bernstein exercised their 1st Amendment rights last night.

“We gave out 125 leaflets to attendees, engaged many of them in conversation, and definitely made our presence known, which was the whole point,” Jay wrote me.

Still not the end of story.

The Port Administration contends that it can prohibit future demonstrations.

That may result in litigation – or legislation.

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