Democrats took aim at the Trump legal teams expected First Amendment defense, saying it has no basis in the evidence.

Watch Raskins remarks in the player above.

Lead House Impeachment Manager Jamie Raskin argued in the Senate trial that there is a First Amendment defense against the impeachment charge is absurd.

Futher, Raskin said, The First Amendment does not create some superpower immunity from impeachment.

Thursdays session follows the previous days raw and visceral video of last months deadly insurrection.

Though most of the Senate jurors seem to have made up their minds, making Trumps acquittal likely, the never-before-seen audio and video released Wednesday is now a key exhibit in Trumps impeachment trial as lawmakers prosecuting the case argue Trump should be convicted of inciting the siege.

Trump lawyers are expected to will argue Friday that his words were protected by the Constitutions First Amendment and just a figure of speech.

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WATCH: Trump not protected by First Amendment for inciting insurrection, Rep. Raskin says - PBS NewsHour

The response to my column about what to do with police officers who participated in the Trump rally on January 6 was immediate and intense. And whats clear so far is that the dozens of law enforcement agents who traveled to the nations capital that day to support or witness an insurrectionists cause will long be tagged by it. Some may get charged with a crime. Some may be fired. But even those who keep their jobs will face credibility questions for the rest of their professional lives. They will forever be the cops who traveled miles to gleefully participate in a potentially dangerous event based on a monstrous lie.

The gist ofmy February 1 pieceis that there is really only bad news and worse news for these cops. Either they were insurrectionists, in which case they have no right to wear a badge, or they were too foolish to heed all of the warnings about potential violence in Washington that day, in which case they really have no right to wear a badge. What actually happens to these officers, however, turns both on law and local politics or more precisely, the politics of local policing. It figures that it would be harder for a cop to come home from the Trump rally to a blue country than a red county, right? But well see.

The legal answers will come from the text of the First Amendment. Some cops who are fired are going to sue to get their jobs back by saying they were illegally retaliated against for exercising their free speech rights. They will say that even public employees government employees have certain First Amendment rights. They do! But those civil lawsuits will turn on whether the rights of those cops to attend Trumps rally outweigh the interests their police departments have in ensuring public confidence in the competence of officers, including the officers ability to easily distinguish uncontroverted evidence from baseless conspiracy theories.

Thats how the legal case will play out. Whats a little clearer now is what the politics of it will look like. Law enforcement agents who attended the rally and the ensuing riot will be fired, whether or not they are criminally charged. Those officers who attended the rally but left before the riot will likely keep their jobs unless their social media profiles from before the rally, or their comments after it, make it clear they are a discredit to their departments. But even those cops who attended the rally and left before the riot and dont have Facebook walls full of white supremacist junk arent easily going to be able to shake their link to the Capitol riot.

The two most interesting reactions to my piece dovetail together and are worth mentioning. One law enforcement source told me that police officials in some jurisdictions will be willing, if not eager, to fire or discipline officers who were at the rally but not involved in the riot if their participation that day was part of a broader pattern of support for racist causes or sedition. Another source a few actually wondered whether police officials would be scared to look too closely under such rocks given howextensivethe links seem to be between law officers and right-wing groups. I mean, thats the heart of the problem to begin with, isnt it?

We are seeing a form of this situationunfold alreadyin Franklin County, Kentucky, home to the state capital, Frankfort. Jeff Farmer, a sheriffs deputy, proudly attended the Trump rally and now has come home to controversy. Even before the insurrection and coup attempt in Washington, even before the protests last summer in Frankfort over police brutality, Farmers conduct as a cop had attracted the attention of local civil rights leaders and defense attorneys for what they consider misconduct, ranging from use of excessive force to discriminatory practices.

When word got out that Farmer had attended the Trump rally and it wasnt as though he felt he needed to hide the news Franklin County Sheriff Chris Quire was forced to launch an investigation that has roiled the county. On the one side are Farmers many supporters, on the force and in the community, who say hes a good cop who has done a great deal to apprehend drug dealers. On the other side are those who see in Farmers Trump-infused journey to Washington as further proof that his professional judgment, at a minimum, should be called into question. Cops have constitutional rights,remember, but there is no constitutional right to be a cop.

Nathan Goodrich, an attorney who runs the public defenders office in Franklin County, put it well last week in aninterviewwith Jon Schuppe of NBC News. Goodrich has clients whose lives have been directly impacted by Farmers work. The march was based on a lie stop the steal, the election was stolen, Goodrich said. So much of Deputy Farmers work as a detective is determining when people are telling the truth and lying to him. It raises questions about his ability to do his job as a detective when hes engaged in a rally in support of a belief that so many members of the community believe is utterly without support.

Farmers story so far suggests he is hewing to the same line weve seen expressed by cops in several other cases in which theyve been questioned about their roles in Washington on January 6. But Farmers story suggests more, too. During his trip, he documented his arrival with friends on Facebook, and after the siege wrote a post in which he called the rioters idiots and questioned whether they were really Trump supporters. Its that last part that ought to trouble the sheriff and the residents of the county. And if I were Goodrich and company, its that last part Id want to ask Farmer about under oath.

It was beyond a reasonable doubton the day of the riotthat most if not all of the rioters were Trump supporters. That was clear during the rally that preceded the riot, it was clear as the siege was unfolding and we all could see the harrowing images from inside the Capitol, and it was clear in the immediate aftermath of the attack, even before federal law enforcement officials started arresting and prosecuting right-wing extremists involved in the insurrection. For a cop not to see that, or to see it and pretend otherwise, goes to the very heart of what it ought to mean to be a cop: Seek the truth. Follow the evidence. Stay clear of the crap.

I hope that the sheriff is asking tough questions of Farmer in Franklin County. And I hope that Farmer is answering them candidly. The more we hear about the coordination that took place in advance of the riot, the more we hear about all the threats that preceded the rally, the more it becomes clear that no law enforcement agent should have been near that rally that day as a private citizen. Whether Farmer loses his job or not, and today I have no reason to believe that he will, its going to be virtually impossible for him to go back to his pre-riot days. His community will never see him the same way again. Maybe it was all worth it. I would want to know that, too, if I were a public defender.

In the same way that prosecutorskeep lists of police officerstheydont trust to testify, there will now be a new list of cops whose credibility may legitimately be questioned about January 6 if they are ever called as a witness in a future criminal case. Only this list wont be the secret purview of prosecutors and police union officials. It wont be the subject of countless years of litigation. One day very soon (if it hasnt already happened), there will be a crowdsourced, publicly available database containing the names of every law enforcement agent associated in any way with the Trump rally or deadly riot that followed.

That will be a great day. Every cop who believes today that Trump won the election, or who believed it on January 6, should have to answer for that belief all the rest of their days in uniform. They should have to answer it in courtrooms under oath in front of juries. And in conference rooms during sworn depositions. They should have to answer it during public press conferences. It should cast a pall on everything they touch in their professional lives. We talk a lot about police accountability and about how we are going to root conspiracy theories and white supremacy out of law enforcement. Heres one way to begin doing that.

The views expressed are the authors own and not necessarily those of the Brennan Center.

More here:

The Insurrection, Police Accountability, and the First Amendment - brennancenter.org

Social justice movements and conspiracy theories have become a hallmark of our time, but how do we know which inflammatory statements are legally protected and which are not?

Sociology Professor Nella Van Dyke sheds light on the legal and social ramifications of free speech in this Q&A. Van Dyke is an expert on social movements in relation to hate crimes, with recent studies of the movement against sexual assault, college student protest, LGBTQ+ college student experiences and racist hate crimes on campus. Her work has been published in leading journals including Social Forces, Social Problems and the American Sociological Review. She has co-edited two books: Strategic Alliances: Coalition Building and Social Movements and Understanding the Tea Party Movement.

Van Dyke joined UC Merceds sociology department in 2008 and is a founder of the departments undergraduate and graduate programs. She teaches courses in sociological theory, hate crimes, sexuality and statistics.

The Constitution itself does not define free speech, but the First Amendment of the Constitution says Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Because of this, every person in the United States has freedom of speech.

Because of the First Amendment, most speech is protected in the U.S., but not all types.

Speech that threatens another individual, defames their character in a manner that causes damage, is considered obscene, incites violence or creates a hostile environment is illegal.

The goal of hate speech is to silence and exclude. Hate speech is technically legal, unless it occurs in a repeated way in a location which the individual cannot avoid, thus creating a hostile environment, or, if it is directly threatening to the individual who hears it. Note that hate speech can be used as evidence in a hate-crime case. If hate speech occurs during the commission of a crime, it can be used as evidence that the crime was a hate crime, though the speech itself is not illegal.

There is no question that racist and other bigoted speech is harmful to marginalized students and harmful to the university as a whole. The problem, however, is that hate speech is difficult to define. Some colleges have enacted anti-hate speech policies, but ironically, these have almost always ended up being used against the students they were intended to protect.

If we allow authorities to enact laws against hate speech, they may use these laws against those seeking social justice. For example, during the 1800s, many Southern states in the U.S. made it illegal to speak out against slavery because they said it would incite violence. While it is understandable that many members of our community would like to see hate speech banned either on campus or by state or federal governments, these policies are unlikely to hold up in court, and we have to be careful about how much power we give authorities over us.

The courts are very consistent in their rulings on free speech. Decisions and definitions of what speech is allowed do change over time, but not very quickly, and challenges that go against established precedent are not very likely to succeed.

UC Merceds principles of community call for all of us to treat one another with dignity and respect, and to be civil when engaged in dialogue. Therefore, we should all try to avoid speech that dehumanizes, disparages or hurts another person. In terms of what is legal, we have more freedom. Legally, we should avoid threatening a specific individual with harm, trying to get others to commit crimes or acts of violence, or repeatedly using hate speech around an individual or particular group of individuals. However, we can all do better than that by following UC Merceds principles of community and encouraging others to do so.

Only government entities are required to follow the direct limits imposed by the Constitution. Private actors must follow the law, but not the directives described in the Constitution. Public universities must therefore allow free speech, including hate speech. Private institutions, including businesses and private colleges and universities, can enact policies limiting speech, including anti-hate policies. Private citizens can do what theyd like in private (e.g., at home), as long as they obey the law. When they are acting within an institutional space, they must follow the rules of the space. Thus, an individual at a public university has the right to free speech and cannot get penalized for hate speech (unless it includes a direct threat or otherwise breaks the law), while someone on a private college campus could face disciplinary action for hate speech if it violates the campus speech policies.

As a private company, Twitter has the right to decide what content or users it wants to allow. Therefore, legally it had the right to suspend Trumps account. Twitter states that it banned his account because it determined that his tweets violated its policy against the glorification of violence. Twitter decided that his tweets could inspire others to replicate violent acts and determined that they were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on January 6, 2021. Its also possible that Twitter was concerned about liability because it is illegal to provide resources to those aiming to overthrow the U.S. government and it is illegal to participate in inciting violence.

Social media users can do research on the platforms terms of service and posting policies. Users should be aware that even if they have the right to post almost any content, the platforms have algorithms that decide what content to promote. Facebooks algorithm, for example, promotes content that evokes strong emotions, and therefore has been found to amplify conspiracy theories and fake news. Twitter, Facebook and Tiktok have all recently released information about their algorithms in an effort to increase public trust, and users can find these online. Ultimately, Im not sure anyone can be 100 percent certain that their right to free speech is being fully respected, because these are private companies that are not bound by the First Amendment.

Read the rest here:

Q&A: Sociologist with Specialty in Right-Wing Movements on Free Speech and the First Amendment | Newsroom - UC Merced University News

by: Emily Cervarich and Victoria Holmes

GREENVILLE, N.C. (WNCT) Former President Donald Trumps second impeachment trial began in the Senate Tuesday afternoon. It comes just weeks after Joe Biden was sworn in as the 46th President of the United States and the siege on the U.S. Capitol.

Trump was impeached by the House on Jan. 13 on a single charge of inciting insurrection. It focused on a speech the former president made to supporters shortly before the D.C. riot, where five people, including a police officer, died in the chaos.

Now, Democratic House lawmakers will serve as prosecutors, in hopes to persuade Senate members to formally convict the former president. If successful, lawmakers could choose to ban Trump from ever holding public office again. A two-thirds majority out of the 100-member Senate is needed to convict Trump. This means 17 Republicans would need to join all 50 Democrats in the conviction.

In this weeks episode of What The Politics?!, we follow and discuss the former presidents second impeachment trial. We speak with a law and First Amendment expert about the rights laid out in the First Amendment and what they really break down to.

We will also explore how social media has played a role in polarization in regards to free speech. As we follow the second impeachment trial, we will examine the points of both legal teams and how they pertain to the First Amendment to find out if there is truly a solid argument for the prosecution.

Emily and Victoria are joined by Clay Calvert, J.D., Ph.D.. He is a member of both the State Bar of California and the Bar of the Supreme Court of the United States, specializing in First Amendment Law. Calvert is the Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida.

As director, he has filed as counsel of record multiple friend-of-the-court briefs with the United States Supreme Court in cases such as Brown v. Entertainment Merchants Association, Elonis v. United States, and Lozman v. City of Riviera Beach. Calvert received his J.D. with Great Distinction from the University of Pacifics McGeorge School of Law, and then earned a Ph.D. in Communication from Stanford University. Calvert has authored and co-authored over 150 law journal articles on topics related to freedom of expression and the first amendment.

In April of 2017, Calvert presented a talk at TEDxUF called Catching Cops on Camera: A Gray Area. Professor Calvert is also one of the co-author of the market-leading undergraduate media law textbook, Mass Media Law, 20th ed. (McGraw-Hill, 2018). Calverts most notable work is Voyeur Nation (Westview, 2000).

Biography, publications, works, by Clay Calvert: https://www.jou.ufl.edu/staff/clay-calvert/

New episodes of What the Politics?! come every Tuesday. Join the conversation!

We want to hear from you! Send us an email with questions you want to be answered, topics you want to hear and guests youd like brought on. We want you to feel just as much a part of this conversation as we are!

Email either Emily, or Victoria:ECervarich@wnct.com;ViHolmes@wnct.com

OR message us on Twitter: @emily_c_tv ; @VicAntHol

Click here to subscribe onSpotifyand onApple Podcasts.

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What The Politics?! Episode 21: Analyzing the First Amendment - WNCT

According to the logic of a bill currently under consideration in the Missouri House, a churchs religious freedom rights should be overruled since some people may want to show up with a gun. Rep. Ben Baker (R-Newton) argued during a House General Laws Committee hearing Monday (Feb. 8) that a persons natural right to a gun should supersede a religious communitys right to adopt and communicate its beliefs. As a Baptist minister, I find this bill unnecessary, unconstitutional, and dangerous.

Missouri law currently automatically bans concealed weapons from houses of worship unless an individual receives the consent of the minister or person or persons representing the religious organization that exercises control over the place of religious worship. This makes sense. A religious community should be able to define for itself if they desire for individuals to bring guns into their holy place.

But Bakers HB 359 would switch the default position so that individuals with a concealed carry endorsement or permit could automatically bring a firearm into a house of worship unless that religious group posted significant signs at every entry. A church, synagogue, mosque, or other house of worship would not be able to determine its own policy regarding concealed guns without either accepting weapons or posting government-mandated signs on their sacred space.

The Second Amendment should not trump the First Amendment. Some groups hold deep religious convictions that lead them to oppose violence and weapons of any kind. Thus, Missouri legislators should reject a bill that targets those sincerely-held religious beliefs.

Oddly, Bakers bill only attempts to change the status of houses of worship, meaning many other locations would remain places where one cannot bring a concealed weapon without proper consent like a liquor store or a riverboat gambling operation or an amusement park. So, Bakers bill acknowledges by default that limitations on concealed carry do and should exist.

If passed, this bill would give liquor stores, gambling boat operations, and amusement parks more rights than churches to decide about guns on their premises even though houses of worship are protected by the First Amendment more than those entertainment businesses. This targeting of religious communities is wrong.

Theres not even a reason for Bakers bill because people can already bring their concealed weapons into churches. Baker admitted during testimony that he does since his pastor allows it. A member of the committee even said he used to preach from a pulpit with a concealed gun strapped on. If a religious community wishes to allow concealed weapons, they already have that right. And if a house of worship doesnt want weapons in their building, someone who disagrees with that decision is free to worship elsewhere.

The provision in Bakers scheme of allowing a house of worship to ban guns by posting signs actually creates even more problems. Controlling the welcome message that congregations would have to post in prominent locations invites constitutional challenges. In fact, then-St. Louis Catholic Archbishop Robert J. Carlson threatened to sue if a similar bill passed in 2018.

Pastors, rabbis, and religious leaders should not be compelled by the government to place signage in our sacred places prohibiting activity we may not want to allow on our own private property, he said at a press conference with Jewish, Baptist, Episcopalian, Lutheran, Methodist, and other religious leaders.

Despite the overwhelming opposition from faith communities across the state, this bad bill keeps popping back up. Among the 40 people who submitted official testimony against Bakers bill for Mondays hearing were Baptist, Episcopalian, Methodist, and Presbyterian ministers; a Jewish rabbi; a representative from the Missouri Catholic Conference; and several others who identified themselves as a member of a religious congregation. And Ive heard from pastors across the state who find this bill an offensive assault on their rights.

But Baker couldnt name a single denominational group in the state supporting his measure. His faith in guns should not veto the clear public witness of numerous faith leaders. Bakers remedy is clearly worse than the disease that isnt even an ailment.

We have enough real problems for lawmakers to tackle this session without them trying to push guns into houses of worship. So, I pray they will defeat this dangerous bill.

Rev. Brian Kaylor is editor of Word&Way and associate director of Churchnet (a statewide Baptist network of churches).

Read more:

Opinion: Guns shouldn't trump the First Amendment - The Missouri Times

Heres what you need to know:Video

transcript

transcript

Like every other politically motivated witch hunt the left has engaged in over the past four years, this impeachment is completely divorced from the facts, the evidence and the interests of the American people. To claim that the president in any way wished, desired or encouraged lawless or violent behavior is a preposterous and monstrous lie. A small group who came to engage in violent and menacing behavior hijacked the event for their own purposes. This sham impeachment also poses a serious threat to freedom of speech for political leaders of both parties at every level of government. The Senate should be extremely careful about the president, the precedent, this case will set. We heard a lot this week about fight like hell, but they cut off the video before they showed you the presidents optimistic, patriotic words that followed immediately after. Fight like hell, and if you dont fight like hell, youre not going to have a country anymore. Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children and for our beloved country, and I say this despite all thats happened, the best is yet to come. This case, unfortunately, is about political hatred. It has become very clear that the House Democrats hate Donald Trump. This type of political hatred has no place in our political institutions, and certainly no place in the law. This hatred has led the House managers to manipulate and selectively edit Mr. Trumps speech to make it falsely appear that he sought to incite the crowd to violently attack the Capitol. Suddenly, the word fight is off limits? Spare us the hypocrisy and false indignation. Its a term used over and over and over again by politicians on both sides of the aisle. And of course, the Democrat House managers know that the word fight has been used figuratively in political speech forever. But dont take it from me. Its best to listen to them. We are in a fight. We are in a fight. Democrats are fighting as hard as we can. Democrats are standing up to fight. We know how to fight. We like a good fight. Democrats are going to fight like hell. We fight like hell. So why are we here? Politics. Their goal is to eliminate a political opponent. To substitute their judgment for the will of the voters. We will not take most of our time today, us of the defense, in the hopes that you will take back these hours and use them to get delivery of Covid relief to the American people.

Lawyers for Donald J. Trump delivered an incendiary but brief defense of the former president on Friday, calling the Houses charge that he incited an insurrection at the Capitol a preposterous and monstrous lie as they falsely equated his conduct to Democrats own combative rhetoric.

Confident they have enough votes from Republicans to acquit Mr. Trump, the lawyers used only about three of their 16 allotted hours. Their speed allowed senators to complete a period of questioning the prosecution and defense Friday evening and cleared the way for closing arguments and a final verdict, likely on Saturday.

Earlier, the defense team had channeled the former presidents own combative style and embrace of falsehoods to claim, contrary to facts, that Mr. Trump never glorified violence during his presidency and that he consistently called for peace as the rampage at the Capitol unfolded. Showing video clips of Democrats urging their supporters to fight and Mr. Trump venerating law and order, they sought to rewrite not just the narrative of his campaign to overturn the election but that of his entire presidency.

This trial is about far more than President Trump, said Bruce L. Castor Jr., one of the lawyers, as he closed the defense. It is about silencing the speech the majority does not agree with. It is about canceling 75 million Trump voters and criminalizing political viewpoints.

The defenses presentation unfolded after nine House prosecutors spent two days laying out a meticulous case against the former president dramatized with never-before-seen video of the Jan. 6 riot portraying the rampage as the direct result of Mr. Trumps monthslong campaign to overturn the election. Desperate to cling to power, the Democrats argued, Mr. Trump goaded his followers into joining his effort and would do so again, they said, if the Senate failed to convict him and bar him from holding office in the future.

Among the lawyers core arguments were that the Senate lacks jurisdiction to even try a former president now out of office, that Mr. Trumps conduct was protected by the First Amendment and that it came nowhere near the legal definition for incitement.

But standing before a jury of 100 senators, their case was as political in nature as it was legal. Using a favorite tactic of Mr. Trumps, his lawyers also sought to defend his behavior by citing that of others, arguing that he could no more be held responsible for the Capitol assault than Democrats could for the violence that erupted at some racial justice protests last summer.

They also sought to selectively poke holes in Democrats case. Michael van der Veen, one of the lawyers, insisted on Friday that Mr. Trump had only ever been interested in election security reforms, like voter ID laws an assertion that directly contradicted months of public and private actions by Mr. Trump. He said the president intended for the Jan. 6 rally he hosted before the attack to be peaceful, but that it had been hijacked by extremists, including from the far left another claim disproved even by Republicans.

The reality is Mr. Trump was not in any way shape or form instructing these people to fight using physical violence, Mr. van der Veen said. What he was instructing them to do was challenge their opponents in primary elections, to push for sweeping election reforms, to hold big tech responsible all customary and legal ways to petition your government for redress of grievances.

Mr. Castor also pointed to tweets by Mr. Trump while the attack was underway telling his supporters to stay peaceful and support our Capitol Police. But he did not discuss Mr. Trumps actions during the hours when the Capitol was under attack in which managers said he reveled in his success and delayed sending in reinforcements.

We know that the president would never have wanted such a riot to occur, because his longstanding hatred for violent protesters and his love for law and order is on display, worn on his sleeve, every single day that he served in the White House, he said.

Later, during the question and answer session, Mr. van der Veen said Mr. Trump had not been aware that his vice president, Mike Pence, had been in danger, even though a senator he called during the attack told him Mr. Pence was being evacuated from the chamber.

Maggie Haberman contributed reporting.

transcript

transcript

If we do not convict former President Trump, what message will we be sending to future presidents and Congresses? The consequences of his conduct were devastating on every level. Police officers were left overwhelmed, unprotected; Congress had to be evacuated; our staff barricaded in this building, calling their families to say goodbye. And the world watched us. And the world is still watching us to see what we will do this day. And will know what we did this day 100 years from now. Is it not true that under this new precedent, a future House facing partisan pressure to lock her up could impeach a former secretary of state and a future Senate be forced to put her on trial and potentially disqualify from any future office? In this case, we have a president who committed his crimes against the republic while he was in office. He was impeached by the House of Representatives while he was in office. Mr. Raskin cant tell you on what grounds you acquit. If you believe, even though there was a vote, that theres jurisdiction, if you believe jurisdiction is unconstitutional, you can still believe that. If you believe that the House did not give appropriate due process in this, that can be your reason to acquit. It is clear that President Trumps plot to undermine the 2020 election was built on lies and conspiracy theories. How did this plot to unconstitutionally keep President Trump in power lead to the radicalization of so many of President Trumps followers and the resulting attack on the Capitol? What our commander in chief did was the polar opposite of what were supposed to do. We let the people decide the elections. Except President Trump. He directed all of that rage that he had incited to January 6th. Are the prosecutors right when they claim that Trump was telling a big lie? Or in your judgment, did Trump actually win the election? Who asked that? [Sen. Bernie Sanders] I did. My judgment is irrelevant in this proceeding. It absolutely is. Whats supposed to happen here is the article of impeachment is supposed to be [Sen. Patrick Leahy] The Senate will be in order. Whats relevant in this impeachment article is: Were Mr. Trumps words inciteful to the point of violence and riot? Thats the charge. Thats the question. And the answer is no. If the Senates power to disqualify is not derivative of the power to remove a convicted president from office, could the Senate disqualify a sitting president but not remove him or her? Mr. Castro attributed a statement, the time before last that he was up here, that Donald Trump had told his people to fight to the death. Im not from here Im not like you guys I was being very polite and giving him an opportunity to correct the record. And I thought thats exactly what he would do. But instead, what he did is he came up and illustrated the problem with the presentation of the House case. Its been smoke and mirrors, and worse, its been dishonest.

Senators on Friday afternoon opened their first and last window in the trial to directly question the prosecution and defense. But as they submitted questions in writing one by one, most members of the jury appeared more interested in scoring political points than breaking new ground.

Does a politician raising bail for rioters encourage more rioting? read one early question from Senators Lindsey Graham of South Carolina, Ted Cruz of Texas and two other Republicans. It was an apparent reference to Democrats who supported bail funds for people arrested while protesting racial violence this summer.

Bruce L. Castor Jr., one of former President Donald J. Trumps lawyers, gave a one word answer: Yes.

Senator Bernie Sanders, independent of Vermont, asked Mr. Trumps lawyers whether the former presidents big lie was correct when he insisted over and over again that he had won the election. If it was an attempt to force his defense to contradict their client, it did not work.

Who asked that? responded Michael van der Veen, another lawyer for the former president, looking for Mr. Sanders. My judgment? My judgments is irrelevant in this proceeding.

As time ticked by, the former presidents lawyers and the House managers began sniping at each other, too. Mr. van der Veen complained the trial was the most miserable experience Ive had down here in Washington, D.C. and accused Representative Jamie Raskin, Democrat of Maryland and the lead manager, of doctoring evidence.

Mr. Raskin was not pleased. Counsel said before, This has been my worst experience in Washington, he said. For that, I say were sorry, but man you should have been here on Jan. 6.

A short time later, Senator Patrick J. Leahy of Vermont, who was presiding over the trial, gently warned that all parties in this chamber must refrain from using language that is not conducive to civil discourse.

The exception came from a small group of Republican senators openly contemplating conviction. Senators Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah and Bill Cassidy of Louisiana all seemed interested in what Mr. Trump knew about the unfolding riot, when he knew it and what he did about it.

Mr. van der Veen said he could not precisely say when Mr. Trump learned about the attack, but he blamed it on the Democratic managers for building their impeachment on hearsay on top of hearsay on top of hearsay rather than a thorough investigation.

We have a tweet at 2:38 p.m., so it was certainly sometime before then, he said.

When Mr. Romney and Ms. Collins pressed the lawyers on Mr. Trumps specific knowledge of the threat to his vice president, Mike Pence, the answer was clearer, but it appeared to contradict the word of Senator Tommy Tuberville, Republican of Alabama, who told reporters this week he informed the president that the vice president was being evacuated from the Senate chamber during a contemporaneous phone call.

The answer is no, said Mr. van der Veen. At no point was the president informed that the vice president was in any danger.

Democrats scoffed, and argued that any weaknesses in their evidentiary record was the fault of Mr. Trump, who refused an invitation to testify.

Rather than yelling at us and screaming about how we didnt have time to get all the facts about what your client did, bring your client up here and have him testify under oath, Mr. Raskin said.

transcript

transcript

The House managers spoke about rhetoric, about a constant drumbeat of heated language. Well as Im sure everyone watching expected, we need to show you some of their own words. I just dont know why there arent uprisings all over the country. Maybe there will be. There needs to be unrest in the streets for as long as there is unrest in our lives. Weve got to be ready to throw a punch. We have to be able to throw a punch. Donald Trump, I think you need to go back and punch him in the face. Please get up in the face of some Congresspeople. People will do what they do. I want to tell you Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay a price. If you had to be stuck in an elevator with either President Trump, Mike Pence or Jeff Sessions, who would it be? Does one of us have to come out alive. Im just going to keep the fight up. What we have to do right now is fight as hard as we can. We have to rise up and fight back. And so, were going to fight. And were going to continue to fight. I am going to be fighting fighting like hell. Keep fighting, fighting, fighting we kept fighting, and we did. So were going to keep fighting. Never, never, never give up this fight. Im a citizen fighting for it Means not only fighting As a leader who fought for progressive change As a lawyer who fought for people his whole life As well as other fights, and Im proud to have Tim in this fight.

Former President Donald J. Trumps defense team offered their own video presentation on Friday a montage of remarks by Democrats urging supporters to fight a rhetorical drumbeat aimed at countering the impact of the footage of the real fight at the Capitol, images of blood and broken glass, presented by the prosecution on Wednesday.

The strategy by Mr. Trumps lawyers was to prove that Mr. Trumps call for his followers to fight like hell in a speech shortly before members of the crowd stormed Congress on Jan. 6 was no different than anti-Trump remarks made by Speaker Nancy Pelosi of California, Representative Maxine Waters of California, Senator Elizabeth Warren of Massachusetts and other members of Congress.

To make their point, the team played a lengthy mash-up of bellicose statements from Democrats including President Bidens claim on the campaign trail that he would have beaten the hell out of Mr. Trump in high school.

The presentation, featuring quick-cut editing and the type of ominous music often heard in negative campaign ads, a sharp contrast to the raw footage, sometimes silent, of the attack that was compiled by the House impeachment managers from security cameras and cellphone video, and accompanied by a minute-by-minute timeline.

The defense teams montage concluded with images of Democrats praising the protests against police violence in cities across the United States last summer, juxtaposed with video of rioting, even though every senior Democrat denounced violence.

I showed you the video because in this political forum, all robust speech should be protected, said Michael van der Veen, one of the presidents lawyers.

When you see speech such as this, you have to apply the First Amendment evenly. Blindly, he said, adding, She is blind, lady justice.

It reflected the argument being promoted by Trump defenders on conservative media outlets like Fox News, and was part of an effort to offer a more defiant defense pushed by the former president, who was dissatisfied with the earlier efforts of his team.

It is not clear that the approach had its desired effect, however.

During the presentation, senators in both parties were overheard chatting and laughing by observers in the chamber. Democrats emerged enraged at what they saw as an argument built upon false equivalence.

Show me anytime that the result was our supporters pulled someone out of the crowd, beat the living crap out of them and then we said: Thats great. Good for you. Youre a patriot, Sen. Chris Coons of Delaware said after watching the video.

Yet the approach might have succeeded in giving Republicans caught between their disdain for Mr. Trumps behavior and fear of his hold over the party enough cover to justify an acquittal.

The Twitter/CNN/MSNBC bubble will mock & dismiss this defense, but it is going to work with Republican voters and it will give much needed cover and justification to Republican Senators to acquit, said Joe Walsh, a former Republican congressman and frequent Trump critic, on Twitter during the defenses arguments.

As the Capitol was being infiltrated by a mob last month, what did President Donald J. Trump know about Vice President Mike Pences whereabouts and when did he know it?

That was a question multiple senators were intent on learning more about Friday evening, during a period in the impeachment trial in which senators questioned the House impeachment managers and Mr. Trumps lawyers.

At issue was not only when Mr. Trump took any steps to help end the riot, but also a tweet he posted that day at 2:24 p.m. as rioters had breached the Capitol and Mr. Pence was being rushed out of the Senate chamber.

The vice president didnt have the courage to do what should have been done to protect our Country and our Constitution, Mr. Trump tweeted.

Senator Mitt Romney asked early in the question-and-answer session: When President Trump sent the disparaging tweet at 2:24 p.m. regarding Vice President Pence, was he aware that Vice President Pence had been removed from the Senate by the Secret Service for his safety?

No, Michael van der Veen, one of Mr. Trumps lawyers, said bluntly. At no point, he continued, was the president informed that the vice president was in any danger.

The Democratic House managers, who are serving as prosecutors in the trial, argued that Mr. Trump had to know what was going on at the time of his tweet. The whole world knew it, all of us knew it, said Representative Joaquin Castro, Democrat of Texas. Live television had by this point shown that the insurgents were already inside the building, and that they had weapons and that the police were outnumbered.

The answer also appeared to contradict statements from Senator Tommy Tuberville, Republican of Alabama. Mr. Tuberville told reporters this week about a cellphone call he had with Mr. Trump as the Senate was being evacuated. Well, I mean, I dont know if youve ever talked to President Trump, he said. You dont get many words in, but, uh, he didnt get a chance to say a whole lot because I said, Mr. President, they just took the vice president out, Ive got to go.

The timestamp on Mr. Trumps tweet about Mr. Pence lacking courage shows it was sent about 10 minutes after Mr. Pence was evacuated from the chamber.

The Democratic House managers noted Mr. Tubervilles remarks in their answer to Mr. Romneys question. Later in the evening, Senator Bill Cassidy, Republican of Louisiana, brought them up again, asking if Mr. Tubervilles account shows Mr. Trump was tolerant of the intimidation of Vice President Pence.

Both sides largely reiterated their arguments.

But Mr. Trumps lawyer also argued that whatever Mr. Trump knew about Mr. Pences whereabouts was irrelevant to the charge against him, incitement of insurrection. Other legal analysts might be dubious of that argument. If Mr. Trump was aware of his vice presidents imminent danger, it would conceivably bear on Mr. Trumps intentions.

On the eve of a verdict in Donald J. Trumps Senate trial, one of the 10 Republicans who voted to impeach him confirmed on Friday night that the top House Republican, Representative Kevin McCarthy, told her that the former president had sided with the mob during a phone call as the Jan. 6 Capitol attack unfolded.

In a statement on Friday night, Representative Jaime Herrera Beutler, Republican of Washington, recounted a phone call relayed to her by Mr. McCarthy of California, the minority leader, in which Mr. Trump was said to have sided with the rioters, telling the top House Republican that members of the mob who had stormed the Capitol were more upset about the election than you are.

She pleaded with witnesses to step forward and share what they knew about Mr. Trumps actions and statements as the attack was underway.

To the patriots who were standing next to the former president as these conversations were happening, or even to the former vice president: if you have something to add here, now would be the time, Ms. Herrera Beutler said in the statement.

Her account of the call between Mr. McCarthy and Mr. Trump, first reported by CNN, addressed a crucial question in the impeachment trial: what Mr. Trump was doing and saying privately while the Capitol was being overrun.

Ms. Herrera Beutler said that Mr. McCarthy had relayed details of his phone call with Mr. Trump to her. She has been speaking publicly about it for weeks, including during a virtual town hall on Monday with constituents, and she recounted their conversation again in the statement on Friday.

A spokesman for Mr. McCarthy did not reply to a request for comment. Spokespeople for the House impeachment managers did not immediately reply to a request for comment.

The Republican leaders response to Mr. Trump in the weeks since the attack on the Capitol has fluctuated. On the day of the Houses impeachment vote, he said Mr. Trump bore some responsibility for the attack because he had not denounced the mob, but he has since backtracked and sought to repair his relationship with the former president.

By Ms. Herrera Beutlers account, Mr. McCarthy called Mr. Trump frantically on Jan. 6 as the Capitol was being besieged by thousands of pro-Trump supporters trying to stop Congress from counting Electoral College votes that would confirm his loss.

She said Mr. McCarthy asked him to publicly and forcefully call off the riot.

Mr. Trump replied by saying that antifa, not his supporters, was responsible. When Mr. McCarthy said that was not true, the former president was curt.

Well, Kevin, I guess these people are more upset about the election than you are, he said, according Ms. Herrera Beutlers account of what Mr. McCarthy told her.

Hours after the assault began, Mr. Trump tweeted a video in which he asked those ransacking the Capitol to leave. Go home. We love you. Youre very special, he said.

A core argument of Mr. Trumps defense, made by Michael van der Veen, one of his lawyers, is that Mr. Trump cannot be convicted of inciting an insurrection because everything he said was protected by his rights to free speech under the Constitution.

Mr. van der Veen who is a personal injury lawyer, not a civil liberties lawyer dismissed a letter signed last week by 144 constitutional scholars and First Amendment lawyers from across the political spectrum, who called a free speech defense of Mr. Trump legally frivolous and not grounds for dismissing the charge against him.

Nonetheless, Mr. van der Veen argued, Mr. Trumps speech deserves full protection under the First Amendment. He cited Supreme Court cases holding that elected officials can engage in political speech.

Adam Liptak, who covers the Supreme Court for The New York Times, addressed the argument in a live analysis.

Its true, of course, that elected officials have First Amendment rights, Mr. Liptak wrote. Its also true that government officials may be fired for making statements that would otherwise be protected political speech. An impeachment trial may present that second sort of question.

Mr. Liptak quoted from the House impeachment managers brief that addressed the First Amendment argument advanced by Mr. Trumps lawyers: Under President Trumps view of the First Amendment, even a sitting President who strenuously urged States to secede from the Union and rebel against the federal government would be immune from impeachment.

FACT CHECK

Donald J. Trumps lawyers, mounting their defense of the former president on Friday, made a number of inaccurate or misleading claims about the Jan. 6 siege of the Capitol, Mr. Trumps remarks and the impeachment process itself. Here are some of them.

Michael van der Veen, one of the lawyers, misleadingly said that Mr. Trump did not express a desire that the joint session be prevented from conducting its business but rather the entire premise of his remarks was that the democratic process would and should play out according to the letter of the law. But Mr. Trump repeatedly urged former Vice President Mike Pence to send it back to the States to recertify and noted that he was challenging the certification of the election.

Far from promoting insurrection of the United States, the presidents remarks explicitly encouraged those in attendance to exercise their rights peacefully and patriotically, Mr. van der Veen said. Mr. Trump used the phrase peacefully and patriotically once in his speech, compared to 20 uses of the word fight.

Mr. van der Veen also claimed that one of the first people arrested in connection with the riots at the Capitol was the leader of antifa. That was a hyperbolic reference to John E. Sullivan, a Utah man who was charged on Jan. 15 for violent entry and disorderly conduct. Mr. Sullivan, an activist, has said he was there to film the siege. He has referred to antifa a loose collective of antifascist activists that has no leader on social media, but he has repeatedly denied being a member of the movement, though he shares its beliefs.

The Federal Bureau of Investigation has said there is no evidence that supporters of the antifa movement had participated in the Jan. 6 siege.

Mr. van der Veen equated the Jan. 6 siege to the protests at Lafayette Square in front of the White House last summer, and presented a false timeline, claiming that violent rioters repeatedly attacked Secret Service officers and at one point, pierced a security wall, culminating in the clearing of Lafayette Square.

There was no breach. Law enforcement officials began clearing Lafayette Square after 6 p.m. on June 1, to allow Mr. Trump to pose, while holding a Bible, in front of a church near the square. Additional security fencing was installed after those events, according to local news reports and the National Park Service.

Similarly, Mr. van der Veen compared Mr. Trumps complaints and political language about the 2020 election with concerns about the integrity of the 2016 election, arguing that the entire Democratic Party and national news media spent the last four years repeating without any evidence that the 2016 election had been hacked. But American intelligence agencies concluded years ago that Russia tried to interfere in the 2016 election. The Republican-led Senate agreed last year that Russia disrupted that election to help Mr. Trump.

David Schoen, another lawyer, misleadingly claimed that the House held on to the article of impeachment until Democrats had secured control over the Senate and Representative Clyburn made clear they had considered holding the articles for over 100 days to provide President Biden with a clear pathway to implement his agenda.

In fact, Democrats had considered delivering the article to the Senate earlier, almost immediately after it was approved, but Senator Mitch McConnell, then the majority leader, precluded the possibility of an immediate trial in a letter informing Republican lawmakers that the Senate was in recess and may conduct no business until January 19. Mr. Clyburn made his suggestion of withholding the article even longer, after Mr. McConnell had sent his letter.

Mr. Schoen also accused Democrats of presenting a manufactured graphic, referring to a New York Times photo of Representative Jamie Raskin, Democrat of Maryland and the lead impeachment manager, looking at a computer screen. The screen featured an image of a tweet Mr. Trump shared stamped with an erroneous date. Left unsaid was that the image was recreated because Mr. Trump has been banned from Twitter and House managers could not simply show the retweet itself. Mr. Schoen then acknowledged that House managers fixed the incorrect date before presenting the graphic during the trial.

Mr. Schoen complained once again that the impeachment did not afford Mr. Trump due process a point Mr. Trumps lawyers and supporters had previously argued during his first impeachment, and a point law scholars had dismissed.

There are no enforceable rights to due process in a House inquiry, and while those rights exist in the Senate trial, they are limited, said Frank O. Bowman III, a law professor at the University of Missouri and an expert on impeachment. Former President Andrew Johnson, for example, was impeached by the House before it even drew up the articles.

Fani T. Willis, the top prosecutor in Fulton County, Ga., is targeting former President Donald J. Trump and a range of his allies in her newly announced investigation into election interference.

Ms. Willis and her office have indicated that the investigation, which she revealed this week, will include Senator Lindsey Grahams November phone call to Brad Raffensperger, Georgias secretary of state, about mail-in ballots; the abrupt removal last month of Byung J. Pak, the U.S. attorney for the Northern District of Georgia, who earned Mr. Trumps enmity for not advancing his debunked assertions about election fraud; and the false claims that Rudolph W. Giuliani, the presidents personal lawyer, made before state legislative committees.

An investigation is like an onion, Ms. Willis told The New York Times in an interview. You never know. You pull something back, and then you find something else.

She added, Anything that is relevant to attempts to interfere with the Georgia election will be subject to review.

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Highlights of Day 4 of the Trump Impeachment Trial - The New York Times

By Noah Feldman / Bloomberg Opinion

The extended trial brief filed by Donald Trumps lawyers advances three defenses: that Trump did not incite the Jan. 6 attack on the Capitol; that the Senate cant try a president who is no longer in office; and that the First Amendment protects Trump from being impeached for words that, they say, dont meet the requirements for criminal incitement conviction laid down by the Supreme Court.

The factual defense is highly unconvincing, as anyone who watched Trumps speech on Jan. 6 and saw the attack can attest.

The argument that the Senate lacks jurisdiction over a president who is out of office is disproven by history and Senate precedent.

The free speech argument is also wrong in a basic sense: The First Amendment prohibits Congress from making any law abridging freedom of speech. But this doesnt apply in impeachments any more than the Sixth Amendment right to a jury trial would apply to the Senate impeachment trial.

Yet the First Amendment defense requires deeper engagement than the other two, if only because it is less absurd. If it did apply to impeachments, the Supreme Courts incitement jurisprudence contained in the famous 1969 case of Brandenburg v. Ohio probably would have protected Trumps speech.

The major component of Trumps argument is that the First Amendment applies to elected officials. As the lawyers put it only a little ungrammatically, the fatal flaw of the Houses arguments is that it seeks to meet out governmental punishments impeachments based on political speech that falls squarely within broad protections of the First Amendment.

To support their argument, Trumps lawyers cite Wood v. Georgia and Bond v. Floyd. Both are important Supreme Court cases, but neither proves that the First Amendment should apply to impeachment.

The 1962 Wood case arose when a local Georgia judge impaneled a grand jury and charged it to investigate supposedly suspicious block voting by African-American citizens. (Think of it as a precursor to todays false allegations of election scams, but in the context of the civil rights movement.)

While the grand jury was sitting, the local sheriff denounced the whole charade, telling the press that Whatever the Judges intention, the action will be considered one of the most deplorable examples of race agitation to come out of Middle Georgia in recent years . This action appears either as a crude attempt at judicial intimidation of negro voters and leaders or, at best, as agitation for a negro vote issue in local politics. The judge responded by holding the sheriff in contempt of court.

In an opinion by Chief Justice Earl Warren (not Justice William Brennan, as Trumps lawyers say), the court held that the contempt order violated the sheriffs free speech rights. The statement hadnt interfered with the sheriffs performance of his duties, the court explained, and added, The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.

This decision was about a judicial act the contempt order that would have imprisoned the sheriff. It had nothing to do with impeachment. It certainly shows that public officials possess First Amendment rights. Trump does, too. But that means only that he cant be criminally prosecuted for protected speech, not that he cant be impeached for inciting the Capitol attack.

The Bond case, in 1966, involved an attempt by the Georgia legislature to refuse to seat the civil rights activist Julian Bond when he was elected to that body. The legislature claimed that, because Bond opposed the Vietnam War and the draft, he could not have sincerely taken his oath to support the Constitution and laws of the United States. In another opinion by Chief Justice Warren (also misidentified by Trumps lawyers as Justice Brennan), the court explained that free speech applies not only to the citizen-critic but also to an elected legislator.

The ruling that the Georgia legislature could not keep Bond from taking office does not suggest that the First Amendment prohibits impeachment for Trumps incitement. The Georgia legislature wasnt impeaching Bond. It was making up a reason to exclude him from serving in the first place; conduct outside the bounds of its authority.

Apart from the moral outrageousness of comparing Donald Trump to Julian Bond, the citation seems meant to create a supposedly liberal argument for applying the First Amendment to Trump. (Maybe thats also why Trumps lawyers wanted to invoke Justice Brennan, even though he didnt write either of the opinions.)

That effort is unavailing, or should be. A robust commitment to free speech doesnt require protecting from impeachment a president who uses words in an attempt to destroy the democratic process.

Had Trumps lawyers been more forthright, they might have argued that, although the letter of the Constitution allows Trump to be impeached, the Senate should apply the spirit of the First Amendment to the case, and therefore take into account the Brandenburg definition of incitement. That argument would at least have been constitutionally respectable.

Even then, the House managers would have a good answer: that Trump violated the spirit of the Brandenburg rule by encouraging the attack on the Capitol. The former president probably couldnt be punished criminally for what he said on Jan. 6. But for the high crime of trying to break democracy, he can and should be barred from running for office again.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast Deep Background. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include The Three Lives of James Madison: Genius, Partisan, President.

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Comment: Trump's lawyers have it wrong on First Amendment, too | HeraldNet.com - The Daily Herald

On Saturday, the Senate voted 57-43 to acquit former President Donald Trump on the single article of impeachment for inciting the insurrection at the Capitol. Without polling the senators individually, we cant know exactly what prompted the 43 Republicans to vote against holding Trump accountable. But in the weeks and months ahead, we may hear free speech used often as an excuse for acquittal.

Impeachment lawyers for Trump closed their defense by arguing, in large part, that his speech on the Ellipse on the morning of Jan. 6 is protected First Amendment speech. They conclude, as a result, that he cannot be impeached. This is incorrect. The First Amendment isnt a defense to impeachment proceedings, like it could be to criminal charges. Even if it did, Trump wouldnt be entitled to it.

The First Amendment isnt a defense to impeachment proceedings, like it could be to criminal charges. Even if it did, Trump wouldnt be entitled to it.

The First Amendment can be offered as a defense to prosecution in a criminal case. If youre indicted and an element of the alleged crime includes an exercise of your First Amendment rights, then you may have a defense that prevents your conviction. But that defense only goes so far.

Thats what happened in Brandenburg v. Ohio, a 1969 case where an Ohio Ku Klux Klan leader was convicted on state charges of inciting violence. A small group assembled at a farm, after inviting members of the press to film them. They claimed to be members of groups from across the country who would march on Congress at a later date because We're not a revengent organization, but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.

The U.S. Supreme Court reversed the conviction, noting that there was a difference between advocating the need for violence in the abstract and preparing a group for violent action and steeling it to such action. A conviction could only be had, the court concluded, if the advocacy for violence was directed to incite or produce imminent lawless action and was also likely to incite or produce such action.

So, when the government prosecutes a citizen for a crime, mere advocacy is not enough, that is conduct that falls within the First Amendment. Incitement to imminent lawless action breaks through the barrier of free speech and subjects the individual to criminal prosecution.

But, and heres where Trumps First Amendment defense falls apart, impeachment is not a criminal proceeding. Trump was not charged with a federal crime, nor was he subject to imprisonment upon conviction. Impeachment is meant to do something else, it is meant to hold a president accountable when he fails to uphold his oath of office. Alexander Hamilton explained in Federalist 65 that impeachment concerns those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

The article of impeachment against Trump did not charge him with a violation of the federal criminal code. Instead, it charged that he "willfully made statements that, in context, encouraged and foreseeably resulted in lawless action at the Capitol, a high crime and misdemeanor. Presidents can engage in behavior that while lawful is so egregious an abuse of the public trust as to be impeachable. If a president decided to wear a Camp Auschwitz shirt like the one worn by a member of the mob that attacked the Capitol, it would be legal for him to do so. But it would also warrant immediate impeachment.

Because an impeachment proceeding is not a criminal prosecution, the First Amendment doesnt provide Trump with a defense here. A group of over 100 constitutional law scholars from across the political spectrum analyzed the issues and concluded that any First Amendment defense raised by Trump would be legally frivolous because a president can be impeached for lawful acts. Trump might be able to raise a First Amendment defense if he were subsequently prosecuted criminally, but it is no defense to the charge leveled against him in impeachment: that he violated his oath of office.

Trumps lawyers contorted two Supreme Court cases, Wood v. Georgia and Bond v. Floyd, to suggest the First Amendment applies to impeachment. While these cases involve elected officials, they dont involve impeachment and fail to lend any support to the argument Trumps arguments.

Thats really the end of the inquiry. If you want, you can stop reading here. But because lawyers like to argue in the alternative, ruling out all the possibilities, well take it a step further, for the sake of argument.

Thats really the end of the inquiry. If you want, you can stop reading here.

What if the First Amendment did apply to impeachment proceedings? Would it provide Trump with a defense in that case?

Here, the answer is still no. Even if the First Amendment applies to impeachment proceedings, Trumps conduct on Jan. 6 goes beyond what it protects. There are limits. The First Amendment doesnt protect yelling fire in a crowded movie theater. Nor does it protect an imminent incitement to lawless behavior. Trumps exhortations to the crowd on Jan. 6 fall into that later category of unprotected speech and could form the basis for impeachment, even if First Amendment protections were extended to those proceedings.

Thats because his speech fails the test in Brandenburg v. Ohio. Trumps rally ahead of the Capitol riot was unlike that case, where a conviction was reversed because the allegedly inciting speech happened before a small group of people on a farm and was about possible future action. Trump, after spending months undercutting peoples confidence in the integrity of the election, told his followers Jan. 6 would be wild and the chance to takeback what he claimed was a stolen election before Congress could certify it for Joe Biden. Then, on Jan. 6, he assembled thousands of people, including groups like the Proud Boys with a reputation for violence. And after telling them they were going to have to fight like hell if they wanted to keep their country, he unleashed them on the Capitol. As Rep. Madeleine Dean, D-Penn., one of the House impeachment managers said, there was only one fight left at this point: physically preventing Congress from certifying the vote.

The context and course of conduct overwhelmingly establish that Trump both intended to incite imminent lawless action and that his conduct was likely to incite such action. That means his speech falls outside of the First Amendments protection. Had he not intended to produce lawless actions, his reaction would have been horror over the attack on the Capitol, not delight followed by a reluctant and half-hearted entreaty hours later to the mob to go home. Trump encouraged an imminent attack on the Capitol by a mob that was primed to carry it out. So even if the First Amendment could apply to an impeachment setting, it would not apply to Trumps case.

Lead House impeachment manager Rep. Jamie Raskin, D-Md., a constitutional law professor before he became a member of Congress, noted during the proceedings that the First Amendment does not create some superpower immunity from impeachment for a president who attacks the Constitution in word and deed while rejecting the outcome of an election he happened to lose. Trumps lawyers efforts to turn it into a superpower fell well short of the mark. Their tortured reading of legal precedent may have played well to their audience of one and his supporters, but Republican senators do the country an extraordinary disservice by making it permissible for a president who has lost an election to engage in conduct designed to hold onto power by invoking the First Amendment.

Our country will be barely recognizable if future presidents can lie about the integrity of our election process, claim they won after the courts and independent state election processes confirm they lost, and then assemble a mob and instruct it to interfere with the peaceful transfer of power. And the senators who bought Trumps First Amendment fallacy have given future presidents permission to try to succeed where Trump failed.

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Trump acquitted in Senate impeachment trial that hinged on free speech fallacy - MSNBC

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Reporter's Notebook: Analyzing the first amendment WNCT - WNCT

Twitters banning of Trump an action also taken by other social media platforms, including Facebook, Instagram, YouTube and Snapchat has opened a fierce debate about freedom of expression and who, if anyone, should control it in the United States.

Ive written and taught about this fundamental issue for decades. Im a staunch proponent of the First Amendment.

Yet Im perfectly OK with Trumps ban, for reasons legal, philosophical and moral.

To begin, its important to point out what kind of freedom of expression the First Amendment and its extension to local government via the Fourteenth Amendment protect. The Supreme Court, through various decisions, has ruled that the government cannot restrict speech, the press and other forms of communications media, whether its on the internet or in newspapers.

Twitter and other social media platforms are not the government. Therefore, their actions are not violations of the First Amendment.

But if were champions of freedom of expression, shouldnt we nonetheless be distressed by any restriction on communication, be it via a government agency or a corporation?

I certainly am. Ive called nongovernmental suppressions of speech to be violations of the spirit of the First Amendment.

Every time CBS bleeps a performance of a hip-hop artist on the Grammys, the network is, in my view, engaging in censorship that violates the spirit of the First Amendment. The same is true whenever a private university forbids a peaceful student demonstration.

These forms of censorship may be legal, but the government often lurks behind the actions of these private entities. For example, when the Grammys are involved, the censorship is taking place out of fear of governmental reprisal via the Federal Communications Commission.

So, why, then, am I OK with the fact that Twitter and other social media platforms took down Trumps account? And, while were at it, why am I fine with Amazon Web Services removing the Trump-friendly social media outlet Parler?

First, a violation of the spirit of the First Amendment is never as serious as a violation of the First Amendment itself.

When the government gets in the way of our right to freely communicate, Americans only recourse is the U.S. Supreme Court, which all too often has supported the government wrongly, in my view.

The courts 1919 clear and present danger and 1978 seven dirty words decisions are among the most egregious examples of such flouting of the First Amendment. The 1919 decision qualified the crystal-clear language of the First Amendment Congress shall make no law with the vague exception that government could, in fact, ban speech in the face of a clear and present danger. The 1978 decision defined broadcast language meriting censorship with the even vaguer indecency.

And a government ban on any kind of communication, ratified by the Supreme Court, applies to any and all activity in the United States period until the court overturns the original decision.

In contrast, social media users can take their patronage elsewhere if they dont approve of a decision made by a social media company. Amazon Web Services, though massive, is not the only app host available. Parler may have already found a new home on the far-right hosting service Epik, though Epik disputes this.

The point is that a corporate violation of the spirit of the First Amendment is, in principle, remediable, whereas a government violation of the First Amendment is not at least not immediately.

Second, the First Amendment, let alone the spirit of the First Amendment, doesnt protect communication that amounts to a conspiracy to commit a crime, and certainly not murder.

I would argue that its plainly apparent that Trumps communication whether it was suggesting the injection of disinfectant to counteract COVID-19 or urging his supporters to fight to overturn the election repeatedly endangered human life.

Given that Trump was still president albeit with just a few weeks left in office when Twitter banned him, that ban was, indeed, a big deal.

Jack Dorsey, co-founder and CEO of Twitter, appreciated both the need and perils of such a ban, tweeting, This moment in time might call for this dynamic, but over the long term it will be destructive to the noble purpose and ideals of the open internet. A company making a business decision to moderate itself is different from a government removing access, yet can feel much the same.

In other words, a company that violates the spirit of the First Amendment can feel much the same to the public as government actually violating the First Amendment.

To be sure, I think its concerning that a powerful cohort of social media executives can deplatform anyone they want. But the alternative could be far worse.

Back in 1998, many were worried about the seeming monopolistic power of Microsoft. Although the U.S. government won a limited antitrust suit, it declined to pursue further efforts to break up Microsoft. At the time, I argued that problems of corporate predominance tend to take care of themselves and are less powerful than the forces of a free marketplace.

Sure enough, the preeminent position of Microsoft was soon contested and replaced by the resurgence of Apple and the rise of Amazon.

Summoning the U.S. government to counter these social media behemoths is the proverbial slippery slope. Keep in mind that the U.S. government already controls a sprawling security apparatus. Its easy to envision an administration with the ability to regulate social media not wielding that power to protect the freedoms of users but instead using it to insulate themselves from criticism and protect their own power.

We may grouse about the immense power of social media companies. But keeping them free from the far more immense power of the government may be crucial to maintaining our freedom.

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I'm a First Amendment scholar and I think Big Tech should be left alone - The Conversation US

While fervent followers of President Donald Trump screamed foul and free speech when Twitter, Facebook, and other social media banned the president, they need to realize the First Amendment doesn't apply to private businesses.

Only the government grants free-speech rights through the Constitution. The First Amendment has no more power to grant anyone a Twitter handle than the Second Amendment requires a gun company to sell you a gun.

The First and Second amendments specify instead that, with a few exceptions, anyone can speak their mind and any law-abiding citizen can buy a gun. It guarantees those freedoms so government cannot take away your right to speak. That doesn't include compelling a private company to provide you with speaking "tools" like a Twitter or Facebook account.

The First Amendment does guarantee many variations of free speech. Under the First Amendment, the government, for example, could not prevent you from setting up a soapbox on a street corner and speaking your mind. It could not prevent you from distributing flyers or speaking at a public forum in a public place. The government cannot stop you from marching in a parade and carrying a sign.

The First Amendment even protects symbolic speech like burning a flag or kneeling while the national anthem is played. And the First Amendment has been invoked in recent years to protect "political speech" in the form of campaign contributions. Limits on contributions were ruled unconstitutional under the Citizens United case because the campaign donations constituted "political speech."

But when it comes to private companies like a newspaper or television station or social-media platform, the sovereignty of the stockholders rules. Investors in Twitter cannot be compelled to provide their service to everyone. It simply doesn't work that way.

If you think this is unfair, we can point to people to blame. Some 35 years ago, private broadcasters were required under the federal "fairness doctrine" to provide "equal time" for opposing political viewpoints. But you know what happened? Free-market Republicans like President Ronald Reagan and his cohorts did away with the fairness doctrine, figuring the market would determine who gets political speech and airtime.

So we got what we asked for: smaller government and less fairness.

If President Trump wants to use Twitter for his commentary and communication to his fans, he would be well advised to do something he says he's good at: Make a deal with Twitter. But the First Amendment cannot be invoked here. It doesn't apply.

The Free Press, Mankato, Minnesota

Read the rest here:

Other View: First Amendment doesn't apply to Twitter, Facebook - Duluth News Tribune

Say that a state creates a law that protects speech more than the First Amendment does; for instance, say that the state law protects speakers against retaliation or exclusion by

And say that Congress preempts that state law, for instance allowing the private entities to restrict speech on their property (or by their employees or students).

Could that federal law potentially violate the First Amendment, even though it doesn't actually forbid speech, but simply empowers private entities to do so?

Vivek Ramaswamy's and Jed Rubenfeld's Jan. 11 Wall Street Journal op-ed suggests the answer is yes; and on reflection, I think there is a good argument for a version of that position, though I'm not sure whether I'm persuaded by it myself. I'd therefore like to lay out in this post what I think is the best argument inspired by their claims, though not one that necessarily agrees with them in all details.

[1.] Let us begin with a precedent. (Remember, "law is the only discipline in which 'that's an original idea' is a pejorative.") In 1943, Nebraska enacted a state constitutional provision that provided that employers and unions can't require employees to join unions. In the Railway Labor Act of 1951, Congress preempted such state statutes, allowing (but not requiring) railroad employers and railroad unions to demand union membership as a condition of employment. Employees sued a railroad and a union under the Nebraska state provision for imposing such a "closed shop" contract. The defendants raised the federal Act as a defense, arguing that it preempted the state provision.

The U.S. Supreme Court (Railway Employes v. Hanson (1956)) concluded that the Railway Labor Act's preemption of state law needed to be evaluated under the First Amendment:

The union shop provision of the Railway Labor Act is only permissive. Congress has not compelled nor required carriers and employees to enter into union shop agreements. [But we agree with] the view that justiciable questions under the First and Fifth Amendments were presented since Congress, by the union shop provision of the Railway Labor Act, sought to strike down inconsistent laws in 17 States. [We agree that] "Such action on the part of Congress is a necessary part of every union shop contract entered into on the railroads as far as these 17 States are concerned for without it such contracts could not be enforced therein."

If private rights [presumably rights secured by the Nebraska no-closed-shop provision] are being invaded, it is by force of an agreement made pursuant to federal law which expressly declares that state law is superseded. In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed. The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates, though it takes a private agreement to invoke the federal sanction.

The Court concluded that the Act was substantively consistent with the First Amendment, because mere "compulsory membership" in a union does not necessarily "impair freedom of expression," in part because "Congress endeavored to safeguard against that possibility by making explicit that no conditions to membership may be imposed except as respects [the payment of union dues] . If other conditions are in fact imposed, or if the exaction of dues is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case." And in Machinists v. Street (1961), the Court did suggest that the First Amendment would bar spending compulsory union dues collected under the Act "for political causes which [the coerced employee] opposes," though the Court avoided that constitutional problem by reading the statute to prohibit such exactions of dues for political purposes.

Now Will Baude and I (and others) have argued that in fact the First Amendment inquiry here was substantively misplaced, and coercive contributions that are used for political causes are generally not unconstitutional. But this specific detail (on which the Court has disagreed with us) isn't important here. Rather, I think this case sets forth a more general principle:

Questions under the First Amendment are presented when Congress preempts state law that protects speech against private action, because the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.

This does not necessarily mean that the private actor (employer and the union) somehow becomes a "state actor" (or, more precisely, a "government actor") fully bound by the First Amendment. The government action is Congress's preemption of the state law protection. That government action must be judged under the First Amendment. And if the First Amendment blocks that preemption, that simply means that state law springs back into force and continues to restrain the private actors.

The splintered decision in Denver Area Ed. Telecomm. Consortum, Inc. v. FCC (1996) seems to reinforce this principle: A majority of the Justices concluded there that a federal statute that allowed (but didn't require) cable operators to block indecent material, and preempted contrary common-carrier-like rules or local control rules, was subject to First Amendment scrutiny and was indeed partly invalid. (See Part IV of the opinion and Part II of Justice Stevens's concurrence for more details.)

[2.] OK, now let's see how this principle might play out in three hypothetical contexts, before we turn to 230. My own state of California has three state law rules that protect speech against private entities (one of them is based on the state constitution and the other two on state statutes, but that distinction doesn't matter for First Amendment purposes):

Let's say that Congress enacted a Private Shopping Mall Discretion Act, a Private Employer Discretion Act, and a Private Educational Institution Discretion Act, which allowed (but didn't require) all privately owned shopping centers, employers, and educational institutions to exclude whatever speech they liked.

I think that, under Hanson and Denver Area, those statutes could be challenged under the First Amendment. Again, the statutes wouldn't make the mall owners, employers, and educational institutions into state actors bound by the First Amendment. But the Hanson/Denver Area principle would allow visitors, employees, and students to sue under the state laws, and then try to use the First Amendment to invalidate any federal statutory defense that the defendants interpose.

This seems especially apt if the hypothetical Private Discretion Acts were viewpoint-based, e.g., "a private college shall have the power to discipline a student for the student's speech, notwithstanding any contrary state law, if the speech constitutes 'hate speech'"or, if you prefer, "a private college shall have the power to discipline a student for the student's speech, notwithstanding any contrary state law, unless the speech expresses support for federal government policies." Such selective continued protection for some speech, or selective enabling of private suppression of other speech, should at least be subject to substantive First Amendment scrutiny (whether or not you think it might sometimes pass such scrutiny).

But under Hanson and under the logic of Denver Area, I think even a content-neutral statute preempting such speech protections would be subject to First Amendment scrutinyto be sure, the more forgiving intermediate scrutiny applicable to content-neutral speech restrictions.

[3.] Now, if you're with me so far, let's see how this would play out as to 230, and in particular 230(c)(2)(A),

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

Imagine that a state enacts a Social Media Common Carrier Act, which provides something like this:

Just as phone companies are common carriers, which may not deny service based on their users' viewpoints or other attributes, so social media networks may not terminate a user account or delete content supplied by a user based on the ideological viewpoint or factual assertions expressed by that user.

(Assume that the law is somehow largely limited to speech posted and viewed by users within the state, and therefore avoids Commerce Clause problems. Assume also that such an Act wouldn't itself violate the social media network's First Amendment rights, perhaps because a court would conclude that such a mandate is consistent with Pruneyard Shopping Center v. Robins, Turner Broadcasting System v. FCC, and Rumsfeld v. FAIR, all of which upheld some requirements that private entities open up their property to outside speakers. Both are complex questions, but questions for another day. Finally, note that the hypothetical rule isn't quite a traditional common-carrier rule, but there are many different ways to craft such nondiscrimination mandates.)

Users sue Twitter under this state law for banning them based on viewpoints that they have expressed. Twitter says the federal 230(c)(2)(A) preempts the state law. But the users respond that 230(c)(2)(A) is itself a speech restriction that must be evaluated under the First Amendment; adapting Hanson, they argue:

Section 230(c)(2)(A) is only permissive. Congress has not compelled nor required social media networks to restrict user speech.

Nevertheless, justiciable questions under the First Amendment are presented since Congress, by 230(c)(2)(A), sought to strike down inconsistent laws protecting user speech against the social media companies. Such action on the part of Congress is a necessary part of Twitter's editing decisions as far as this state is concerned for without it such banning could not be done within this state.

If private rights secured by the state law are being invaded, it is by force of a Twitter policy made pursuant to federal law which expressly declares that state law is superseded. In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.

The enactment of the federal statute authorizing social media networks to impose such speech restrictions is the governmental action on which the Constitution operates, though it takes a private decision to invoke the federal sanction.

I think this is at least a credible argument, which a court could use to evaluate 230(c)(2)(A) as a speech restriction that triggers the First Amendment. Perhaps 230(c)(2)(A) passes First Amendment scrutiny, but given Hanson and Denver Area, there's a serious basis for a court to apply such scrutiny.

[4.] Finally, let's turn to perhaps the most ambitious theory, focused on 230(c)(1). Recall that 230(c)(2)(A), which I quoted above, actually has little practical effect right now: It preempts state laws that would limit service provider editing discretion, but so far there are in practice virtually no such laws, and no general common carrier statutes / viewpoint discrimination bans of the sort I hypothesized (though some such bans are being contemplated by some state legislatures).

The important provision of 230 is 230(c)(1), which protects social media networks from libel liability (and other state-law liability) for those user posts that they don't edit out. Section 230(c)(1) is used all the time to block such lawsuits.

But wait: Sections 230(c)(1) and (c)(2) were deliberately designed to preempt a specific rule that emerged out of two trial court cases applying New York state law, Cubby v. Compuserve, Inc. (S.D.N.Y. 1991) and Stratton Oakmont, Inc. v. Prodigy Services Co. (N.Y. trial ct. 1995). That rule, to oversimplify, was:

This rule (to be sure, one that was in its infancy at the time 230(c)(1) preempted it) isn't a categorical protection like the hypothetical Social Media Common Carrier Act. But it is still a form of speech protection against private restriction: It encourages private platforms not to restrict speech, by offering them immunity if they provide unrestricted posting rights, but threatening them with some degree of liability if they restrict user speech. And it's clear that 230 (including (c)(1)) was indeed intended to encourage service providers to feel free to restrict speech; the title of 230, after all, is "Protection for private blocking and screening of offensive material."

If this analysis is right, then the constantly invoked 230(c)(1), and not just the rarely applicable 230(c)(2)(A), itself constitutes Congressional preemption of state law that protects speech against private action. And as a result, the 230(c)(1)/(2)(A) combo, and not just 230(c)(2)(A), would need to be evaluated under the First Amendment. (Recall the principle we gleaned from Hanson and Denver Area: "Questions under the First Amendment are presented when Congress preempts state law that protects speech against private action.")

Again, 230 might be seen as constitutionally permissible, perhaps on the theory that its preemption of this state law protection for private speakers passes muster under the intermediate scrutiny applicable to content-neutral laws. But at least courts would consider the question whether 230, by enabling and indeed promoting private restriction of speech, notwithstanding contrary state law rules aimed at protecting speech, themselves violate the First Amendment.

[5.] As I mentioned at the outset, I'm not sure that this analysis is right. Perhaps Hanson and Denver Area (discussed in item 1) are themselves mistaken in applying First Amendment scrutiny here. Or perhaps other precedents that I've missed pull sufficiently in the opposite direction. Or perhaps somewhere in the path from item 1 to 2 to 3 to 4 the analogies go off the rails. And I stress again that this analysis is not identical to the Ramaswamy & Rubenfeld position, though it is inspired by that position.

But I thought I'd set forth what I thought was the strongest argument in support of that view, and see what others have to say about it. I'd love to hear people's reactions, and to adapt my own thinking in light of them.

See more here:

Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment? - Reason

The start to 2021 has not been any good indicator that this year will be anything more than an even more terrible sequel to 2020. Both sides of the aisle are fighting back, and actions are ever more favored than words. Large media corporations silence anyone who disagrees with them, and many politicians say one thing to earn votes and then do the opposite once they are in office. It does in fact feel as though we have lost our outlet to express ourselves in a meaningful and constructive way. We see provocative news stories of impending doom and violent outbursts. We are inundated with despair and shock at what is happening to our country, regardless of what our political beliefs happen to be.

The Founding Fathers issued the First Amendment not only as a law to be upheld by our government but also as a standard to guide every American throughout their lives. Speak out, and allow others to speak. Hold true to your beliefs, and permit others to hold theirs. This right is our first, and in my honest opinion, our strongest defense against tyranny and injustice.

Thankfully, it has not been and truly never can be stolen away from the masses. Though you may not be a Shakespeare or Seuss, you still possess the ability to write out your thoughts effectively and persuasively. Speak out online, in newspapers and in public. Engage with your state and local politicians: your senators, representatives, governor, mayor whoever is willing to listen. Let them know what you want from them and the actions you believe they should take. It is politicians duty to listen to their constituents, and it is our civic duty to speak when we perceive any form of injustice.

Tanner Engles is a junior majoring in computer science.

Read the original:

Letter to the editor: Put the First Amendment first - Daily Mississippian

When Thomas Jefferson wrote the Declaration of Independence, he included in it a list of the colonists grievances with the British government. Notably absent were any complaints that the British government infringed upon the freedom of speech.

In those days, public speech was as acerbic as it is today. If words were aimed at Parliament, all words were lawful. If they were aimed directly and personally at the king as Jeffersons were in the Declaration they constituted treason.

Needless to say, Jefferson and the 55 others who signed the Declaration would all have been hanged for treasonous speech had the British prevailed.

Of course, the colonists won the war, and, six years afterward, the 13 states ratified the Constitution. Two years after ratification, the Constitution was amended by adding the Bill of Rights. The first ratified amendment prohibited Congress from doing what the colonists never seriously complained about the British government doing infringing upon the freedom of speech.

James Madison, who drafted the Bill of Rights, insisted upon referring to speech as the freedom of speech to emphasize that it preexisted the government. If you could have asked Madison where he believed the freedom of speech came from, hed have said it was one of the inalienable rights Jefferson wrote about in the Declaration.

Stated differently, each of the signatories of the Declaration and ratifiers of the Bill of Rights manifested in writing their unambiguous belief that the freedom of speech is a natural right personal to every human. It does not come from the government. It comes from within and cannot be taken away by legislation or executive command.

Yet, a mere seven years later, during the presidency of John Adams, Congress enacted the Alien and Sedition Acts, which punished speech critical of the government.

So, how could the same generation in some cases the same human beings that prohibited congressional infringement upon speech have enacted a statute that punished speech?

To some of the framers the Federalists who wanted a big government as we have today infringing upon the freedom of speech meant silencing it before it was uttered. Today, this is called prior restraint, and the Supreme Court has essentially outlawed it.

To the antifederalists or Democratic-Republicans, as they called themselves the First Amendment prohibited Congress from interfering with or punishing any speech.

Adams Department of Justice indicted, prosecuted and convicted antifederalists for their public speech critical of the government.

When Jefferson won the presidency and the antifederalists won control of Congress, the Federalists repealed the speech suppression parts of the Alien and Sedition Acts on the eve of their departure from congressional control, lest it be used against them.

During the Civil War, President Abraham Lincoln locked up hundreds of journalists in the North who were critical of his war efforts. During World War I, President Woodrow Wilson whom my alma mater, Princeton University, is trying to erase from its memory arrested folks for reading the Declaration of Independence aloud and singing German beer hall songs.

Lincoln argued that preserving the Union was more important than preserving the First Amendment, and Wilson argued that the First Amendment only restrained Congress, not the president. Both arguments have since been rejected by the courts.

In the 1950s, the feds successfully prosecuted Cold War dissenters on the theory that their speech was dangerous and might have a tendency to violence. Some of the victims of this torturous rationale died in prison.

The governments respect for speech has waxed and waned. It is at its lowest ebb during wartime. Of course, dissent during wartime which challenges the governments use of force to kill is often the most important speech.

The speech we love needs no protection. The speech we hate does. The government has no authority to evaluate speech. As the framers understood, all people have a natural right to think as we wish and to say and publish whatever we think. Even hateful, hurtful and harmful speech is protected speech.

Yet, in perilous times, such as the present, we have seen efforts to use the courts to block the publication of unflattering books. We have seen state governors use the police to protect gatherings of protesters with whose message they agreed and to disburse critical protesters. We have seen mobs silence speakers while the police did nothing.

And in perilous times, such as the present, we have seen Big Tech companies silencing their opponents. I hate when they do that, but they have every right to do so. They own the bulletin board. Twitter and Facebook can ban any speech they want because they are not the government. And the First Amendment only restrains the government. In the constitutional sense, free speech means only one thing free from government interference.

Punishing speech is the most dangerous business because there will be no end. The remedy for hateful or threatening speech is not silence or punishments; it is more speech speech that challenges the speaker.

Why do government officials want to silence their opponents? They fear an undermining of their power. The dissenters might make more appealing arguments than they do. St. Augustine taught that nearly all in government want to tell others how to live.

How about we all say whatever we want and the government leaves us alone?

Read the original:

Napolitano: Does the First Amendment restrain Big Tech? - Daily Herald

Nancy Costello, director of the First Amendment Law Clinic and supervisor of the McLellan Free Speech Online Library in the Michigan State University College of Law, discusses the First Amendment and freedom of speech. The First Amendment Law Clinic is the only program in the country solely dedicated to the protection of student speech and press rights.

In simple terms, what is the First Amendment and what does it do?

The First Amendment to the United States Constitution is part of the Bill of Rights and protects freedom of speech, freedom of religion, freedom of assembly, freedom of the press and the right to petition. The First Amendment is one of the most important amendments for the protection of democracy.

Nancy Costello, director of the First Amendment Law Clinic and supervisor of the McLellan Free Speech Online Library in the Michigan State University College of Law.

When was it created?

The First Amendment is part of the Bill of Rights. To protect individual rights, the framers of the U.S. Constitution added 10 amendments to the document in 1791, four years after the Constitution was ratified.

What does the First Amendment say about freedom of speech?

Generally speaking, it means that the government may not jail, fine or impose civil liability on people or organizations based on what they say or write, except in limited circumstances.

President Donald Trump recently was suspended from a number of social media platforms. Is this a violation of his First Amendment rights?

Facebook, Twitter, Instagram or any similar social media platform can censor any persons speech because they are private companies. Censorship is when an entity punishes individuals for their speech or prevents the speech from being expressed. Free speech is the ability to express ones thoughts and opinions without fear of being punished by the government.

The First Amendment protects against the government from censoring speech. None of these social media platforms are part of the government, so President Trump cannot claim his First Amendment rights have been violated.

President Trump was impeached a second time for incitement of insurrection. What is incitement speech?

Incitement speech is not protected by the First Amendment. Incitement speech is when someone encourages lawless action, and that lawless action is imminent and likely. It could be argued that Trump incited the mob violence on Jan. 6 in his summoning and assembling of supporters at the White House rally, his repeated claims that he won the election and his exhorting the crowd to go to the Capitol. Among other things, the president told the crowd, If you dont fight like hell, youre not going to have a country anymore. Not long after Trumps speech, members of the crowd converged on the U.S. Capitol, broke through doors and windows, invaded the Senate and House chambers and private offices, and had violent clashes with police resulting in deaths.

What types of speech are not protected under the First Amendment?Types of speech that arent protected include:

Does the First Amendment only protect U.S. citizens?

Theres no citizenship requirement for First Amendment protection. If you are a resident of the United States, you have freedom of speech, religion, press, assembly and petition.

Link:

Ask the expert: The First Amendment and free speech - MSUToday

The Ohio Supreme Court just granted review inM.R. v. Niesen, on the question whether "when a lower court imposes a prior restraint on expression, immediate appellate review is required." (The underlying case involves a Cincinnati policeman who sued for libel over a post that accused him "of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the 'ok' sign at a City Council meeting held to address concerns by those in the Black Lives Matter Movement." The judge responded by issuing apreliminary injunction ordering the defendants not to "publiciz[e], through social media or other channels, Plaintiff's personal identifying information," which apparently includes the policeman's name.)

I think the answer is yes, given the National Socialist Party of Am. v. Village of Skokiecase. With the indispensable help of our excellent pro bono counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson), the UCLA First Amendment Clinic had filed an amicus brief supporting that position and arguing that the court should hear the case, on behalf of Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O'Neill, Margaret Christine Tarkington, Aaron H. Caplan; the National Writers Union, the Society of Professional Journalists, the NewsGuild-CWA, Euclid Media Group; and me. Here's the heart of our argument (which I expect we'll also resubmit as a merits-stage brief to the court, now that it has agreed to consider the merits):

{The plaintiff, a police officer, sued the defendants, Ohio citizens who criticized his on-duty conduct providing security at a City Council meeting at Cincinnati City Hall. The complaint raised a defamation claim and other similar tort claims. Less than two days after filing the complaint, after a hearing at which the defendant-appellants were present and at which the plaintiff presented no testimony, the court issued an order that "enjoined" the appellants "from publicizing, through social media or other channels, Plaintiff's personal identifying information." The order did not define "personal identifying information," but the only statute that defines the phrase, R.C. 2913.49(A), defines it to include a person's "name."}

Within 48 hours of filing his complaint, [plaintiff] sought and received a sweeping prior restraint: an order forbidding two Ohio citizens from publishing information about a public official arising out the performance of his official duties. That order, like all prior restraints, is presumptively unconstitutional. But when those citizens, Julie Niesen and Terhas White, appealed that order to the First District, the appellate court dismissed the appeal, concluding that there was no final order.

That dismissal was wrong, and there are at least four reasons why this case presents substantial constitutional questions and issues of public or great general interest.

[A.] The order is a prior restraint of the appellants' free-speech rights.

"The term 'prior restraint' is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, 25(some quotation marks omitted). "Temporary restraining orders and permanent injunctionsi.e., court orders that actually forbid speech activitiesare classic examples of prior restraints." Id.(quotation marks omitted). "It is inescapable that a regulation of speech 'about' a specific person . . . is a regulation of the content of that speech and must therefore be analyzed as a content-based regulation." Bey at 33.

"[B]efore a court may enjoin the future publication of allegedly defamatory statements based on their content, there must first be a judicial determination that the subject statements were in fact defamatory." Bey at 44(citing O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 246, 327 N.E.2d 753 (1975)). Likewise, a court may enjoin speech that falls within some other exception only after "there has been" a "judicial determination that future postings" by the plaintiffs will fit within that exception (in Bey, this was the "speech integral to criminal conduct" exception). Id. at 45, 47.

The court below forbade Ms. Niesen and Ms. White from mentioning the name of a public official (police officer "M.R.") in any forum or medium, and it thus is a content-based order. This was a decision made by one judge, without the opportunity for a full trial or even comprehensive briefing, less than 48 hours after the complaint was filed, and it thus was not made after judicial determination that the statements were in fact defamatory. Nor is the order limited to forbidding libelous speech, speech that constitutes true threats, or speech that falls into any other First Amendment exception, such as the exception for intentional incitement of imminent and likely criminal conduct, see Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). It thus does not satisfy the requirement of falling outside the protection of the First Amendment.

The order prohibits speech that is fully protected by the First Amendment and by Art. I, 11 of the Ohio Constitution. It has no expiration date. The order is a prior restraint of the appellants' speech. And "Prior restraints on First Amendment expression are presumptively unconstitutional." Bey at 60. Cases seeking review of presumptively unconstitutional orders restraining speech are the epitome of cases raising substantial constitutional questions.

[B.] The prior restraint impinges upon the public's rights.

The First Amendment protects not only the rights of speakers, but also the rights of listeners. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 609 (1976)(Brennan, J., concurring) ("[I]t is the hypothesis of the First Amendment that injury is inflicted on our society when we stifle the immediacy of speech.") (emphasis added); McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir. 2015) (anti-libel injunction has "the potential to harm nonparties to the litigation because enjoining speech harms listeners as well as speakers.").

Prior restraints always interfere with the public's constitutional right to listen, but this particular prior restraint also interferes with the public's constitutional right to accessincluding to listen to accounts ofcourt proceedings. That right is well-established. See In re T.R. (1990), 52 Ohio St.3d 6, 16 n.9 (adult civil and criminal proceedings are "presumptively open to the public"); State ex rel. The Repository v. Unger (1986), 28 Ohio St. 3d 418, 421 (both pre-trial and trial proceedings are open to the public); Sup.R. 45(A) (case documents are open to the public). This order interferes with that constitutional right because it prohibits the defendants from discussing the plaintiff by name when talking about this litigation.

The public also has a right (and indeed, a duty) to supervise and scrutinize public officials regarding the performance of their official duties. That is true generally, but this Court has said that it is particularly true when the public official is a police officer and when the conduct being discussed is his participation in court proceedings. See Soke v. Plain Dealer (1994), 69 Ohio St.3d 395, 397.

The order in this case thus represents a constitutional quadruple-whammy: by allowing the public official here to surreptitiously use the Ohio courts to immunize himself from such public scrutiny, the order has interfered with the appellants' speech rights generally; interfered with the public's right to listen to speech on matters of public interest; interfered with the public's right and duty to supervise the proceedings of the state court system that dispenses justice in their name; and interfered with the public's right and obligation to supervise public officials' performance of their official duties. The First Amendment does not permit this type of speech restriction.

[C.] The dismissal order elevates state civil procedure rules over the First Amendment and form over substance.

Because of all the foregoing constitutional problems, the U.S. Supreme Court has held that prior restraints must be subject to immediate appellate review. National Socialist Party of America v. Skokie, 432 U.S. 43 (1977). But the Court of Appeals refused to follow this precedent, explaining its decision to disregard the U.S. Supreme Court's command by saying that it viewed the order as just a "temporary restraining order," and not a preliminary injunction.

That refusal raises yet another substantial constitutional issue. Constitutional rights, including the First Amendment precedents requiring immediate appellate review of prior restraints, apply regardless of state-law distinctions between TROs and preliminary injunctions. Holding otherwise would permit state law (or, more precisely, state court rules) to dictate the applicability of federal constitutional law. That would wrongly elevate state-law form over federal substance, turning the Supremacy Clause on its head. See U.S. Const., art. IV, cl. 2 (federal Constitution and laws "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding"). Federal law controls over state procedure; not the other way around.

Moreover, the First District's reliance on the supposed status of the prior restraint as a TRO was an inaccurate elevation of form over substance. This Court recently (and unanimously) recognized that TROs can be "classic examples of prior restraints." Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, 25. The immediate appealability of the order therefore does not depend at all on whether the order was a TRO, a preliminary injunction, or anything else.

{And, though it does not matter to the constitutional issue, the appellate court's conclusion that the order was a TRO and not a preliminary injunction is likely incorrect. The order is properly seen as a preliminary injunction because it was not granted ex parte, cf. Civ.R. 65(A) ("A temporary restraining order may be granted without written or oral notice... ."), and, as the Court of Appeals observed at 10, the duration of the order "extended . . . past the expiration of the period set forth in Civ.R. 65 for a temporary restraining order." See id. (limiting TRO to 14 days plus one like extension for good cause; the order here was journalized in July and apparently was intended by the common pleas court to remain in effect at least until September 1).}

[D.] The dismissal order created a split between appellate districts.

Even if the First District's dismissal order had no constitutional implications, it would warrant review and correction by this Court because it created a district split. The First District below held that the First Amendment offers no right to immediate appellate review of an ostensible temporary restraining order. M.R. v. Niesen, 1st Dist. No. C-200302 at 1 (Sept. 9, 2020).

But the Second District has held that "Because the right of free speech must be protected against the chilling effect resulting from even its temporary infringement, the United States Supreme Court held in [Nat'l Socialist Party] that: 'If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, including immediate appellate review. . . .'" Int'l Diamond Exch. Jewelers, Inc. v. U.S. Diamond & Gold Jewelers, Inc., 70 Ohio App. 3d 667, 671, 591 N.E.2d 881, 884 (2d Dist. 1991) (citations and some internal markup omitted; emphasis in original). And "Given that an immediate appellate forum for review of an order that imposes a prior restraint upon the exercise of free speech is necessitated by the federal Constitution," an appellant need not "wait until the case has been concluded in the trial court before he may challenge the order." Id. See also Connor Group v. Raney, 2d Dist. Montgomery No. 26653, 2016-Ohio-2959, at 1 ("Although the issuance of a preliminary injunction by a trial court generally is not viewed as a final appealable order, . . . a preliminary injunction that constitutes a prior restraint on speech requires immediate appellate review.").

The Eleventh District agrees: "[W]here an injunction seeks to 'impose a restraint [on First Amendment rights],' there must be strict procedural safeguards, including immediate appellate review." Puruczky v. Corsi, 11th Dist. Geauga No. 2017-G-0110, 2018-Ohio-1335, 15 (paraphrasing Nat'l Socialist Party; some internal markup omitted). "Since Corsi alleges that the injunction substantially impacts his rights and constitutes a prior restraint on his speech, we will proceed to a review of the merits of his appeal." Id.

Unlike the First District's decision below, the holdings of those districts offer no loophole for temporary restraining orders, and those courts exercised their jurisdiction and reviewed (and reversed) the prior restraints. And both Puruczky and Connor Group were libel cases, like this one.

And the Second and Eleventh Districts' approach is correct: As the U.S. Supreme Court has recognized, even temporary restraints on speech can create a chilling effect on the exercise of free speech. See Int'l Diamond, 70 Ohio App. 3d at 671. This Court should also exercise its discretion to review this case and resolve this split of authority on this important constitutional issue that affects fundamental rights. Unless and until it does, the rights of defendants to speak and of the public to listen and supervise their courts and their public officials, will depend on which of the State's appellate districts they reside in.

Proposition of Law no. 1: An order that imposes a prior restraint on speech must be subject to immediate appellate review.

"[I]mmediate appellate review" of prior restraints is constitutionally required. National Socialist Party, 432 U.S. at 44. See also Puruczky; Connor Group; Int'l Diamond, supra.

This principle is fully applicable here. Puruczky and Connor Group involved injunctions entered in response to libel lawsuits, just as this case does. National Socialist Party famously involved Nazis marching in Skokie, Illinois. Nat'l Socialist Party, 432 U.S. at 4344; see also Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978). If Nazis who want to march in a neighborhood populated with thousands of Holocaust survivors are entitled to immediate appellate review of an injunction against their speech, then citizens criticizing a police officer must be entitled to the same.

This constitutional requirement flows naturally from courts' recognition of the dangers of prior restraints. "A prior restraint...has an immediate and irreversible sanction" that is unlike any other remedy a court may impose, including "a judgment in a defamation case" or even "[a] criminal penalty," because all other sanctions are "subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative" for other remedies. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).

That "panoply of protections" does not exist for a prior restraint, which is why "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Id.Prior restraints "fall on speech with a brutality and finality all their own." Id. at 609(Brennan, J., concurring in reversal of prior restraint).

More broadly, every day that a prior restraint remains in place is a First Amendment violation, and "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). "'Where . . . a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.'" CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994)(Blackmun, J., in chambers) (citation omitted); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006)(endorsing this principle as requiring "expeditious[]" decisionmaking as to restraints on First Amendment rights, there the right of access to court records); Doe v. Pub. Citizen, 749 F.3d 246, 27273 (4th Cir. 2014)(same); Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)(same), superseded on other grounds, as stated in Bond v. Utreras, 585 F.3d 1061, 1068 n.4 (7th Cir. 2009). And of course this principle applies beyond the mainstream media, and covers social media users as well.

{Art. I, 11 of the Ohio Constitution "guarantees to '[e]very citizen' the right to publish freely his or her sentiments on all subjects, regardless of that citizen's association or nonassociation with the press." Wampler v. Higgins, 93 Ohio St. 3d 111, 121 (2001). "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." Citizens United v. United States, 558 U.S. 310, 352 (2010)(internal quotation marks omitted). "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. City of Griffin, 303 U.S. 444, 452 (1938); see also Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1092 (Fla. Dist. Ct. App. 2014)("Angry social media postings are now common....But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk," and are just as fully protected by the First Amendment).}

The injury inflicted by prior restraints is thus not remediable by vacatur or reversal of a prior restraint at a distant future date after final judgment, especially where (as here) the prior restraint relates to a public official and his conduct in official and court proceedings. The parties and the public have a right to speak contemporaneously, not merely retrospectively, both about public officials and about court proceedings. See Bridges v. California, 314 U.S. 252, 268 (1941)("[P]ublic interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist."); Doe v. Pub. Citizen, 749 F.3d 246, 272 (4th Cir. 2014)(acknowledging the harms of "delayed disclosure" with respect to court proceedings). Immediate appellate review is thus critical to make sure that the injunction does not cause such a loss of First Amendment freedoms.

The logic of these cases turns on the commands imposed by the First Amendmentcommands that override any contrary state procedural distinctions that would limit immediate appellate review. And of course both this Court and the U.S. Supreme Court have recognized that "Temporary restraining orders," no less than "permanent injunctions," "are classic examples of prior restraints" that are fully subject to First Amendment constraints. Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, 25; Alexander v. United States, 509 U.S. 544, 550 (1993).

Yet the First District took a sharply different approach; it concluded that neither the U.S. Supreme Court's Skokie decision nor the Second and Eleventh Districts' decisions applied here, simply because this case involved a temporary restraining order. M.R., 1st Dist. No. C-200302 at 9. The First District did not acknowledge this Court's or the U.S. Supreme Court's treatment of temporary restraining orders as prior restraints, nor did it explain why the First Amendment rule of immediate appellate review of prior restraints would be limited by the TRO/preliminary injunction distinction.

This Court's review is necessary to set forth a uniform rule on when immediate appellate review of prior restraints is necessary.

Conclusion

Prior restraints on speech are rarely constitutional; and to make sure that unconstitutional prior restraints suppress speech for as short a time as possible, both the U.S. Supreme Court and Ohio courts have required that such restraints be subject to immediate appellate review. The injunction in this case is a prior restraint, and thus subject to immediate appellate review; indeed, it is a content-based prior restraint, and one that is not limited to libelous speech or to speech that falls within a First Amendment exception. This Court should step in to correct the serious First Amendment violation in this case, and resolve the disagreement among the Courts of Appeals on whether the normal First Amendment rules apply to temporary restraining orders.

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Do Critics of Police Have the First Amendment Procedural Protections That Nazis Get? - Reason

By Anika Khubchandani and Lisbeth Martinez

VENTURA The First Amendment Coalition (FAC)a non-profit public organization committed to freedom of speech, transparency and accountability in government, and community involvement in civic lifehas found itself battling police unions attempting to stop the disclosure of officer files.

The San Raphael-based FAC, founded in 1988, focuses on providing legal consultations on First Amendment issues in addition to overseeing legislation on free speech.

Since the passing of Senate Bill 1421 in 2019, all police records, including officer use-of-force incidents, sexual assault, and acts of dishonesty, must be made accessible to the public. But it hasnt been easy with pushback from unions representing law enforcement.

And, FAC has now become involved in many cases throughout California in which unions representing law enforcement have sought to enjoin the disclosure of records required to be made public.

Before the law went into effect, many law enforcement unions challenged Section 832.7 of SB 1421 in the courts, arguing that the Public Records Act only applied to records regarding incidents after January 1, 2019, making pre-2019 incidents retroactively impermissible. Courts throughout California have ruled that SB 1421 requires the disclosure of pre-2019 records.

Except Californias Second District Court of Appeal in Ventura County.

In this case, the Ventura County Deputy Sheriffs Association (VCDSA) made the same argument as many law enforcement unions, claiming that the privacy rights of police officers would be violated with the disclosure of pre-2019 records.

And now FAC has submitted an amicus brief in support of Appellant Todd E. Howeth, acting in his capacity as Public Defender of Ventura County.

Since this case is the only exception in which a court has failed to fully apply SB 1421 to all reports of police misconduct, this outlier decision creates a prohibition on access to public records and makes it difficult for the public to hold police officers accountable for gross injustices due to a lack of transparency, said FAC.

FAC explains that SB 1421 has clear language requiring all records maintained by public agencies of officer-involved shootings, serious uses of force, and incidents of sexual assault and dishonesty resulting in sustained findings, regardless of whether or not they concern pre-2019 incidents.

Mandating the disclosure of these records is not impermissibly retroactive because retroactivity turns on the triggering activity, which in this case is the request for the records, not the incident described in the records, the brief added.

Moreover, there is no legislative intent suggesting that the law was expected to exclude pre-2019 records, according to the FAC, noting the main function of the legislation was to increase transparency regarding all records of serious misconduct and use of force by peace officers to which it applies.

The VCDSAs entire basis of argument is wrong because California case law is clear that peace officers have never had unfettered privacy rights in the types of records at issue here, argued FAC.

The Superior Courts judgment in support of VCDSAs stance on prohibiting Ventura County from disclosing pre-2019 records is wrong because it fails to follow binding authority from the Court of Appeal, First Appellate District, insisted FAC.

And the pleading charges the Superior Court is also wrong on the merits because SB 1421 mandates the transparency of pre-2019 records to the public, and VCDSAs arguments fail to follow these merits.

The FAC filing continues: Considering the application of SB 1421 to pre-2019 incidents does not attach any new legal consequences to past events, the disclosure of the records will not make any conduct that was previously legal illegal or punishable by law. Therefore, since no liability is imposed on police officers for their past conduct, SB 1421 only expands the number of people that can access and obtain certain categories of police personnel records.

These records have always been available in many circumstancesnow they just include members of the public who make requests for information under the California Public Rights Act.

Since transparency and accountability are the foundations of a free and democratic society, FAC urges the Court to reverse the judgment of the Superior Court and compel Ventura County to join other counties in disclosing all applicable public records under SB 1421.

Anika Khubchandani is a 4th year student at UC Davis majoring in both Political Science and Economics. She is from San Jose, CA.

Lisbeth Martinez is a third year at UC Davis, double majoring in Communication and Political Science. She currently lives in Shafter, California.

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First Amendment Coalition Files Pleading Asking Appeal Court to Reject Cop Union Attempt to Stop Easy Access to Police Public Records - The Peoples...

I write not wanting to ruffle feathers or strain friendships. Yet, I am reminded that we remain silent because silence is easier. There may come a time I need friends to speak out on my behalf and they might not because I've set a poor example.

I am troubled by the messages that I've received over the last few days by people who are enraged because their freedom of speech rights are being denied. I interpret this to mean their Twitter accounts have been closed.

First, I'd like to point out your freedom of speech has not been denied, or I wouldn't be hearing from you. You are coming through on another forum maybe not the one you typically use, but I'm guessing you'll have a new platform shortly. Remember that Facebook and Twitter are private companies, and they do have the right to require that their users follow certain rules. Remember all of those pages you didn't read when you signed on to be a user? You simply checked, "I agree." Well, that's what you agreed to.

Second, the Supreme Court has ruled that there are a few exceptions to the First Amendment. They include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. There's a reason you can't stand up in a crowded theater and yell "Fire!" It's incitement and causes danger to others as they attempt to flee.

One example: In November, Sidney Powell, then-lawyer for President Trump, accused Dominion Voting Systems of promoting widespread voter fraud through voting machines she claimed were manufactured in Venezuela for the explicit purpose of throwing elections. All of those claims were proven false, but, nonetheless, they were picked up by social media and spread across the internet like mice in a grain bin. The president repeated Powell's claims, and his ardent followers took his words to heart, becoming more and more convinced that their candidate had been robbed of his election. He, as well as other congressmen and women, jumped on the groundswell of this example of misinformation despite state and federal judges (many Republican) throwing the claims out of court.

Employees of Dominion Voting Systems began receiving death threats. Imagine that. You do your job, someone falsely claims you cheated, and without any facts to these claims, your business plummets, and your 300 workers and their families fear for their lives. To top it off, the president of the United States continues to feed this misinformation to his loyal supporters to the point they become outraged.

So, back to the original question: Has this speech included "obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct?" If you, by chance, "shared" information on a "private" company's platform, whether you knew or didn't know that it was false, and it led to defamation and inciting others to violence, then yes - your account was blocked. That is a lesson to us all to be careful about casually hitting the "share" button.

Dominion Voting Systems is suing Sidney Powell for $1.3 billion (with a B), and the CEO claims that's just for starters. More suits are being filed. Are Facebook and Twitter concerned because they allowed their platform to be used to spread the lies that resulted in defamation, fraud, incitement, threats and criminal conduct? You bet.

Like millions of others, I am distressed and sickened that our country is being divided over the issue of honesty a quality I'm sure both sides agree with in principle. I understand completely why others can listen to the same speaker as I do and walk away with a different opinion as to the best approach for making our country a strong, productive and moral society for our children to inherit. In doing so, however, we have to start by agreeing with what is true and what is being propagated for personal and political gain. If someone is milking millions off a falsehood, then they're going to buy the cow? We've got too many cash cows in our midst, and they're doing severe damage to the land we love. It's time to trim the herd.

BRENDA BEVAN REMMES

Mayesville

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Letter: To everyone, including friends and family members, who feel First Amendment rights are being denied - Sumter Item

This article is part of the Free Speech Project, a collaboration between Future Tense and the Tech, Law, & Security Program at American University Washington College of Law that examines the ways technology is influencing how we think about speech.

TRUMP INCITES MOB read the banner headline on the Jan. 7 New York Times the morning after a seditious crowd stormed the Capitol to try to block certification of the 2020 election results. Aside from certain loyalists, it seems that most agree that under the colloquial understanding of incite, Trump incited the insurrection. Even some insurrectionists pointed the finger at him, like the one who said, We were invited by the president of the United States, as they lay siege to the Capitol.

When the Senate tries Trump on the single charge in his second impeachmentINCITEMENT OF INSURRECTIONit will doubtless consider whether his incendiary Jan. 6 diatribe is protected expression under the First Amendment, as his defenders claim. The question will also be central in a criminal prosecution if the D.C. attorney generals current investigation leads to an indictment. So, did Trumps words satisfy a legal definition of incitement, whether in a criminal court or his Senate trial?

To answer that question, we have to start with Brandenburg v. Ohio (1969). In an opinion joined by all of the justices, the Supreme Court overturned the conviction of a Ku Klux Klan leader under a state statute that criminalized advocacy of crime violence, or other unlawful methods of terrorism as a means of effecting political change and barred assembly with any group that promoted such doctrines. The court held that the law criminalized too much speech because it failed to distinguish between mere advocacy at the heart of political speech and incitement to imminent lawless action, which the First Amendment does not protect.

The Brandenburg ruling proclaimed that freedom of speech protects advocacy of the use of force or of illegal acts except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action. That test continues to govern incitement law.

Brandenburg involved an appeal from a criminal conviction by a Ku Klux Klan leader, Clarence Brandenburg, who had advised the hooded crowd at a Klan gathering that if the federal government continue[d] to suppress the Caucasian race, its possible that there might have to be some revengeance taken. A wooden cross was burned during the rally, and a video revealed weapons. No acts followed. Brandenburgs exhortation lacked imminence. The possibility of illegal forms of revenge was remote; the threat of vengeance was conditional, only to occur if something out of the crowds control happened. Brandenburg did not call for any immediate action.

Trumps speech on Jan. 6 was very different from Brandenburgs. At noonwith Congress scheduled to meet in joint session at 1 p.m.Trump exhorted the crowd: And after this, were going to walk down and Ill be there with you. Were going to walk down to the Capitol. The crowd applauded. Later, wrapping up, he reiterated, So we are going to walk down Pennsylvania Avenue and we are going to the Capitol. Trumps words more than satisfy the imminence requirement.

Whether he directed illegal acts presents a trickier question. Trump did not specifically instruct people to storm the Capitol, disrupt the certification of Bidens election, destroy or steal government property, kill law enforcement officers, or terrorize the officials in the building, including his own vice president. Its important to note, however, that incitement can be implicit as well as explicit.

Trump did nothing to stem the violence while he watched it unfold live on television. He never seriously exhorted the crowd to cease anddesist.

Fact-finders sitting in judgment will decide whether Trumps language was implicitly directed at inciting or producing imminent lawlessness. But public actions from that day suggest it was. He stirred people up with baseless claims, rejected by dozens of courts since Election Day, that he had won the election in a landslide. He insisted, We wont have a country if we dont fight like hell, adding that we will not let them silence your voices. Were not going to let that happen. He questioned the steadfastness of Vice President Mike Pence (Im not hearing good stories), whom the insurgents later threatened to hang. Meanwhile, the audience chanted, Fight for Trump, suggesting they got the message.

That context matters. After Trump spoke, many of those who listened to him in person attacked the Capitol. Trumps own behavior that afternoon also proves significant. He did nothing to stem the violence while he watched it unfold live on television. He never seriously exhorted the crowd to cease and desist. When he finally spoke, he undercut his scripted law-and-order message by reiterating that a sacred landslide victory had been viciously stripped away from great patriots. He urged them to Go home with love. Trump reportedly called freshman Sen. Tommy Tuberville of Alabama, seeking his help in delaying certification of the Electoral College count. All of this demonstrates that Trump intended the result he got: insurrection. It also points to dereliction of duty to protect the government and the Constitution.

Senators or jurors might also justifiably look backward to Trumps Dec. 19 tweet inviting supporters to gather in Washington on Jan. 6Big protest Be there, will be wildand possibly further back to all of Trumps efforts to delegitimize the 2020 election. None of those earlier tweets and statements count as incitement because any threat they contained was remote, but they provide context for how Trumps listeners understood his Jan. 6 speech. Trump, in turn, presumably knew that people from all over the country planned to bring weapons and disrupt the Capitol because they shared their plans on public social media sites. Those preparations increased the likelihood that Trumps speech would spark lawlessness, though Trump may argue that the insurrection had independent momentum.

Legal observers debate whether courts should look to the average listener or to specific listeners, like the self-selected group that attended Trumps rally, to determine the likelihood that the crowd will take action. But Trumps words amount to incitement under either standard. Lets start with the subjective. We know how a significant portion of those at Trumps rally understood his language, not only from their actions but from their subsequent words. For example, after she was arrested, Jenna Ryan, who flew from Texas to Washington for the Jan. 6 events, justified her conduct by saying: I was following my president. I thought I was following what we were called to do.

The widespread impression that Trumps speech incited the ensuing riot appears to satisfy an objective standard as well. Many who watched Trumps speech from afar feared it would trigger violence, though we lacked the imagination to envision the horror that followed. An audience did not have to be specially primed to hear Trumps speech as a call to action and as permission to, in the words of one reporter, take more extreme measures.

Trumps defenders point to a single sentence of his speech to counter the incitement charge. A master at crafting deniability, Trump put on the record: I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard (emphasis added). He then pivoted to his pervasive imagery of warfare: Our country has been under siege for a long time.

This same maneuver had enabled Trump to escape liability in a civil suit brought by peaceful protesters who had been roughed up at one of his campaign rallies in 2016. Trump convinced an appellate court that his single admonition, Dont hurt em, insulated his five exhortations to get em out of here from any plausible reading as advocating violence.

But if a single sentence in an inflammatory speech could inoculate incitement from liability, every sentient speaker would add the requisite phrase while inciting to their hearts content. Here, the extent of inflammatory rhetoric compared with a passing nod at peaceful behavior indicates Trumps language was directed to incite and was likely to incite. Still, that will be question for senators or jurors to decide.

In the end, the intricacies of incitement doctrine in criminal law may not matter in the Senate. Different rules apply.

Senate rules are conspicuously silent regarding the standard of proof in impeachment trials. When Chief Justice John Roberts presided over Trumps first impeachment trial, he submitted the case to the senators for a vote without specifying any standard, or indeed giving any guidance at all.

Absent guidance, a senator might justifiably conclude a preponderance of the evidence established that Trump incited insurrection, while in criminal proceedings the prosecution would have to show that it had proved each part of the Brandenburg test beyond a reasonable doubt. A conviction in the Senate would not broaden the constitutional definition of incitement. Under the criminal standard, Trumps implicit direction to the crowd on Jan. 6 might fall short of the stringent Brandenburg requirement that the speech be directed to producing imminent lawless action.

That distinction alone could lead to a conviction in the Senate, followed by a decision not to pursue charges or an acquittal in federal court. Neither of those outcomes should be seen as undermining the legitimacy of a Senate conviction.

In a moment of crisis, it may prove tempting to disregard the fundamental premise that free speech is essential to democratic self-governance. The First Amendment recognizes that speakers hope their words will lead to action and not prove impotentbut it never protects violence. Brandenburg allows dissidents of every stripe to organize, motivate, and act. It must continue to protect movements from Black Lives Matter and environmental causes to the Proud Boys, until they cross the line from zealous advocacy to unprotected incitement.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

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What the First Amendment Really Says About Whether Trump Incited the Capitol Riot - Slate

Thursday, Jan. 21, 2021

While much of former President Trumps language was not traditionally presidential, it has been largely protected thanks to the First Amendment.

But since the U.S. Capitol riot, Trump has been banned from many major social media sites and some right-wing apps were muzzled.

While critics suggest this is a slippery slope toward total censorship of conservative thought, supporters of the restrictions argue Trumps incitement of the riot was deadly and allowing him to stoke further violence is dangerous.

As social media, press freedoms and a deeply divided America collide, we revisit the question: what does the First Amendment actually protect?

We sit down with national experts to analyze what freedom of speech means as Big Tech remains more powerful than ever and a new administration takes office.

GUESTS

RonNell Andersen-Jones, professor of law at the University of Utah and affiliated fellow at Yale Law Schools Information Society Project

Jillian York, director for International Freedom of Expression at Electronic Frontier Foundation

Katie Fallow, senior staff attorney at Knight First Amendment Institute

The rest is here:

Do Social Media Companies Have Too Much Power Over The First Amendment? - WFAE