In this episode of The Jabot podcast, I speak with University of Buffalo Law professor Samantha Barbas. We chat about her new book, The Rise and Fall of Morris Ernst, Free Speech Renegade, and about this First Amendment pioneer turned enemy of civil rights. We also discuss the future of the First Amendment and the recent right-wing push to remake the pillar of free speech doctrine enshrined in New York Times v. Sullivan.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wore when delivering dissents from the bench. Its a reminder that even when we arent winning, were still a powerful force to be reckoned with.

Happy listening!

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email herwith any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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Law Professor On The Future Of The First Amendment - Above the Law

Pro-Trump supporters storm the U.S. Capitol following a rally with President Donald Trump on Jan. 6, 2021, in Washington, D.C. They later went on to break in and attempt to stop the certification of the 2020 presidential election results. Samuel Corum/Getty Images hide caption

Pro-Trump supporters storm the U.S. Capitol following a rally with President Donald Trump on Jan. 6, 2021, in Washington, D.C. They later went on to break in and attempt to stop the certification of the 2020 presidential election results.

The House select committee on Jan. 6 holds its first hearing on Thursday, in prime time at 8 p.m. ET, promising to weave together a narrative from the findings of its year-long probe with "previously unseen material" about the attack on the Capitol.

Some committee members have teased that there will be "bombshells" and that the public will be surprised by what is revealed.

Pressed about the risk of overhyping the news, given that many details have already leaked out, committee member Jamie Raskin, D-Md., told reporters this week: "We're not in the business of entertainment. We're in the business of trying to communicate to the American people the gravity and the immensity of these events."

The majority-Democrat committee, charged with investigating the insurrection that pro-Trump extremists hoped would help overturn the 2020 election, has interviewed more than 1,000 witnesses, including members of former President Donald Trump's family and administration, as well as law enforcement officials and aides who were under siege for hours on Jan. 6, 2021.

Thursday's hearing, the first of six, will feature two live witnesses: Caroline Edwards, a U.S. Capitol police officer and the first law enforcement member injured by rioters on the West Front plaza; and Nick Quested, a filmmaker who accompanied those who breached the building and captured the chaotic scene. Chairman Bennie Thompson, D-Miss., and Vice Chair Liz Cheney, R-Wyo., will make opening statements and the panel will also show videotaped depositions from senior Trump White House, campaign and administration officials.

The committee is expected to issue a voluminous report with recommendations in September. Some members have already indicated they back changes to the Electoral Count Act, the law governing the process for Congress to count and certify electoral votes. While the committee has the power to make legislative recommendations, it cannot bring any criminal charges and can only make a criminal referral to the Justice Department.

Here are key areas the committee will discuss during the hearings.

Cheney has repeatedly raised questions about the lack of information about what then-President Trump was doing at the White House when violent protesters breached the Capitol. The rioters threatened lawmakers and the vice president, chanting to "hang Mike Pence," and there was a period of time with no response from Trump. Hours earlier he told his supporters on the Ellipse outside the White House, "We fight like hell. And if you don't fight like hell, you're not going to have a country anymore." Trump suggested he would walk with his supporters to the Capitol but instead returned to the White House.

Former President Donald Trump greets the crowd at the "Stop The Steal" rally on Jan. 6, 2021, in Washington, D.C. Trump supporters then marched to the Capitol and some violent protesters attempted to stop Congress from certifying the 2020 election. Tasos Katopodis/Getty Images hide caption

Former President Donald Trump greets the crowd at the "Stop The Steal" rally on Jan. 6, 2021, in Washington, D.C. Trump supporters then marched to the Capitol and some violent protesters attempted to stop Congress from certifying the 2020 election.

Several committee members point to 187 minutes that afternoon, where it's unclear what the president was doing, as a key focus of their investigation. They have worked to fill in the gap through interviews with multiple witnesses, including Ivanka Trump and her husband Jared Kushner. They've also subpoenaed documents, including the president's daily schedule and phone log.

According to select committee aides, Thursday's hearing will feature testimony from those inside the White House and the Trump campaign, including family members. These will be video clips of taped depositions.

The committee issued at least 20 publicly announced subpoenas tied to a wide-ranging scheme across several states to submit a slate of fake electors to Congress as a way of altering the results of the 2020 presidential election in the hopes of keeping Trump office.

The subpoenas included Kelli Ward, the chair of the Arizona Republican Party, in addition to two GOP political candidates in swing states. Committee demands for testimony and records were also issued to the Republican nominee to be Pennsylvania's next governor, Doug Mastriano, and the GOP candidate Mark Finchem, who is running to be the next secretary of state in Arizona.

In some cases, state officials helped organized events where members of Trump's legal team and others shared false claims of voter fraud. The effort continued up to the day of the attack. For example, Finchem said he had to deliver "evidence" to Pence to postpone the certification of the election results.

The committee also obtained details that then-Trump personal lawyer Rudy Giuliani pressured state lawmakers to reject election results in Michigan. Giuliani also has testified before the committee.

The efforts have also drawn the attention of prosecutors in multiple states.

What the committee has learned about the financial story behind the Jan. 6 attack on the Capitol has remained one of the most closely held parts of the probe. However, it has shared some clues through publicly announced subpoenas and court filings.

For example, a Republican National Committee lawsuit revealed the panel was looking into a push by Trump for donations after he lost his 2020 bid for reelection.

The committee's Feb. 23 subpoena of RNC vendor Salesforce said the company hosted Trump emails asking for new donations that included false claims of election fraud.

It was part of a central question the panel hoped to answer: Did Trump find new ways after his loss to keep the money coming by shifting to a "Stop the Steal" effort?

The panel has also issued subpoenas for banking records and shared in letters to certain subpoenaed witnesses that it's trying to track down appearance fees for the Jan. 6 rally that is, whether any of the speakers collected payment that day.

A combination of dark-money groups, nonprofits and super PACs funded the rally before the attack, but the panel has also probed whether any of that money help aid the insurrection.

Protesters gather at the door of the U.S. Capitol on Jan. 6, 2021. Tasos Katopodis/Getty Images hide caption

Protesters gather at the door of the U.S. Capitol on Jan. 6, 2021.

The committee has also taken strong interest in the extreme right-wing groups that breached the Capitol. Among their publicly announced subpoenas, the panel last year demanded testimony and documents from the Proud Boys and the Oath Keepers.

It also demanded testimony for Henry "Enrique" Tarrio, who on Jan. 6 was chairman of the Proud Boys; Elmer Stewart Rhodes, president of the Oath Keepers; and Robert Patrick Lewis, chairman of 1st Amendment Praetorian, a less well-known group that provided security at multiple rallies leading up to Jan. 6.

The groups were part of a larger organized network that helped launch the attack on the Capitol, the committee's members have said.

The interest in the groups and their leaders has also escalated in recent months in the criminal probe led by the Justice Department. Several members of the Oath Keepers and Proud Boys have also been charged with seditious conspiracy, and some have led to convictions with guilty pleas.

Select committee aides emphasize the "vast majority" of witnesses have cooperated and helped the committee amass "a mountain of new evidence."

But some senior former officials in the Trump administration and House of Representatives refused to appear or provide documents. Former adviser Steve Bannon refused to cooperate and was ultimately charged with contempt of Congress by the Justice Department last November. His trial is slated for this summer. Last week Peter Navarro, former trade adviser, faced a similar charge.

Former White House Chief of Staff Mark Meadows initially cooperated and turned over a trove of emails and text messages, but then reversed course and refused to a closed-door interview and to turn over remaining materials the panel requested. Meadows sued the panel, and his attorney raised concerns about executive privilege, even though the Biden White House has waived any claims to that protection.

Former senior aide Dan Scavino also defied a subpoena. The House referred the refusals from both him and Meadows to the Justice Department, which informed the committee last week they would not pursue contempt charges against them news the panel criticized, arguing they had central information to provide in the investigation.

In a rare move, five sitting House Republicans were also subpoenaed for testimony and documents. Most notably, House Minority Leader Kevin McCarthy, R-Calif., who publicly talked about his phone conversation with Trump on the day of the attack, was asked to appear voluntarily and then given a subpoena. McCarthy along with Rep. Jim Jordan, R-Ohio, Rep. Scott Perry, R-Pa., Rep. Mo Brooks, R-Ala., and Rep. Andy Biggs, R-Ariz. have all pushed back against the subpoenas and demanding details about evidence and questions they would face, making it all but certain they will not participate in any fashion. It's unclear whether the panel would vote to hold any in criminal contempt, and if it did that dispute could end up in court.

For the latest updates on Thursday's hearing head over to NPR's live blog.

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5 key questions the Jan. 6 committee will tackle in its hearings - NPR

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Longtime liberal radio host Bill Press wrote an op-ed Thursday calling for the Second Amendment to be outright repealed.

"The only effective way to deal with the Second Amendment is to repeal it and then replace it with something that makes sense in a civilized society," Press wrote for CNN in an article titled "Theres no way to fix the Second Amendment. Lets just get rid of it."

"I'm hardly the first person to say that the Second Amendment has been a disaster for this country. In fact, two Supreme Court justices justices appointed by Republican presidents have said as much," he added.

SUPPORT FOR ASSAULT WEAPONS BAN HITS ALL-TIME LOW FOLLOWING UVALDE SHOOTING: POLL

Press cited former Supreme Court Chief Justice Warren Burger, who in 1991 told PBS that "If I were writing the Bill of Rights now, there wouldn't be any such thing as the Second Amendment."

Burger, who also presided over Roe v. Wade, is quoted as calling the Second Amendment "one of the greatest pieces of fraud" in American history.

Press reiterated the claim and expounded on it. He wrote, "Indeed, you only have to read the Second Amendment to see what a fraud it's become."

He claimed that "there's no way you can logically leap" from the text of the Second Amendment "to the unfettered right of any citizen to buy as many guns and any kind of gun that they want, without the government being able to do anything about it."

NEW YORK ENACTS MICROSTAMPING GUN LAW IN PUSH TO CHANGE HOW FIREARMS ARE MADE

With loaded firearms in hand and flags all around people gather for a 5 Mile Open Carry March for Freedom organized by Florida Gun Supply in Inverness, Florida, U.S. . REUTERS/Chris Tilley

"It's clear from the wording of the Second Amendment itself that it has nothing to do with individual gun ownership; nothing to do with self-defense; and nothing to do with assault weapons. The amendment speaks, not to the rights of well-armed individual citizens, but only to citizens as members of a group, a well regulated militia," he wrote.

"The founders saw no need to mention guns in the original Constitution. As many constitutional scholars and American historians have shown, the Second Amendment was added later by James Madison as part of a deal to secure the support of Patrick Henry and other White racist Virginians for confirmation of the Constitution."

Press cited Carol Anderson, an academic who "describes the anti-Blackness at the heart of the Second Amendment."

Sen. Ted Cruz, R-Texas, speaks during the Leadership Forum at the National Rifle Association Annual Meeting at the George R. Brown Convention Center Friday, May 27, 2022, in Houston. (AP Photo/Michael Wyke)

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He wrote that "the amendment has nothing to do with self-defense or allowing ownership of any kind of gun."

Press criticized Senator Ted Cruz as a "gun worshipper" for supporting the Second Amendment, which he claimed enabled the Uvalde shooter. "We are a sick nation indeed, if we allow that idiocy to stand," he wrote.

"We are condemned to more and more mass killings until we do the right thing: Stop arguing about the Second Amendment and just get rid of it."

Joe Silverstein is a production assistant for Fox News Digital.

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CNN op-ed calls for repeal of the Second Amendment: Let's just get rid of it - Fox News

The Reporters Committee for Freedom of the Press announced Tuesday the recipients of this years Freedom of the Press Awards, which recognize the accomplishments of leaders in the news media and legal fields whose work embodies the values of the First Amendment.

The honorees for 2022 are:

This years honorees are exceptional leaders in their fields, and their impressive bodies of work represent the best of our free press and those who defend it, said Stephen J. Adler, chair of the Reporters Committee for Freedom of the Press. Were thrilled to recognize their dedication to standing up for the newsgathering rights of journalists and producing investigative and accountability reporting to inform communities across the country.

The 2022 Freedom of the Press Awards will be held on October 11, 2022, at the Ziegfeld Ballroom in New York City. The awards dinner is co-chaired by Chairman and Publisher of The New York TimesA.G. Sulzbergerand CEO of the Americas and U.S. Senior Partner at Brunswick GroupNikhil Deogun.

The dedication, tenacity and perseverance of this years Freedom of the Press Award winners are what make them stand out as leaders in journalism and media law, said Bruce D. Brown, executive director for the Reporters Committee for Freedom of the Press. From their courageous reporting that challenges the status quo and better informs communities, to their decades-long dedication to bringing people the news they need and protecting journalists legal rights, each of our honorees embodies the First Amendment in their own way. Were so proud to celebrate them and their accomplishments.

The Reporters Committee will introduce several new award designations during this years Freedom of the Press Awards celebration.

SahanJournalwill be recognized with the Reporters Committees fourth Rising Star Award, which honors an up and coming journalist, media lawyer or organization that has already made great strides in defending freedom of the press or who has conquered significant roadblocks in the course of telling an important story. The nonprofit online news organization is dedicated to covering Minnesota immigrants and communities of color, and to chronicling how these communities are changing and redefining what it means to be a Minnesotan.Mukhtar M.Ibrahim, the founding publisher and CEO, is among the first trained journalists of Somali background in Minnesota and in the country. Before launching Sahan Journal, he worked as a staff writer for The Star Tribune and Minnesota Public Radio News. In 2021, he was recognized as the Institute for Nonprofit News Emerging Leader.

Thomaswill be recognized with the Freedom of the Press Local Champion Award, which honors a journalist, attorney or organization whose work has had a significant impact locally. She is the founding editor and publisher ofMLK50: Justice Through Journalism, an award-winning nonprofit newsroom in Memphis focused on poverty, power and public policy. A 2016 fellow at the Nieman Foundation for Journalism at Harvard University, Thomas has worked for The (Memphis) Commercial Appeal, The Charlotte Observer, The Tennessean and The Indianapolis Star. As part of ProPublicas 2019 Local Reporting Network, sheinvestigatedthe rapacious debt collection practices of a nonprofit hospital, which led the hospital to raise the pay of its lowest-paid workers to $15 an hour and erase nearly $12 million in hospital debt for more than 5,300 defendants. Her honors include the2020 Selden Ring Award, the 2019 National Association of Black Journalists Best Practices Award and being named the 2018 Journalism and Women Symposiums Journalist of the Year.

Khanwill be recognized with the Freedom of the Press Catalyst Award, which honors a journalist or organization whose reporting has had a significant impact. Her investigations forThe New York Times Magazine, the PBS seriesFRONTLINE, andBuzzFeeds investigations teamhave exposed major myths of war, prompting widespread policy impact from Washington to Kabul, and winning nearly a dozen awards. Most recently, her groundbreaking investigation examining civilian deaths resulting from U.S. airstrikes in the Middle East since 2014 for The New York Times, The Civilian Casualty Files, received the2022 Pulitzer Prize for International Reporting. Khan is the Patti Cadby Birch Assistant Professor at Columbia Journalism School, where she is also the inaugural Director of the Simon and June Li Center for Global Journalism, and co-founder of The Gumshoe Group. She also serves as a member of the Board of Directors of the Pulitzer Center and the Board of Governors of the Overseas Press Club of America.

BaineandWoodruffwill each be recognized with the Freedom of the Press Career Achievement Award, which honors an individual with a long history of upholding the value of freedom of the press throughout their career.

As one of the nations leading First Amendment attorneys, Baine has defended freedom of speech, freedom of the press, and freedom of religion in state and federal courts throughout the country, including the U.S. Supreme Court. In his more than four decades at Williams & Connolly, he has represented The Washington Post and other major news organizations and entertainment companies, including ABC, CBS, NBC, CNN, Fox, HBO, Sony Pictures and others in a variety of cases involving First Amendment issues. Baine has been recognized repeatedly by Chambers USA as one of two Star Individuals (Nationwide) in First Amendment Litigation.

Woodruffs career as an award-winning broadcast journalist has spanned more than four decades at NBC, CNN and PBS. She served as White House correspondent for NBC News from 1977 to 1982, followed by one year as chief Washington correspondent for NBCs Today Show. She first joined PBS in 1983 as chief Washington correspondent, and later anchored PBS award-winning documentary series, Frontline with Judy Woodruff. After moving to CNN in 1993, she served for 12 years as an anchor and senior correspondent, before returning to the NewsHour in 2007. In 2013, she and the late Gwen Ifill were named the first two women to co-anchor a national news broadcast. She is also a founding co-chair of the International Womens Media Foundation and has served as a longtime Steering Committee member of the Reporters Committee for Freedom of the Press.

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Sahan Journal to be honored with Rising Star Award from Reporters Committee for Freedom of the Press. - Sahan Journal

Lawyers for Gov. Ron DeSantis and Attorney General Ashley Moody are fighting an attempt to block a state law and regulations that limit the way race-related issues can be taught in public schools and in workplace training.

In a court document filed last week, the lawyers argued Chief U.S. District Judge Mark Walker should reject a request for a preliminary injunction in a lawsuit filed in April after DeSantis signed the controversial law (HB 7). Walker is scheduled to hold a hearing June 21 on the preliminary-injunction issue, according to a court docket.

Plaintiffs in the case allege that the law and regulations violate First Amendment rights and are unconstitutionally vague. But in the 60-page document filed last week, lawyers for DeSantis and Moody disputed that the restrictions violate speech rights in schools and workplaces.

Here, the act does not prevent the states educators from espousing whatever views they may hold, on race or anything else, on their own time, and it does not prevent students from seeking them out and listening to them, the document said. All it says is that state-employed teachers may not espouse or advocate in the classroom views contrary to the principles enshrined in the act, while they are on the state clock, in exchange for a state paycheck. The First Amendment does not compel Florida to pay educators to advocate ideas, in its name, that it finds repugnant.

But in an April motion for a preliminary injunction, lawyers for the plaintiffs argued that DeSantis and other Republican leaders banned teachers and employers from endorsing a litany of opinions about race that had been stuck in their craw, such as institutional racism, white privilege and critical race theory.

This constitutional challenge is not about whether these ideas are right or whether they should be taught throughout Floridas schools and workplaces, the 53-page motion said. Rather, it is about an attempt by Floridas conservative politicians to silence exchange of these ideas and win a so-called culture war through legislative and executive fiat.

DeSantis this year made a priority of passing the law which he dubbed the Stop Wrongs Against our Kids and Employees Act, or Stop WOKE Act. It came after the State Board of Education last year passed regulations that included banning the use of critical race theory, which is based on the premise that racism is embedded in American society and institutions.

The law, which is scheduled to take effect July 1, lists a series of race-related concepts that would constitute discrimination if taught in classrooms or in required workplace-training programs.

As an example, part of the law labels instruction discriminatory if it leads people to believe that they bear responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin or sex.

As another example, the law seeks to prohibit instruction that would cause students to feel guilt, anguish or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin or sex.

The plaintiffs in the lawsuit are two public-school teachers, a University of Central Florida associate professor, a child who will be a public-school student in the coming year and the president of a firm that provides workplace training.

In the motion for a preliminary injunction, the plaintiffs attorneys from the Jacksonville firm of Sheppard, White, Kachergus, DeMaggio & Wilkison, P.A. wrote that the law and regulations intrude on the free expression and academic freedom of Floridas teachers by imposing a pall of orthodoxy over the classrooms.

These provisions suppress a wide range of viewpoints accepted by academics for the sole reason that Floridas conservative lawmakers disagree with them, the motion said. Even if such disagreement could form a legitimate government interest, Governor DeSantis failed to identify any actual examples of what he calls critical race theory being taught in Florida public school classrooms.

The plaintiffs attorneys also alleged that the restrictions ensure students learn only a white-washed version of history and sociological theories that ignore systemic problems in our society that create racial injustices.

But in the document filed last week, the lawyers for DeSantis and Moody wrote that the plaintiffs who are educators have no constitutional right of academic freedom to override curriculum policies adopted by democratically elected lawmakers.

Plaintiffs First Amendment challenge to the educational provisions fails because the act regulates pure government speech the curriculum used in state schools and the in-class instruction offered by state employees and the First Amendment simply has no application in this context, the document said.

The states lawyers, who also separately filed a motion last week seeking to dismiss the case, argued in the preliminary-injunction document that the state restrictions are intended at stamping out discrimination.

The balance of the equities and the public interest weigh decisively against enjoining the act. (The) state has a compelling constitutionally imperative interest in ending discrimination based on race and other immutable characteristics, and enjoining the act will sanction conduct and curricular speech that Florida has determined, in the exercise of its sovereign judgment, is pernicious and contrary to the states most cherished ideals, wrote the states lawyers, including attorneys from the Washington. D.C. firm of Cooper & Kirk, PLLC.

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State fires back in race-related instruction fight - Palm Coast Observer

False statements, misdirection, half-truths and outright lies: When promoted and repeated in the echo chambers of social media, they can shape attitudes, influence policy and erode democracy. As the psychologist Daniel Kahneman has said, you can make people believe in falsehood through repetition, because familiarity is not easily distinguished from truth.

Disinformation and misinformation have undermined trust in our electoral systems, in vaccines and in the horrific reality of the Uvalde school shooting. They began to swirl in the immediate aftermath of the Jan. 6 attack on the United States Capitol. Intelligence officials warn that with the midterm elections approaching, there will likely be a tsunami of extremist disinformation.

To better understand the phenomenon, lets first define our terms. Disinformation is false speech designed to deceive you. Misinformation is speech that is wrong. Disinformation is intentional; misinformation may not be.

Disinformation isnt new its been around as long as information. But, today, disinformation seems to be everywhere. With the instantaneous and mass distribution of user-generated content social media, there are no gatekeepers and no barriers to entry. Anyone can create disinformation, share it, promote it. Were all accomplices. Were all victims.

The largest funnel of disinformation is domestic yes, extremists and nationalist groups, but also your Uncle Harry. Especially your Uncle Harry. Disinformation flourishes in times of uncertainty and divisiveness. But disinformation doesnt create divisions it widens them.

Russias role in sowing disinformation around their annexation of Crimea in 2014 became a template for their interference in the American elections of 2016 and 2020. But Russia is by no means the only bad actor the Chinese and the Iranians are also in the game.

Here is a smart starter set of books on disinformation that help explain its history, its techniques, its effects and how to combat it.

The English word disinformation comes from the Russian dezinformatsiya, a Soviet-era coinage describing one of the tactics of information warfare. Rids Active Measures is a colorful history of modern Russian disinformation. From the beginning, he writes, the Russians saw disinformation as an attack against open societies, against a liberal epistemic order. It was meant to erode the foundations of democracy by undermining trust and calling into question what was a fact and what was not.

The brilliant insight of Russian disinformation is that it neednt be false the most effective disinformation usually contains more than a kernel of truth. Sometimes it can be a single bogus paragraph inserted into an otherwise genuine document.

In the 1980s, the Russians popularized the false claim that H.I.V. was created in a U.S. lab in Ft. Detrick, Md. But that canard required bribing obscure journalists in remote countries and took decades to reach a wide audience. Now, a young Russian troll in St. Petersburg can create a false persona and push out dozens of tweets in an hour at almost no cost with almost no consequence and reach millions of people in an hour. The internet, Rid writes, was optimized for mass disinformation.

The purveyors of disinformation exploit certain basic cognitive biases. The most often cited is confirmation bias, which is the idea that we seek information that confirms what we already believe. In The Misinformation Age, the philosophers OConnor and Weatherall show that even scientists, who by definition are seeking the impartial truth, can be swayed by biases and bad data to come to a collective false belief.

All human beings have a reflexive tendency to reject new evidence when it contradicts established belief. A variation of this is the backfire effect, which states that attempts to disabuse someone of a firmly held belief will only make them more certain of it. So, if you are convinced of the absurd accusation that Hillary Clinton was running a child sex trafficking ring from Cosmic Pizza in Washington D.C., you will double down when I explain how patently false the claim is.

The authors contend that mainstream media coverage can often amplify disinformation rather than debunking it. All the news stories about Cosmic Pizza likely confirmed the prejudices of the people who believed it, while spreading the conspiracy theory to potential new adherents. For decades, Russian information warfare and other state promoters of disinformation have exploited the presss reflex to write about both sides even if one side is promoting lies. This is a trap, the authors argue. Treating both sides of an argument as equivalent when one side is demonstrably false is just doing the work of the purveyors of disinformation.

The rise in disinformation aided by automatic bots, false personas and troll farms is leading some thinkers to conclude that the marketplace of ideas the foundation of modern First Amendment law is experiencing a market failure. In the traditional marketplace model, the assumption is that truth ultimately drives out falsehood. That, suggests Hasen in Cheap Speech, is hopelessly nave. Hasen, a law professor at University of California, Irvine, posits that the increase in dis- and misinformation is a result of what he calls cheap speech, a term coined by Eugene Volokh, a law professor at U.C.L.A. The idea is that social media has created a class of speech that is sensational and inexpensive to produce, with little or no social value.

In the pre-internet era, disinformation was as difficult and expensive to produce as truthful information. You still had to pay someone to do it you still had to buy ink and paper and distribute it. Now, the distribution cost of bad information is essentially free, with none of the liability of traditional media. In the age of cheap speech, the classic libertarian line that the cure for bad speech is more speech seems dangerously outdated.

Hasen puts forth a number of solid recommendations on how to combat disinformation more content moderation, more liability for the platforms, more transparency of algorithms but adds a very specific one: a narrow ban on verifiably false election speech. The idea is that elections are so vital to democracy that even though political speech has a higher standard of First Amendment protection, false information about voting should be removed from the big platforms.

Throughout history, mis- and disinformation have always been the tools of autocrats and dictators. Whats new in the 21st century, writes Nam, a political scientist, is the culture of post-truth. Post-truth is not untruth or lies it is the idea that there is no truth, that there is no such thing as objectivity or even empirical reality. This was beautifully described by Hannah Arendt in The Origins of Totalitarianism that people believe everything and nothing, think that everything was possible and nothing was true. Arendt published those words in 1951, but as Nam writes, the modern combination of technical empowerment and economic disempowerment has resulted in a frontal attack on a shared sense of reality.

Nam observes that what was different in Arendts day was that totalitarian rule was achieved through heavy-handed central control and censorship. Today, its accomplished through the opposite: radically open systems that can swamp the truth with falsehood, innuendo and rumor. Autocrats understand that social media is an unrivaled tool of populism and polarization. More information doesnt mean more democracy, as internet evangelists believed. Nam writes that the post-truth era was foreshadowed by 1980s intellectuals like Michel Foucault, who argued that knowledge and facts were a social construct manufactured by the powerful.

Each of these books sees disinformation as poison in the well of democracy. Each contains workable ideas for reducing the amount of disinformation in the world. All agree that the platforms should be neutral when it comes to politics, but not neutral about facts.

Yes, algorithms and bots and troll farms accelerate and increase disinformation, but disinformation is not just a supply problem its a demand problem. We seek it out. It would make things easier if we were all born with internal lie detectors until then, trust but verify, check your facts, beware of your own biases and test not only not only information that seems false, but also especially what you reflexively assume is true.

Richard Stengel was the under secretary of state for public diplomacy and public affairs from 2013 to 2016, and is the author of several books, including, most recently, Information Wars: How we Lost the Global Battle Against Disinformation and What We Can Do About It.

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The Best Books to Read on Disinformation: Its History, Techniques and Effects - The New York Times

The fictional character Bill Lumbergh of Office Space is pictured alongside New York Gov. Kathy Hochul

If New York Governor Kathy Hochul (D) could go ahead and read up on the First Amendment, that would be great.

During interviews with reporters in the days following Saturdays horrific mass shooting in Buffalo, New York, Hochul summarized free speech jurisprudence with a disastrous inaccuracy seriously unbecoming a sitting government official.

In the video below, Hochul can be seen in an interview with ABCs George Stephanopoulos in which she remarked that depraved ideologies of white supremacy are fermenting on social media and spreading like a virus. Hochul called on tech companies to do more to monitor and shut down dangerous individuals on social media platforms. Without distinguishing between private action (such as the kind of user-monitoring Hochul was suggesting be undertaken by private companies) and government action, Hochul ended the interview by summarizing her take on government power to regulate speech.

Ill protect the First Amendment any day of the week, Hochul pledged. But you dont protect hate speech. You dont protect incendiary speech. Youre not allowed to scream fire in a crowded theater. There are limitations on speech

Theres a lot to unpack in Hochuls statements a bit of which is correct, but most of which is dead wrong.

Lets start with some First Amendment basics. Under the First Amendment, freedom of speech is a protected right. Like other rights, however, free speech is not absolute. Certainly, government regulation of speech is to be viewed with suspicion, because there are stringent limitations within which the government is authorized to intrude on free speech.

Over the decades, an enormous amount of jurisprudence has developed that carves out specific rules for how the government (both local and national) may legally regulate speech. Some categories of speech have been deemed unprotected by the First Amendment, such as defamation and perjury. Of course, to ascertain whether a particular statement amounts to defamation or perjury (and thus loses First Amendment protection), one must engage in an independent analysis. The same is true for speech that is unprotected because it constitutes obscenity or fighting words.

When Hochul referenced the ever-misunderstood fire-in-a-theater example, she likely did so as a shorthand way of making the point that there are plenty of circumstances in which it is absolutely legal for the government to regulate and even prohibit speech. The point was accurate (though Hochuls example is woefully bad at making it).

As an aside, my Law&Crime colleague Aaron Keller discussed the theater-fire example at length in 2021 when President Joe Biden clumsily tried to make the same point in the same way that Hochul did. Keller explained:

Biden said, in essence, that the Constitution doesnt protect the right to yell fire in a crowded movie theater. Hes wrong. People can constitutionally yell fire in crowded gatherings if there is an actual fire. The often-misquoted phrase usually fails to acknowledge that key distinction.

Because Biden and Hochul left out the key falseness aspect of the quote, the meaning isnt quite correct. Some speech is protected and therefore essentially untouchable by government regulation. Other speech is fair game for government regulation. The distinction has zero to do with theaters and everything to do with danger.

Besides, as Keller pointed out, there have been broader jurisprudential shifts that have long ago rendered as obsolete the well-worn and tired fire in a crowded theater trope. The theater/fire analogy is rooted in an Oliver Wendell Holmes, Jr. line in Schenck v. U.S., a 1919 case that was mostly overturnedbyBrandenburg v. Ohio in 1969. The quote somehow stuck around long after the law attached to it did not.

What about incendiary or hate speech?

Hochul listed incendiary and hate speech as two more categories that you dont protect. Once again, she has listed two more categories, neither of which are categorically unprotected under First Amendment law.

Brandenburg v. Ohio sets out the basic analytical framework courts use to evaluate free speech claims. Under Brandenburg,speech can be prohibited if it is both (1) directed at inciting or producing imminent lawless action and (2) likely to incite or produce such action. In other words, what matters is the risk of danger. When speech is likely to create immediate lawbreaking or immediate danger, the government may indeed step in and prohibit that speech. This is why prohibitions against falsely alarming people in a crowded place in which a dangerous stampede may result would likely withstand constitutional scrutiny.

That said, however, proving that government action targeted only the kind of speech that would satisfy the Brandenburgrequirements is not a simple matter. Rarely does speech rise to the level of being likely to incite or produce imminent lawless action such that restriction of that speech can withstand a First Amendment challenge. Even when it does, the regulation in question cannot be overbroad, and must instead prohibit the unprotected speech without infringing on protected speech.

Indeed, the test is very, very strict: Brandenburg held that a speech at a Ku Klux Klan rally could not result in criminal punishment because the law which criminalized the speech didnt afford leeway for rhetoric however unpopular that didnt incite or produce imminent lawless action.

[T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, the Court wrote of the KKK speech, is not the same as preparing a group for violent action and steeling it to such action. (Most of the quote actually came from an earlier case.)

Hochul used the word incendiary, perhaps meant to be a synonym for incitement. At best, the usage leads to an incomplete statement. At worst, its just wrong.

Merriam-Webster defines incendiary as tending to excite or inflame. While it is certainly possible that some incendiary speech might rise to the level of risk set out by Brandenburg, the two concepts are surely different. One could easily imagine speech that tends to excite or inflame that does not necessarily threaten immediate lawlessness. Thus, Hochuls misspeak on this point creates its own standard by throwing in a legally irrelevant term and mischaracterizing one of the very narrow circumstances in which speech is unprotected.

Hochuls use of hate speech, though, is a far worse legal sin.

Hate speech is not a legal designation with a specific definition. Rather, it is a conversational term usually meant to characterize speech that is overtly offensive, and usually refers to racist, sexist, homophobic, or anti-Semitic slurs. Many use the term hate speech as a kind of corollary to the term hate crimes (the history of which I detail at length here) a lack of precision that often leads to a misunderstanding about the legal status of hate speech.

The U.S. Supreme Court has never ruled that hate speech constitutes a new category of unprotected speech. Some hate speech may be obscene, while some may incite violence; on those bases, such speech could be denied First Amendment protection. However, deeming speech as hateful or hate speech does not independently make that speech a proper target for government action.

Take the KKK speech that was the crux of the Brandenburg test: if a piece of so-called hate speech does not produce or incite imminent lawless action, but rather stands on its own as a vile and loathsome thought in the marketplace of ideas, then it cant be prosecuted.

Often, when the First Amendment is discussed in legal circles, hate speech is used as a primary example of the kind of speech that is loathed but still legally protected. Against that backdrop, Hochuls declaration that she will protect the First Amendment any day of the week, but that you dont protect hate speech, is a truly pitiful statement on the governors understanding of her own responsibility as an executive official.

On Wednesday, Gov. Hochul held a press conference announcing an executive order to establish a unit to combat domestic terror. Hochul slammed the mainstreaming of hate speech, particularly online.

Hochul, announcing a threat assessment management program, said the dedicated domestic terror unit would develop best practices to address the homegrown rise in extremism.

Hate just breeds more hate, Hochul said. Think of all the people who saw the livestream of the Buffalo shooting.

They witnessed this in real time, she added. The suspect wanted people to see this.

That is a direct threat to New Yorkers, Hochul continued. The governor said she also made a referral to the New York Attorney Generals Office to investigate the social media platforms (see: Twitch) that broadcasted the horrific attack in Buffalo and legitimized replacement theory.

Were watching you now. We know what youre up to, Hochul said, addressing would-be domestic terrorists.

New York Attorney General Letitia James (D) issued a statement of her own Wednesday afternoon, announcing the very investigation of social media platforms that Hochul requested. Jamess office specifically mentioned Twitch, 4chan, 8chan, and Discord.

The terror attack in Buffalo has once again revealed the depths and danger of the online forums that spread and promote hate, Jamess statement said. The fact that an individual can post detailed plans to commit such an act of hate without consequence, and then stream it for the world to see is bone-chilling and unfathomable. As we continue to mourn and honor the lives that were stolen, we are taking serious action to investigate these companies for their roles in this attack. Time and time again, we have seen the real-world devastation that is borne of these dangerous and hateful platforms, and we are doing everything in our power to shine a spotlight on this alarming behavior and take action to ensure it never happens again.

[Images via YouTube/screengrab, ABC News screengrab]

This is an opinion piece. The views expressed in this article are those of just the author.

See the original post:

If Our Government Officials Understood the First Amendment That Would Be Great - Law & Crime

[Editors note: This is a version of an article published in the Out of Frame Weekly, an email newsletter about the intersection of art, culture, and ideas. Sign up here to get it in your inbox every Friday.]

Politicians were quick to call for restrictions on "hate speech" in response to the mass shooting that took the lives of 10 people at a Buffalo, New York grocery storean attack that police are investigating as a hate crime.

Byron Brown, the mayor of Buffalo, called for "ending hate speech on the internet" in media interviews after the murders.

"Hate speech should not be considered free speech, and we have to put limits on the ability for people to spread hate through the internet and through social media," he told National Public Radio.

Kathy Hochul, the state's Democratic governor, echoed Brown's words. She told ABC: "We will protect the right to free speech, but there is a limit. There is a limit to what you can do and [...] hate speech is not protected."

These comments are starkly inaccurate. The Supreme Court has repeatedly affirmed that so-called hate speech is protected under the First Amendment. While authorities can certainly take action against individuals for planning or threatening violence online, prohibiting people specifically for expressing ideological beliefs (even hateful ones) is a bad idea.

Has anyone who wants to ban hate speech ever laid out a coherent reason why doing so will in fact reduce the number of people who believe in violent ideologies? Is there any evidence that it will not simply push people who believe these ideas underground, where they will become more violent in reaction to their persecution?

Also, the ambiguous, subjective nature of banning certain ideas as hate speech lends itself to abusenot just theoretically, but also in reality. You probably heard of people given convictions for Internet trolling, such as Scottish YouTuber Mark Meechan in 2018. In a world where one person's dark humor is another person's violent racism, such cases are common. But also, did you know that France and Canada have used hate speech laws to prohibit protests against the State of Israel?

Supporters of freedom of speech have stated time and time again why this liberty is necessary for these and other reasons. But supporters of censorship like Hochul and Brown by definition do not believe in conversation and do not want to have that discussion. They want to exploit tragedies like the Buffalo shooting to guilt their opponents into accepting their demands. Beating the gavel of shock and bloodshed, they call for revoking basic constitutional liberties.

This is an authoritarian mentality that we must wipe outnot by censoring it like they would do, of coursebut by effectively communicating why it should be condemned.

Read the rest here:

Hate Crimes Are No Excuse to Throw Away the First Amendment | Matt Hampton - Foundation for Economic Education

In court, "truth" is more subjective than you may think.

THIS CASE IS DEAD AS WELL. AN 18 YEAR-OLD. >> HI, EVERYBODY. HELLO THERE. I'M DAN HAGGERTY. THIS IS THE PART OF THE NEWSCAST. WE DISCUSS THE NEWS A LITTLE BIT NOW WORKING ON A FEW DIFFERENT THINGS. BUT I DO WANT TO CHECK IN CHECK IN WITH YOU QUICKLY TONIGHT IN JUST A COUPLE OF E-MAILS BECAUSE YOU'VE BEEN SENDING SO MANY OF THEM LIKE BETSY FROM CHAPEL HILL, WHO IS APPARENTLY A BIG FAN, BUT SHE'S A LITTLE CONFLICTED. SHE EMAILS DAN WRAL DOT COM AND SAID THIS. WE FIND OURSELVES TO BE JEOPARDY. LOYALISTS IN COMMERCIAL BREAKS. WE SWITCHED WRAL NEWS. IF YOU'RE RUNNING AN IN-DEPTH FEATURE, WE'VE CAUGHT A FEW, BUT WE DON'T KNOW WHEN YOUR SEGMENTS TYPICALLY RUN ARE THE WEEKLY OR ARE THEY ON A PARTICULAR DAY AND WE JUST HAVE NOT FOUND A PATTERN YET. THAT'S PROBABLY BECAUSE THERE ISN'T A PATTERN YET, BUT WE'RE WORKING ON THAT. I'M TRYING TO BUILD A LITTLE BIT OF A TEAM POSSIBLY AND HOPEFULLY SOON WILL BE DOING SOMETHING EVERY NIGHT. IN THE MEANTIME, THAT C. WHO CARES ABOUT JEOPARDY. HONESTLY, I KNOW IT'S ON THE SAME TIME AS ME. I KNOW IT RECENTLY PASSED 60 MINUTES TO BECOME THE MOST WATCHED NON-SPORTS SHOW ON TV. BUT LET'S SEE. DO YOU REALLY WANT TO FOLLOW THE PACK AND WATCH ONE OF THE MOST POPULAR THINGS IN AMERICAN CULTURE OR AND HEAR ME OUT HERE OR >> YOU WANT TO WATCH ME. >> A GUY SPENDS SOMETIMES 8 STRAIGHT MINUTES TALKING ABOUT THINGS LIKE BRIAN AND THE OLD SUPREME COURT OPINIONS TO A COOLER THAT WAY. IN FACT, YOU CAN FIND EVERYTHING I TALK ABOUT ON WRAL'S NEW YOUTUBE CHANNEL HAVE AN ENTIRE PLAYLIST CALLED IN DEPTH WITH DAN HAGGERTY WERE STILL KIND OF FINE TUNING THE VISUALS. IF YOU LOOK AT A COUPLE OF THE THUMBNAILS LIKE THIS ONE DOESN'T EXACTLY SAY LOOK AT ME, I'M GOING TO SAY SOMETHING SMART, BUT WE'RE WORKING ON IT. OKAY. SO PLEASE STICK WITH US. YOU'LL FIND ALL THE TOPICS THAT YOU EMAIL ME ABOUT THAT WE DISCUSS HERE DURING THIS SEGMENT LIKE MY RECENT DISCUSSION WITH YOU ABOUT POLITICAL ADS, YOU MAY REMEMBER THAT WE TALKED TO A LAWYER WHO WORKS WITH CAMPAIGNS TO CHECK THEIR ADS BEFORE THEY AIR. IT CONFIRMED TO US SOMETHING THAT WAS KIND OF HARD TO BELIEVE FOR A LOT OF PEOPLE THAT EFFECTIVELY THESE CANDIDATES CAN LIE IN THESE ACTS BECAUSE OF THE FIRST AMENDMENT. AND IN THAT SEGMENT, I DISCUSSED THE CONCERNS THAT A VIEWER NAMED CAROL SHARED WITH ME RECENTLY. CARROLL SAID DAN. I WONDER ABOUT THE ETHICS OF THE STATIONS TO RUN ADS. IF THE AD IS DECLARED FALSE, BY FACT, CHECKED, WHY IS THE AD NOT PULLED THE MONEY? IS THE MONEY VALUED ABOVE THE TRUTH. I'M DISTURBED BY AS NOT BEING PULLED THE NEGATIVE. CHERI BEASLEY AD IS ONE THAT STICKS OUT. AND I KNOW THAT IT FEELS KIND OF STRANGE, BUT THE TRUTH ISN'T NECESSARILY PART OF THAT TRANSACTION. AND IN COURT, TRUTH IS MORE SUBJECTIVE THAN YOU MAY THINK. THAT'S WHY WE HAVE PEOPLE LIKE PAUL SPAY AND POLITIFACT TO EXPLAIN THE FREE SPEECH THAT YOU HEAR DURING OUR COMMERCIAL BREAK. SOMETIMES PAUL CARROLL MENTION CHERI BEASLEY AND ADD THAT RUNS ON OUR AIR MAKING SOME CLAIMS ABOUT HER RULINGS AND A DEATH SENTENCE CASE AND AN ASSAULT ON A MINOR. >> THE FORMER SUPREME COURT JUSTICE CHERI BEASLEY GO EASY ON DEFENDANTS IN A PAIR OF SENSITIVE CASES. THAT'S WHAT THE NATIONAL REPUBLICAN SENATORIAL COMMITTEE SUGGEST ITS NEW ATTACK AD. TAKE A LOOK. >> THE WORST THING COMES. THE STATION AND CHIEF JUSTICE SHERRY BEASLEY FAILED TO PROTECT THEM. THE MURDERER SHOW DOUBLING THE FACE BC. THEY CAME TO HIS SON'S MEN CONVICTED OF SEXUALLY ASSAULTING A 7 YEAR-OLD GIRL. SHE THREW OUT THE INDICTMENT. >> BEASLEY IS A DEMOCRATIC CANDIDATE IN NORTH CAROLINA'S U.S. SENATE RACE WILL TAKE ON REPUBLICAN TED BUDD IN NOVEMBER. THE AD MAKES 2 CLAIMS ABOUT HER THAT SHE VACATED THE DEATH SENTENCE FOR SOMEONE WHO SHOT A TEENAGER AND THAT SHE THREW OUT THE INDICTMENT OF A MAN CONVICTED OF ASSAULTING A YOUNG GIRL. THE AD IS SOMEWHAT ACCURATE. BUT LET'S BE CLEAR ABOUT SOMETHING NEITHER OF THESE CASES WAS ABOUT THE DEFENDANT'S ACTIONS AND THE DEATH SENTENCE CASE. A MAN HAD BEEN CONVICTED OF MURDERING A 17 YEAR-OLD. HE WAS INITIALLY GIVEN THE DEATH PENALTY. BUT THEN YOU SOMETHING CALLED THE RACIAL JUSTICE ACT TO GET HIS SENTENCE REDUCED TO LIFE IN PRISON. STATE LAWMAKERS THEN REPEAL THE RACIAL JUSTICE ACT AND THE STATE SUPREME COURT WAS ASKED SHOULD THE MEN BE SENT BACK TO DEATH ROW BEASLEY IN THE COURT RULED NO, THAT WOULD BE DOUBLE JEOPARDY. SO HE'LL SERVE LIFE IN PRISON. AS FOR THE CASE WITH THE YOUNG GIRL, THE MAN WHO HAD BEEN CONVICTED ARGUED TO HAVE HIS CASE THROWN OUT BECAUSE PROSECUTORS DIDN'T COMPLY WITH STATE LAW AS IT APPLIES TO IDENTIFYING HIS ACCUSER. THE INDICTMENT REFERRED ONLY TO THE GIRL AS VICTIM ONE. THE COURT RULED 42 THAT THE INDICTMENT DID NOT DISTINGUISH THE DEFENDANT ACCUSER FROM OTHER VICTIMS. BEASLEY IN THE 3 OTHER CITED THIS STATE LAW WHICH SAYS INDICTMENTS MUST HAVE SOME FORM OF IDENTIFYING INFORMATION FOR THE VICTIM. SO ALTOGETHER, THAT AD HAD SOME ACCURATE INFORMATION, BUT IT LEAVES OUT A LOT OF IMPORTANT CONTEXT AND THAT'S WHY THE TREATIES OR A GET AFTER IT. >> TO READ MORE ABOUT THOSE CASES, GO TO WRAL DOT COM. THANKS TO PAUL TRYING TO HELP US TO UNDERSTAND WHAT YOU SEE IN THESE ADS AND THEY'RE GOING TO BE PLENTY MORE AS WE APPROACH THE NOVEMBER ELECTION. BUT THERE'S A LOT MORE IN GENERAL TO TALK ABOUT. SO PLEASE E-MAIL ME AT DAN. >> AT WRAL DOT COM, NOT TRY TO RESPOND TO EVERY SINGLE E-MAIL. PLEASE BE PATIENT. I GET A TON OF THEM. SO IF YOU HAVEN'T GOTTEN A RESPONSE YET, TRUST ME. I'M WORKING ON IT. IF YOU HAVE SOMETHING ELSE TO SAY BE PERSISTENT. LIKE KARL WHO SAID, I ENJOY YOUR PROVOKING DISCUSSIONS OF CONTROVERSIAL QUESTIONS, BUT I HAVE NOT SEEN ONE PRESSING ISSUE TREATED. WHAT HAPPENED WITH KAT CAMPBELL IS VISIT TO ICELAND. WE WERE SUPPOSED TO GET DAILY REPORTS WITH PICTURES OF WATERFALLS AND VOLCANOES, ET CETERA. BUT I SAW ONLY ONE ON THE FIRST DAY OF ARRIVAL WITH A HUGE CHURCH. THEN SUDDENLY SHE WAS BACK ON THE AIR AS IF NOTHING HAD HAPPENED. NO WORD MENTION OF ICELAND, WRAL TRYING TO COVER SOMETHING UP. YES. IS A SECRET AGENT.

Excerpt from:

First amendment allows political ads to run -- even if they have misleading statements - WRAL News

The defamation trial between actors and former partners Johnny Depp and Amber Heard is close to its conclusion. Both Depp and Heard have taken the stand. Right now, Heard's team is in the midst of presenting her side of the story. According to reports, Depp is expected to be called to the stand again by Heard's team this Monday.

Depp, widely known for his role in the Pirates of Caribbean franchise, is suing Heard, his ex-wife, for defamation over an opinion piece she wrote for The Washington Post and is seeking $50 million. Heard is also countersuing for $100 million.

Here's what else you should know about the trial.

Heard, 36, is a model and actress who starred in 2018's Aquaman. She was married to Depp, 58, from 2015 to 2016. The pair divorced in August 2016.

In December 2018, Heard wrote an op-ed for The Washington Post titled, "I spoke up against sexual violence -- and faced our culture's wrath. That has to change." She said in the article that she had become "a public figure representing domestic abuse," but didn't mention Depp's name.

Depp alleges Heard defamed him in the op-ed. During opening statements, Depp lawyer Benjamin Chew said Heard's article clearly refers to Depp, and that Heard's "false allegations had a significant impact on Mr. Depp's family and his ability to work in the profession he loved."

Benjamin Rottenborn, a lawyer for Heard, said that the First Amendment protects what she wrote. "The article isn't about Johnny Depp," Rottenborn said. "The article is about the social change for which she is advocating and that the First Amendment protects."

Rottenborn also said evidence in the trial will show that Heard did suffer domestic abuse at the hands of Depp, and it was physical, emotional, verbal and psychological.

Depp is faced with proving Heard knowingly made false claims. Heard has filed a countersuit against Depp, which will be decided as part of the trial. She's claiming Depp defamed her when his former lawyer referred to her allegations of abuse as a hoax.

Depp testifies.

Depp lost a defamation case that involved Heard in 2020. He had sued British tabloid The Sun over a headline calling him a "wife beater." Depp filed his current defamation suit in 2019, the year after she wrote the op-ed.

Heard just finished taking the stand this week. When asked about the first time Depp allegedly hit her, she described an instance when she'd asked Depp about what one of his tattoos said, and he'd replied "wino." "I just laughed because I thought he was joking, and he slapped me across the face," she said. Heard also testified that Depp sexually assaulted her shortly after they were married.

During his testimony earlier in the trial, Depp said that Depp he never struck Heard but that she displayed violence during their relationship. Depp alleged she threw a vodka bottle at his hand during an argument, cutting off a part of his middle finger.

Johnny Depp is set to take the stand again on Monday.

Both teams are expected to deliver closing arguments on May 27. After that the jury will deliberate on its decision.

According to sources, Elon Musk is no longer expected to take the stand.

Read more here:

The Johnny Depp and Amber Heard Defamation Trial: Everything to Know - CNET