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First Amendment to the Constitution | Community | hometownsource.com - ECM Publishers

America First Legal (AFL), a right-wing group whose team includes several former Trump administration officials, is urging the Supreme Court to do even more to shatter whats left of the wall between church and state.

On Tuesday, June 28, the group issued a statement essentially calling for a total overhaul of the First Amendments establishment clause, a key provision separating church and state. The statement arrived one day after the Supreme Court cracked part of the clauses foundation with its ruling in Kennedy v. Bremerton. In that case, the courts far-right majority ruled that public school officials in Bremerton, Washington, violated the First Amendment rights of high school football coach Joseph Kennedy when they fired him following a controversy stemming from his ritual of praying at the 50-yard line during football games. The 6-3 decision effectively overruled a 1971 precedent for interpreting the First Amendments establishment clause.

While the establishment clause exists to keep the government from establishing an official religion in the United States, or doing anything that might favor one religion over another, the AFL is now hopeful that the Supreme Court will eventually disincorporate the establishment clause in a future case. Doing so, the AFL suggests, would allow states to decide whether and to what extent they will establish religion within their borders.

The AFLs vice president and general counsel Gene Hamilton a former Trump official in the Departments of Justice and Homeland Security, whose hits include axing DACA and helping create the infamous family separation policy argued in a statement that the original intent of the establishment clause was to let the states decide just how much they want to separate church and state.

We are pleased that the Supreme Court decided in Coach Kennedys favor, Hamilton said. Perhaps the Court will, in a future case, finally restore the original meaning of the Establishment Clause and disincorporate it as to the states. But for today, we celebrate with Coach Kennedy and all Americans who value religious freedom.

Allowing individual states to establish their own official religions is just one possible tidal wave-sized ripple that could follow Kennedy v. Bremerton. Considering the current Courts apparent disdain for established precedent, it could also pave the way for overturning the landmark 1962 case that ruled prayer in public schools was unconstitutional.

Kennedy v. Bremerton is also just one of two major SCOTUS rulings this term to take a crack at the long-established boundaries between church and state. Earlier in June, the right-wing majority ruled in Carson v. Makin that taxpayer money from a tuition assistance program in Maine could be used to send kids to private religious schools.

Read more:

Trumpists Call on Supreme Court to Let States Establish Religion Within Their Borders - Rolling Stone

The U.S. Supreme Court threw womens rights under the bus yesterday and protests were instantaneous and large. See the Arkansas Capitol last night and you can also see a good crowd at Fayetteville in 40/29s tweet.

Thats good but only symbolic venting. Relief will be a long time coming, if ever.

Also concerning are other trappings of rule by minority that the Supreme Court reversal of Roe embodies along with the minority-favoring Electoral College, states rights only for gun laws with fascist approval, the end of voting rights, political gerrymandering and the end of government regulation (except for that of womens bodies).

Also: what about the First Amendment? There was violence last night. Against speech and assembly, theoretically protected by the First Amendment. Check out:

Arizona:

Or Los Angeles, where police declared an assembly unlawful and broke it up:

Or Cedar Rapids, where a truck drove into a crowd of demonstrators (the second truck-demonstrator collision in Iowa in a week):

And from Rhode Island (the cop has been suspended from duty)

And from a Virginia legislator:

We should be grateful that Secretary of State John Thurston didnt unleash teargas and non-lethal, face-breaking loads against the hundreds who gathered in Little Rock last night.

Count on the Arkansas legislature to join the assault on the First Amendment to further enhance Arkansass status as the most anti-woman state in the country. Interstate travel; advertising for abortion options; medication by mail; advice and financial support by Arkansans for Arkansas women? Expect them all to be under attack. And youll also soon see how empty the assurances were from the Supreme Court majority that same-sex relationships and marriage and contraception are not endangered by Fridays ruling. It provided a road map, as Clarence Thomas made clear, to erode those hard-won rights as well. Trust Kavanaugh or Barrett or Gorsuch not to go along with Thomas, Alito and Roberts on rolling back decisions they opposed? Even Susan Collins might not offer assurances on the next go-round.

Go here to see the original:

The abortion apocalypse threatens the First Amendment, too - Arkansas Times

Did George Washington in his first act as president violate the first principle soon to be enshrined in the First Amendment?

Did the Congress that approved the First Amendment compel him to do so?

On April 7, 1789, three weeks before Washington was inaugurated, the Journal of the Senate reported that the Senate had ordered "a committee ... to take under consideration the manner of electing Chaplains, and to confer thereupon with a committee of the House of Representatives."

On April 15, 1789, the committee reported back: "That two Chaplains, of different denominations, be appointed to Congress, for the present session, the Senate to appoint one, and give notice thereof to the House of Representatives, who shall, thereupon, appoint the other; which Chaplains shall commence their services in the Houses that appoint them, but shall interchange weekly."

Two days later, the House concurred.

Then, on April 25, 1789, the Journal of the Senate reported: "The Senate proceeded to the appointment of a Chaplain, in the manner agreed upon the 15th of April; and (t)he right reverend Samuel Provoost was elected."

Two days after that, the House resolved: "That this House will, on Friday next, proceed by ballot to the appointment of a Chaplain to Congress on the part of this House."

Two days after that, the House agreed to a resolution, already adopted by the Senate, that said: "That after the oath shall have been administered to the President, the Vice-President and members of the Senate, the Speaker and members of the House of Representatives, will accompany him to St. Paul's Chapel to hear divine service performed by the Chaplains of Congress."

The Congress was then meeting at Federal Hall in New York City.

On April 30, 1789, Washington stood on the balcony of that hall and was sworn in as this nation's first president.

"Washington took the oath with his hand on the Bible, and kissed the Bible after taking the oath," says the Mount Vernon website.

The Journal of the Senate includes the text of his inaugural address.

"(I)t would be peculiarly improper to omit, in this first official act," said Washington, "my fervent supplications to that Almighty Being who rules over the universe who presides in the councils of nations and whose providential aids can supply every human defect, that his benediction may consecrate to the liberties and happiness of the people of the United States, a government instituted by themselves for these essential purposes: and may enable every instrument employed in its administration to execute with success, the functions allotted to his charge.

"In tendering this homage to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own; nor those of my fellow citizens at large, less than either," Washington continued.

"No people can be bound to acknowledge and adore the invisible hand, which conducts the affairs of men, more than the people of the United States," he said.

Washington then followed through on the resolution Congress had passed earlier that week.

"The President, the Vice President, the Senate, and House of Representatives," reports the Journal of the Senate, "then proceeded to St. Paul's Chapel, where divine service was performed by the Chaplain of Congress, after which the President was reconducted to his house by the committee appointed for that purpose."

In 1983, the Supreme Court heard the case of Marsh v. Chambers. The issue then was whether the Nebraska state legislature had violated the First Amendment and established a religion by having a chaplain begin its sessions with a prayer.

The court voted 6-3 that it had not. Chief Justice Warren Burger wrote the opinion for the majority. In this opinion, Burger pointed to the historical fact that the House and Senate first elected their chaplains in April 1789 and voted later that same year to pay them a salary.

"A statute providing for the payment of these chaplains was enacted into law on September 22, 1789," he noted.

"On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights," said Burger. "Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress."

Burger noted that James Madison personally supported the payment of congressional chaplains.

"It bears note," said Burger, "that James Madison, one of the principal advocates of religious freedom in the Colonies and a drafter of the Establishment Clause ... voted for the bill authorizing payment of the chaplains."

The Establishment Clause says: "Congress shall make no law respecting an establishment of religion."

If the men who wrote the Establishment Clause also voted to pay for a chaplain to work for the very Congress in which they served, how can an assistant football coach at a public school violate the Establishment Clause by personally saying a prayer after a game?

He cannot.

The Supreme Court this week decided this question correctly. But three justices Sonia Sotomayor, Elena Kagan and the retiring Stephen Breyer voted the wrong way.

Which side would incoming Justice Ketanji Brown Jackson have taken?

We now live in a nation where fundamental rights remain just two or three votes shy of cancellation.

Terence P. Jeffrey is the editor-in-chief of CNSnews.com. To find out more about him, visit the Creators Syndicate webpage at http://www.creators.com.

Photo credit: MikeGoad at Pixabay

Excerpt from:

Did George Washington Violate the First Amendment?, by Terence P. Jeffrey - Creators Syndicate

from the fix-the-damn-bill dept

Over the last few weeks, weve written quite a bit about the American Innovation and Choice Online Act (AICOA), which has become the central push by a bunch of folks in Congress to create a special antitrust bill for big tech. There are some good ideas in the bill, but, as weve been highlighting, a major problem is that the language in the bill is such that it could be abused by politically motivated politicians and law enforcement to go after perfectly reasonable content moderation decisions.

Indeed, Republicans have made it clear that they very much believe this bill will enable them to go after tech companies over content moderation decisions they dislike. Most recently, theyve said that if the bill is clarified to say that it should not impact content moderation, that they will walk away from supporting the bill. That should, at the very least, give pause to everyone who keeps insisting that the bill cant be abused to go after content moderation decisions.

We recently wrote about four Senators, led by Brian Schatz (with Ron Wyden, Tammy Baldwin, and Ben Ray Lujan), suggesting a very, very slight amendment to the bill, which would just make it explicit that the law shouldnt be read to impact regular content moderation decisions.

In response to that Schatz letter, Rep. David Cicilline (who is spearheading the House version of the bill, while Senator Amy Klobuchar is handling the Senate side), sent back a letter insisting that Section 230 and the 1st Amendment already would prevent AICOA from being abused this way. Heres a snippet of his letter.

Moreover, even if a covered platforms discriminatory application of its terms of servicematerially harmed competition, the Act preserves platforms content-moderation-relateddefenses under current law. Section 5 of S. 2992 states expressly that [n]othing in this Act maybe construed to limit ... the application of any law.

One such law is Section 230(c) of the Communications Decency Act. Under thatprovision, social-media platforms may not be treated as the publisher or speaker of anyinformation provided by another information content provider. They also may not be heldcivilly liable on account of any action voluntarily taken in good faith to restrict access to oravailability 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 isconstitutionally protected. Accordingly, as with other liability statutes enacted since thepassage of Section 230, Section 230 provides an affirmative defense to liability under [the Act]for ... the narrow set of defendants and conduct to which Section 230 applies. Another stillapplicable law is the First Amendment to the U.S. Constitution, which the Act does notandindeed, cannotabrogate.

He then goes on in more detail as to why he believes the bill really cannot be abused. And while he does note that that he remains committed to doing what is necessary to strengthen and improve the bill and that he is happy to keep working with these Senators on it, the very clear message from his letter is that hes pretty sure the bill is just fine as is, and that Section 230 and the 1st Amendment already protect against abuse.

Finally, your proposed language for the Actalthough well intentionedis alreadyreflected in the base text of the bill. As detailed above, among other things, section 5 of S. 2992preserves the continued applicability of current laws, including 47 U.S.C. 230(c), that protectsocial-media platforms from liability for good-faith content moderation. Although I agree thatlegislation is necessary to address concerns with misinformation and content-moderationpractices by dominant social-media platforms, I have consistently said that this legislation is notthe avenue for doing so. As such, this legislation is narrowly tailored to address specificanticompetitive practices by dominant technology firms online. And as the Department of Justicehas noted, it is a complement to and clarification of the antitrust laws as they apply to digitalmarkets. As such, it does not supersede other laws.

Except Cicilline is wrong. Very wrong. We at the Copia Institute this week signed onto a letter from TechFreedom and Free Press (two organizations that rarely agree with each other on policy issues) along with some expert academics explaining why.

The letter explains why Cicillines faith in Section 230 and the 1st Amendment is misplaced. It walks through, step by step, ways in which motivated state AGs (or even the DOJ) might get around those concerns, by claiming that moderation decisions were not actually content-based decisions, but business conduct, focused on anti-competitive behavior.

We dont have to look far to see how that played out: the Malwarebytes case was an example of that in action. That was a case where a company was able to avoid Section 230 by claiming that a moderation decision (calling an app malware), was actually done for anti-competitive reasons. But with AICOA, we could get that on steroids. As the letter notes:

There is a substantial risk that courts will extend the Malwarebytes reasoning to exclude AICOA claims from Section 230 protectionincluding politically motivated claims aimed at content moderation. Specifically, courts may try to harmonize the two statutesi.e., strive to give effect to bothby accepting some showing of anticompetitive results as sufficient to circumvent Section 230(c)(2)(A) in non-discrimination claims.

Anticompetitive animus is not required by the plain text of AICOA 3(a)(3). Allowing only AICOA claims that allege (and, ultimately, prove) anticompetitive motivation to bypass Section 230s protection would infer an intent requirement where Congress chose not to include one. While courts do sometimes infer intent requirements, they may reasonably conclude that doing so here would effectively read Section 3(a)(3) out of the statute. How could a platform with no direct stake in the market where competitive harm is alleged ever have an anticompetitive intent? Thus, how could any plaintiff ever bring a Section 3(a)(3) claim regarding harm to competition between downstream business users that would survive Section 230(c)(2)(A)? For Rep. Cicillines presumptions about Section 230 to be correct, courts would have to effectively render Section 3(a)(3) a nullity by holding that only claims of self-preferencingbut not discrimination between other business usersare actionable. This is an implausible reading that clearly contradicts what the present draft of AICOA says.

The Malwarebytes court relied heavily on Section 230s history and purpose as evincing Congressional intent to protect competition. Here, there is explicit statutory language and legislative history from which a court could conclude that AICOAs purpose is to prohibit anticompetitive results, regardless of motiveand thus to carve those claims out from Section 230. This result would apparently be statutorily required if another bill co-sponsored by Sen. Klobuchar becomes law: The SAFE TECH Act (S. 299) would amend Section 230 to exempt any action brought under Federal or State antitrust law.

Theres a lot more in the letter, but the point is clear. The idea that 230 will magically stop the abuse of this bill seems contradicted by the way the law is currently drafted, and actual cases on the books.

Filed Under: 1st amendment, aicoa, amy klobuchar, ben ray lujan, brian schatz, content moderation, david cicilline, ron wyden, section 230, tammy baldwin

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Do Not Expect Section 230 And The 1st Amendment To Save Antitrust Bills From Abuse - Techdirt

A federal judge ruled today that four people at a George Floyd vigil on the Common on May 31, 2020 can try to convince a jury that Boston Police officers violated their First Amendment rights by attacking them with pepper spray, fists and a bicycle afterwards and that the city created a culture where such a thing could happen.

Among other reasons to seek dismissal, the cops alleged they did not violate the protesters' First Amendment rights because they did not know the four were on Tremont Street because of the Common protest and so did not know they had a First Amendment right to be there.

That assertion "strains credulity," US District Court Judge Alison Burroughs wrote in a decision today that rejected requests by the cops and the city to reject the First Amendment and civil-rights allegations by the four protesters for what happened after police broke up the vigil and ordered nearby T stops shut, on a night that ended with violence and looting across downtown, the Back Bay and the South End.

Here, the chronology of events, the location of each incident, and all other surrounding circumstances, plainly allow for a reasonable inference that each of the Officer Defendants would have known the Plaintiffs were protestors and that they used force against them for that reason. ... Nothing in the record thus far, which includes photos of the Plaintiffs with their arms up and backing away from officers, provides a plausible non-retaliatory motive for the Officer Defendants use of physical force against the Plaintiffs. Further, because the uses of force against Ackers, Hall, and Chambers-Maher occurred while the officers were being openly recorded, it would be reasonable to infer that the civilians filming of the officers formed an unlawful retaliatory motive for the use of force. ... Put simply, the Officer Defendants argument that they could not have known that the Plaintiffs participated in the protest is untenable. Based on the record currently before the Court, it is evident that each one of these incidents occurred while the BPD was seeking to disperse protesters.

Burroughs added, however, that the officers will be able to better rebut the allegation than they have to date during pre-trial discovery and then at trial;

The point of discovery and then trial will be to sort out whether these particular uses of force did or did not implicate the First Amendment.

But, she continued:

Courts around the country, flooded with First Amendments claims pleaded on similar facts following the May 2020 protests, have agreed that the use of force against non-violent protestors can support the inference that officers meant to intimidate protestors and deter antipolice messaging.

Burroughs also allowed the four to continue their lawsuit against the city itself for allegedly creating an atmosphere that allowed and even encouraged misbehavior by police, in large part by ignoring complaints against officers in the past, but also through "a custom of using excessive force." But as she did with the police on the First Amendment issue, she cautioned the four protesters haven't really made a good, detailed case of this to date - something they will have to do at trial to win against the city.

To be sure, Plaintiffs support for this claim is presently thin, particularly since Plaintiffs have done little to link their allegations together to present a systemic pattern of persistent failure to discipline or investigate, but more is not required at the pleading stage. Plaintiffs have specifically articulated that the City knew constitutional violations occurred and either chose not to investigate or otherwise delayed or discouraged investigation. Taking Plaintiffs factual allegations as true and viewing the Amended Complaint in the light most favorable to Plaintiffs, the allegations allow for a reasonable inference that the City has a custom of failing to discipline police misconduct.

Burroughs continued:

The Amended Complaint contains numerous allegations that officers used OC spray, batons, and other physical force against the four Plaintiffs during the May 31 protest. Plaintiffs sufficiently allege, though just barely, that similar constitutional violations occurred on May 29, giving decisionmakers sufficient notice that officers would continue to use unreasonable force against peaceful protestors in the demonstrations to come. The City's argument that the allegations are not enough to support a Monell claim because they rest only on "one night of civil unrest" is unavailing. In addition to the fact that Plaintiffs have suggested that similar conduct occurred during demonstrations on surrounding days, "egregious instances of misconduct" even when "relatively few in number but following a common design, may support an inference that the instances would not occur but for municipal tolerance of the practice in question." Foley v. City of Lowell, 948 F.2d 10, 14 (1st Cir. 1991). ... Here, Plaintiffs describe four similar incidents of excessive force used against peaceful protesters. Further, Plaintiffs may not know, or cannot know, without discovery the full extent of the unreasonable force used by the City against protesters during the May 2020 protests. This Court, in line with several other district courts presented with similar facts, finds that Plaintiffs have sufficiently pleaded that the City had notice of the unlawful use of force against protestors and was deliberately indifferent to those constitutional violations.

She also pointed to a decision by Police Commissioner William Gross to have riot batons distributed to officers beforehand and to have nearby T stations shut as the vigil was dispersed as legitimate acts for a jury to consider whether BPD had a policy that led to the incidents:

Because three of the four Plaintiffs injuries occurred while they were trying to leave the protest area and some of the alleged injuries were caused by blows from riot batons, it can be reasonably inferred that Commissioner Grosss policy decisions led to the constitutional deprivations. ...

Plaintiffs will have to overcome significant issues of proof if they are to prevail at trial. Nonetheless, the Court finds that, at this stage, Plaintiffs have adequately pleaded municipal liability based on the role that City customs and policies allegedly played in the constitutional violations.

Read more:

Judge rejects request by Boston cops to dismiss First Amendment action over the way they pepper sprayed and hit George Floyd protesters in 2020 -...

Younger readers probably wont comprehend how important magazines like Sports Illustrated were in pre-internet culture. Most sports news wasfound in local papers and in short segments at 10 p.m. on the nightly news. Sports Illustrated was oftenthough, periodically, competition would pop upthe sole venue in which a sports fan could find deeply reported, well-crafted features and profiles, not to mention often-remarkable photography (the swimsuit issues, naturally, sold best). The magazines circulation hit around 3.5 million in the mid-1980s, with another million copies being bought on newsstands.

In my late 20s, I brieflyworkedfor the company (well, the website, which was then called CNN/SI.comperhaps a portend of terrible things to come), where I occasionally interacted with one of my writing heroes, Frank Deford. What a dream it was. I would have done it for free. I guess I almost did.

Ive largely ignored the magazine for the past decade or so, not for any philosophical reasons or any animosity, but with all the choices it simply fell off my radar. But after running across an astoundingly nonsensical pieceheadlinedWhen Faith and Football Teamed Up Against American Democracy, Im glad I did.

Ostensibly, the feature is about Kennedy v. Bremerton School District, a SCOTUS case regarding a school district punishing a football coach named Joseph Kennedy for a 30-second silent prayer on the 50-yard line after every game. The pieces subhead describes the case as so:

The U.S. Supreme Court will soon decide the case of a football coach at a public high school who was told he wasnt allowed to pray on the field in front of players. The expected result is a win for the coachand the further erosion of the separation between church and state.

In frontof players? Can you imagine? How will our brittle democracy survive an open display of religiosity? Greg Bishop, who could easily have written this piece for The Nation, offers no explanation of how a prayer is eroding separation of Church and State. Even this atheist, after all, understands that the Establishment Clause doesnt ban praying in public placesnot in schools, and not even in Congress, where prayers are recited before every session.

Bishop anoints Rachel Laser of Americans United for Separation of Church and State his proxy, allowing her to frame the debate over Kennedy in the most preposterously hyperbolic, partisan terms imaginable, even though the only thing her organization excels at is losing cases. The bad-faith retelling of Kennedys story is crammed with partisan platitudes about democracy being under attack on issues like voting rights, LGBTQ rights, and the potential overturning of Roe v. Wade.

Now, its unimaginable that a major publication would allow areporter to throw around phrases like voting integrity, religious freedom, and protecting the life of the unbornwithout quotation marks intimating that the ideas arent realand thats probably always been the case. Though the piece brings upRoethree times, no one explains how a court (concerned solely with the constitutionality of laws) is undermining democratic institutions by giving abortion rights, unmentioned in the Constitution, back to voters. Washington State, home of Bremerton High School, sadly, will not be restricting abortion any time soon.

In any event, Bishop also uses appeals to authority, tapping independent scholars or legal experts who hold no vested interest in the outcomeone of the only names offered isconspiracy theoristLaurence Tribe. He warns readers about the nefarious, big-money forces propping up Kennedy. First Liberty($7,255,961in assets), writes Bishop, is a powerful Christian conservative law firm, part of apowerful right-wing machinepowerfulis the key word herewhile Americans United for Separation of Church and State($11,141,577in assets, not counting in-kind contributions from places like the Meredith Corporation, which has $6.727 billion in assets), are simply terrified and transported to an alternate universe of disinformation and propagandaand, in that world, even democracy is in danger.

Disinformation? Its all just progressive mad libs. Thats what happens when democracy is a euphemism for achieving political ends in whatever fashion happens to be convenient. Sometimes, when the numbers are there, it means crass majoritarianism and centralized federal power; and when the numbers arent there, it can mean compulsion or a court dictating rights by fiat.

In this case, a school district, not the coach, is attempting to limit speech. There is no prohibition on praying in public institutions. Such a prohibition has never existed. Any scholarand Bishop claims to have spoken to many for the piecewho claims that the Constitutions authors would have found the act of kneeling after a competition perilous to foundational American ideals is a complete fraud. Then again, When Faith and Football Teamed Up Against American Democracy is a microcosm of the incurious activism that dominates journalism these days. Its one thing to put up with relentless bias thats infected virtually every area of mainstream culture, but another to see once-respected magazines putting out such banal, predictable propaganda.

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Sports Illustrated Is Now A Bullhorn For Attacks On The First Amendment - The Federalist

Former U.S. President Donald Trump gives the keynote address at the Faith & Freedom Coalition during their annual Road To Majority Policy Conference at the Gaylord Opryland Resort & Convention Center June 17, 2022 in Nashville, Tennessee.

Former PresidentDonald Trump has filed a notice that he will appealthe dismissal of his First Amendment lawsuit against Twitter, documents filed in appellate court reveal.

The 45th president and several additional plaintiffs including anti-vaccine advocates, COVID-19 misinformation spreaders, and conservative activists signaled their intent to appeal by filing a notice of appeal as well as a series of procedural exhibits in a Monday filing with the U.S. Court of Appeals for the Ninth Circuit.

In May of this year, the lawsuit was dismissed by U.S. District Judge James Donato, who found that the content moderation decisions made by Twitter in no way impacted the First Amendment because Twitter is not the government.

Plaintiffs main claim is that defendants have censor[ed] plaintiffs Twitter accounts in violation of their right to free speech under the First Amendment to the United States Constitution, the judge noted in an 18-page order. Plaintiffs are not starting from a position of strength. Twitter is a private company, and the First Amendment applies only to governmental abridgements of speech, and not to alleged abridgements by private companies.'

In an inline citation to case law, the opinion offers a basic distillation of First Amendment doctrine [emphasis in original]:

[T]he Free Speech Clause prohibits only governmental abridgement of speech. The Free Speech Clause does not prohibit private abridgment of speech.

The only possible way for Trump and the other plaintiffs to make a First Amendment claim against Twitter, Donato noted, was the narrowly-applied state action doctrine, which holds that government activity can be viewed as dominating a private activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints. But that doctrine, the judge went on, is not an easy claim to make.

In response to Twitters eventually-granted motion to dismiss, Trump and the others plaintiffs were found not to have strongly argued that the state action doctrine actually applied to their case on the merits. Rather, the thrust of their argument, Donato noted, was a procedural pleading that the inquiry was too fact-intensive to be dealt with on a motion for summary judgment. The judge rejected that out of hand and then described Trumps pleaded facts.

From the May dismissal:

Twitter is said to have closed Mr. Trumps account because of the risk of further incitement of violence and threats to physical safety. Twitter closed plaintiff [Linda] Cuadross account due to a post about vaccines, and Dr. [Naomi] Wolfs account for vaccine misinformation; Plaintiff [Rafael] Barbozas account was closed after retweeting President Trump and other conservatives on January 6, 2021,; plaintiff [Dominick] Latella after he post[ed] positive messages about Republican candidates and President Trump, and plaintiff [Wayne Allen] Root for messages he posted related to COVID-19 and the 2020 election results.

If anything, these explanations indicate that Twitter acted in response to factors specific to each account, and not pursuant to a state rule of decision, the order granting Twitter motion to dismiss explained.

Trump and the others cited a handful of comments made by Democratic Party politicians to argue that the state was directing Twitters censorial moves, however, the judge noted, the comments of a handful of elected officials are a far cry from a rule that is actually being enforced by the state.

There is no way to allege with any degree of plausibility when, if ever, the comments voiced by a handful of members of Congress might become a law, or what changes such a law might impose on social media companies like Twitter, Donato went on.

The plaintiffs will soon have to re-litigate their theories of alleged state action in one of the nations traditionally most left-leaning and Free Speech-favoring appellate courts.

Substantive pleadings in the case stylized as Trump v. Twitter have yet to be filed.

The notice of appeal is available below:

[image via Seth Herald/Getty Images]

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Trump Plans to Appeal Dismissal of Twitter First Amendment Lawsuit in Ninth Circuit - Law & Crime

As Ive explained previously, it could be difficult to prove beyond a reasonable doubt that Trump had the corrupt state of mind needed to convict him, for example, of obstructing an official proceeding.

In addition, a prosecution of Trump for inciting violence would face a serious First Amendment hurdle. The Supreme Court has long held that only incitement to imminent unlawful action is sufficient. The speaker had to know that the crowd would immediately break the law.

Courts have routinely set this bar very high in the context of political speech because the First Amendment broadly protects speech of that type. A political statement by the president of the United States would be presumptively protected by the First Amendment.

But now we have Hutchinsons testimony that Trump said he didnt f---ing care that they have weapons. Theyre not here to hurt me and that they would be going to the Capitol later. This is precisely the sort of smoking gun evidence needed to prove that the person speaking meant to incite imminent violence.

The DOJ will understandably be concerned that the Supreme Court particularly the current court would find that Trumps speech was constitutionally protected by the First Amendment. But this evidence should be enough to make them at least consider an incitement prosecution. Before Hutchinsons testimony, an incitement prosecution would likely fail to clear the high First Amendment hurdle. Now, it is at least a close call and something DOJ should seriously consider.

And to be clear, Hutchinsons testimony would not be hearsay if offered by the DOJ at court against Trump. Statements by a party opponent are not considered hearsay, according to Federal Rule of Evidence 801(d)(2). In this case, Trump would be the DOJs party opponent in a criminal prosecution of Trump, and her testimony regarding Trumps statements could be used against him in court.

Hutchinson also provided testimony that gets DOJ closer to what they would need to prosecute Trump for obstructing an official proceeding. That charge requires corrupt intent. She testified that Trump tried to grab the steering wheel of his official vehicle (The Beast) when Secret Service agents refused to take him to the Capitol. She also testified that when an agent physically blocked Trump from seizing the wheel, Trump himself placed his hand on the agents clavicles, just under his neck.

Trumps failed attempt to go to the Capitol, in itself, would not be a criminal offense. But the episode inside The Beast would be powerful evidence of Trumps intent. Up until now, the picture that emerged of Trump was of someone who engaged in inaction while the Capitol was under attack, declining to call off his supporters or to call in police or troops. In itself, that is dereliction of duty, not a crime.

But episodes like trying to wrest the steering wheel show that Trump wanted to be at the Capitol and would have been there if he hadnt been kept from doing so. He wanted to be there, hands on, for the attack itself. That sheds a powerful light on his state of mind.

Juries are typically instructed to infer a defendants state of mind from his words and actions. In this situation, Trumps actions speak loudly, and they can be used as evidence of Trumps state of mind when he engaged in earlier actions.

Prosecutors will still need to put together a case that shows that Trump was involved in a conspiracy or scheme that obstructed the Jan. 6 certification proceeding. Thats not the simple task that many would have you believe. But its easier than establishing intent.

Hutchisons testimony is a game changer. Until now, the only readily provable crimes based on what is known publicly were potentially narrow criminal charges against crooked lawyers. Now it looks like an (otherwise unlikely) incitement prosecution is possible, and there may be the smoking gun needed for an obstruction charge.

The committee was smart to lock in public testimony from Hutchinson when it had the chance, given the potentially unlawful pressure against her to change her tune. Committee members have to hope that others follow in her footsteps. But they already have much of what they need.

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Opinion | What Cassidy Hutchinson Said that Could Prove Trump's Criminal Undoing - POLITICO