Kentucky state Sen. Danny Carroll is back this year with another controversial proposal that would shield personal information about a wide range of "public officers" and their families from public view and would let them sue journalists and otherswho spreadsuch details.

The Kentucky Press Association sharply criticized the legislation this week, saying it's unconstitutional and "a broadside attack on the First Amendment" that violates Kentuckians' due process rights and "will chillthe ability of citizens and journalists alike to speak and write about" public servants.

"It will conceal from the public basic information that has long been available without incident and is essential for citizens to oversee elected and appointed public officials paid with their tax dollars," the KPA's general counsel, Jon Fleischaker and Michael Abate, said in a statement.

"It also will jeopardize the ability of businesses, agenciesand courts to perform routine public functions that depend on the free flow of information regarding public records concerning birth, death, marriage, insurance, property ownership, taxesand political contributions."

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Carroll's new legislationresembles a hotly debatedbill he filed last year.The legislature approveda modified version ofthat proposal, but Gov. Andy Beshear was able to veto it.

Carroll, R-Benton,was unavailable for comment Wednesday, but an assistant said hehas been working on this legislation with Rep. John Blanton, R-Salyersville. Blanton was involved in modifying Carrolls public records bill last year. He could not immediately be reached for comment.

He also sponsored a highly criticized proposal in 2021that would have made it a crime to insult a law enforcementofficerto the point it could provoke a violent response from them. That bill passed only the Senate, and he recently filed a largely similarbillfor this session.

Carroll's newpublic records legislation, Senate Bill 63, would:

SB 63 also would prohibit public agencies from disclosing "personally identifiable information in records that would reveal the address or location of a public officer" if that person says they don't want that information released.

Amye Bensenhaver, co-director of the Kentucky Open Government Coalition, told The Courier JournalCarroll's latest bill would upend Kentucky's open records law and morph it into a non-disclosure law.

Personal information already is well-shielded by the current law, said Bensenhaver, a former assistant attorney general, adding:"The truth is the privacy exception to theopen records law is so well-developed, and so well-interpreted and understood, that it will in most instances protect this type of information."

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She also predicted Carroll's bill would be struck down in court if it becomes law,with taxpayers footing the bill for the legal proceedings."This bill cannot survive any kind of challenge," she said.

Fleischaker and Abate, of the Kentucky Press Association, said the way thisbill is writtencould leadpublic officers to claim basic details, such as their name or employer,must be withheld.

Among other consequences,they said: "This could result inagencies repeatedly withholding public records that have been critically important to exposing egregious abuses by law enforcement officers..."

They also criticized the bill's incredibly broad definition of "immediate family member" as well as the wide array of data the bill classifies as "personally identifiable information."

Fleischaker and Abate raised major concerns as well about how the bill would let public officers and theirso-called immediate family membersfile civil lawsuits against peoplefor posting "personally identifiable information" about them.

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Carroll's bill says someone can be sued for thatif:

"This significant financial liability may be imposed with merely a subjective assertion that the sharing of the information placed the public officer in reasonable fear of physical injury or harm to their property," Fleischaker and Abate said. "Citizens and journalists simply will not know whether they can talk about, or report on, public officials, employees, or controversies that happen to turn on the myriad categories of information protected by the law."

Morgan Watkins is The Courier Journal'schief political reporter. Contact her atmwatkins@courierjournal.com. Follow her on Twitter: @morganwatkins26.

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Lawmaker is back again with plan to shield records on Kentucky public officers - Courier Journal

A New Hanover County Board of Education member said a resolution to censure her wont deter her from her mission to hold those on the board, and in the school district, accountable.

The board passed a resolution to censure member Judy Justice in a 5-2 vote Friday afternoonafter Justice was accused of revealing confidential personnel information to someone who was not permitted to have it. Justice said after the meeting she felt the move was personal, and she plans to continue pushing for more transparency from the district going forward.

Im fighting the battles trying to help the district, and when they fight me, theyre in essence fighting against doing good things for the district, Justice said.

Justice and board Vice Chairwoman Stephanie Walker were the only two members to vote against the censure. A censure does not result in any action it's simply a tool to let Justice know the board does not support or agree with her actions.

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Kraybill said after the meeting she was made aware of allegations Justice had violated the code of ethics by disclosing personnel information in the fall. The board previously passed a vote of no confidencein June after then-Chairwoman Stefanie Adams accused Justice of lying during a board meeting.

DuringFriday'smeeting, the board went into a closed session to discuss personnel matters that could not be disclosed to the public. After, Justice was given a chance to address the board and thepublic andbrought forth a list of 10 ways other board members had violated the boards code of ethics that had gone unaddressed.

This witch hunt is personal and everyone on this(board)knows it, Justice said during her statement. It is time we did our job for the people and serve the people, not some peoples individual agendas.

Justice also alleged Superintendent Charles Foust had accused her of harassing him. Attorney Colin Shive interrupted Justice, saying he would advise her to move on from that subject to avoid revealing further personnel information. Kraybillsaid the subject was not germane to the topic at hand.

Justice went on to say it was her first amendment right to bring up the accusation and said she had no intention of bringing up confidential personnel information.

As Justice continued her statement about the alleged harassment, Foust interrupted her, saying he had 275 emails to prove she had harassed him.

I will provide emails if thats what you want, Foust said. You cannot and you will not do that.

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Justice said the emails she sent him had to do with her asking him to do his job. She said after the meetingFoust has not communicated with her in months, though its district policy that the superintendent communicates regularly with members of the board. She alleged he does not respond to her emails or phonecalls, andsaid thats concerning as shewas elected to represent the public before the school district.

Kraybill quickly called the meeting to recess, and she and Foust went to a separate room to speak with Shive. When they returned, Shive called Justice back and spoke with her for several minutes behind closed doors. Walker also went with Justice to speak with Shive.

When Justice returned, she said she felt the censure vote was taking away from important issues going on in the district, like the continued strain on staff and students from the COVID-19 pandemic and decades of sexual abuse allegations against former teachers and administrators.

Several community members attended the meeting as well, holding signs reading I support Judy and attempting to speak with board members while they recessed.

How is this whats best for the kids? one audience member asked theboard, butdid not receive a response.

Kraybill said after the meeting the vote was not personal, and she hopes the board can be unified moving forward to get to those important topics impacting the district.

The community has been very critical of this board, and boards before us about not being transparent, not handling issues in a timely manner," Kraybill said. When I found out that this had occurred, I just said we need to jump on it and get it resolved.

We've got that behind us, and we should be ready to go,shesaid.

Reporter Sydney Hoover can be reached at 910-343-2339 or shoover@gannett.com.

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'This witch hunt is personal': School board votes to censure member in tense New Hanover meeting - StarNewsOnline.com

The Supreme Court has blocked the Biden administration from enforcing a vaccine and testing mandate for large employers, reports the New York Times. The mandate would have required employees either to be vaccinated against the coronavirus or participate in routine testing. The vote on the case was 6 to 3, with Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor in dissent.

The founder and leader of the far-right group known as the Oath Keepers was charged with seditious conspiracy in an investigation into the Jan. 6, 2021 attack on the Capitol, writes the Washington Post. Stewart Rhodes was indicted and arrested after a federal grand jury introduced a new set of charges against a small group of Oath Keepers. According to the indictment, Rhodes and 10 other Oath Keepers are allegedly responsible for organizing a wide-ranging plan to storm the Capitol and disrupt the certification of President Bidens 2020 election victory. Rhodes is the most high-profile person charged in the investigation thus far.

Rep. Kevin McCarthy refused an interview request from the House select committee on Jan. 6, reports the New York Times. On Wednesday, the committee sent McCarthy a formal request to be questioned about his knowledge of former President Trumps state of mind and ongoing conduct in the days following the attack on the Capitol. In a letter to McCarthy, the committee wrote that they are particularly interested in discussions he may have had with Trump about the presidents potential removal or resignation from office. In a statement refusing the interview request, McCarthy wrote that the investigation into Jan. 6 is illegitimate and that the committees only objective is to damage its political opponents.

Democrats in the House passed voting rights legislation that combines the Freedom to Vote Act and the John Lewis Voting Rights Amendment Act, according to the New York Times. Both the Freedom to Vote Act and the John Lewis Rights Amendment Act have previously passed in the House and were denied a vote on the Senate floor. The passing of this repackaged legislation comes the day after President Biden delivered a speech encouraging Democrats to eliminate the 60-vote threshold required to end a filibuster, specifically on voting rights legislation. This will be the Senates fifth time voting on such legislation. The previous four attempts to debate the bills have failed due to Republican filibusters.

The Republican National Committee (RNC) stated that it will require Republican presidential candidates to boycott debates conducted by the Commission on Presidential Debates, reports Politico. The threat of boycotting future presidential debates comes after complaints from Republicans in recent years that the commission is biased against GOP candidates. In a letter to the commission, RNC officials wrote that, the RNC has a duty to ensure that its future presidential nominees have the opportunity to debate their opponents on a level playing field, and that, the RNC will take every step to ensure that future Republican presidential nominees are given that opportunity elsewhere.

On Tuesday, the Cybersecurity and Infrastructure Security Agency, FBI and National Security Agency released a jointcybersecurity advisory, reports The Hill. The advisory outlines tactics, techniques and procedures commonly used by the Russian state, in addition to threat detection actions, guidance on incident response and measures to mitigate cyberthreats. The agencies released the advisory to warn organizations of cyber threats and help the cybersecurity community reduce the risk presented by these threats.

Negotiations with Russia on tensions surrounding Ukraine continue in Vienna at the Organization for Security and Cooperation in Europe (OSCE), writes the Wall Street Journal. Delegations from Ukraine were present at the meeting, marking the first time this week that Kyiv has had a seat at the negotiating table. Russias deputy foreign minister reported that if the U.S. military activity continues to provoke and pressure Russia, Moscow may potentially deploy its troops to Venezuela and Cuba in retaliation.

Russian-led troops have begun to withdraw from Kazakhstan following violent protests and political unrest in the nations capital, writes Reuters. Upon their departure, Kazak President Kassym-Jomart Tokayev thanked the Russian-led troops for their assistance with stabilizing the country. Vladimir Putin declared Russias mission in Kazakhstan to be a success and expressed hope that this practice of using our armed forces will be studied further. The Russian defense minister reported that the withdrawal of Russian-led troops will be completed by Jan. 19.

In the first criminal trial concerning state-led torture in Syria, a German court has convicted a Syrian colonel for crimes against humanity, according to BBC News. Anwar Raslan was sentenced to life in prison for his involvement in the torture of more than 4,000 incarcerated people at a Syrian prison. UN rights chief Michelle Bachelet said that Raslans conviction was a landmark leap forward in the pursuit of truth and justice. This ruling marks the first time a criminal court has recognized that the Assad regime has committed crimes against humanity against Syrian citizens.

ICYMI: Yesterday on Lawfare

Jen Patja Howell shared an episode of the Lawfare Podcast in which Natalie Orpett, Benjamin Wittes and Alan Rozenshtein discuss Trump v. Thompson, presidential immunity and the First Amendment.

Paul Rosenzweig analyzed the problems with the U.S. approach to homeland security.

Hadley Baker shared an episode of Lawfare No Bull that provides a straightforward account of Tuesdays Senate Judiciary Committee hearing on the threat of domestic terrorism

Howell also shared an episode of Rational Security in which Alan Rozenshtein, Quinta Jurecic and Scott R. Anderson sat down with Natalie Orpett to discuss the weeks biggest national security news stories.

Jordan Schneider shared an episode of ChinaTalk that features a discussion with Stony Brook Universitys Michael Barnhart about what U.S.-China relations can learn from U.S.-Japan relations in the leadup to WWII.

Elena Kagan and Alan Rozenshtein analyzed the five-hour Thompson v. Trump oral argument that took place on Jan. 10.

Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Check out relevant job openings on our Job Board.

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Today's Headlines and Commentary - Lawfare - Lawfare

Hours into a marathon oral argument on Jan. 10, Judge Amit Mehta of the U.S. District Court for the District of Columbia observed that if there is one thing this hearing has shown it's that this is not an easy case. For nearly five hours Judge Mehta heard arguments about whether former President Donald Trump, Rep. Mo Brooks, Rudy Giuliani and others could be held civilly liable for their role in the Jan. 6 Capitol insurrection. The main lawsuits, brought by Reps. Bennie Thompson and Eric Swalwell, allege violations of 42 U.S.C. 1985(1), a Reconstruction-era statute that created civil liability for conspiracies to prevent public officials from holding any office or discharging any duties.

Addressing issues common to the three lawsuits, Judge Mehta wrestled with formidable defenses raised by Trump and his co-defendants: chiefly that Trump and Books are immune from civil liability for actions taken as part of their official duties, and that the defendants statements leading up to the siege of the Capitol could not satisfy the elements of conspiracy, especially to the extent that the statements were protected speech under the First Amendment.

Immunity

Trump lawyer Jesse Binnall argued for an expansive, highly formalistic vision of presidential immunity, relying on the Supreme Courts ruling in Nixon v. Fitzgerald that presidents are entitled to absolute immunity from civil liability for actions while in office that fall within the outer perimeter of their official responsibility. The crux of Binnalls argument was that the court must entirely ignore the content of Trumps speech on Jan. 6his remarks at the Ellipse and on Twitter over the course of the dayand look only at the presidents conduct to analyze whether he was acting in his official capacity. Because Trump was addressing the American people, Binnall argued, he was acting within his official duties as president and must enjoy immunity, especially since the subject of his speech, electoral integrity, is a matter of immense public concern.

Judge Mehta was skeptical of this all-encompassing vision of the presidents official duties, which potentially would make the president immune from civil liability anytime he opens his mouth. Judge Mehta pushed Binnall on whether there is anything that a president could do or say while in officefor example, as part of a campaignthat would not be immune from liability under his expansive theory of presidential immunity. Binnall said that he could not name an example of anything the president could say that would not fall within his official duties under this theory, but that perhaps signing a lease on a campaign office would not fall within his responsibilities as president.

But if Binnall failed to give Judge Mehta a reasonable standard for the scope of presidential immunity, the plaintiffs struggled to offer one that would withhold immunity in this case while nevertheless being consistent with precedent. The plaintiffs argued that Trump should not enjoy immunity because fomenting an insurrection against Congress was clearly unconstitutional and thus outside his official duties. But as Judge Mehta noted, Fitzgerald held that presidential immunity did not depend on the legality of the presidents action. The plaintiffs were left to argue that Trumps conduct surrounding Jan. 6 was so outrageous that it was clearly beyond the scope of his presidential responsibilities. But where exactly to draw that line remained unclear.

The question of the scope of official duties was also at the center of Brooks claim that he should be immune from liability under the Westfall Act, which requires the government to act as the defendant when federal employees are sued for tort liability for official actions. The Department of Justice joined the plaintiffs in arguing that Brookswho spoke before Trump on Jan. 6 and declared that Todays the day American patriots start taking down names and kicking asswas campaigning and therefore acting outside the scope of his official duties; as a result, Brooks should not be immune from civil liability. But Brooks, who argued on his own behalf, emphasized that his motivation in speaking at the Jan. 6 rally was not simply to support Republican candidates in future elections, but also to convince his fellow congresspeople to vote against the certification of the electoral college votes.

First Amendment

The other major hurdle for the plaintiffs is the First Amendment, which generally protects the sort of political speech that Trump, Brooks and the other rally speakers engaged in (and to that extent cannot serve as the predicate for the plaintiffs conspiracy charges). The plaintiffs emphasized that the defendants could be held liable under even the highly speech-protective standard of Brandenburg v. Ohio, which permits liability for advocacy of the use of force or of law except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

In a heated exchange, Binnall, Trumps lawyer, repeatedly pointed to several inflammatory statements that the Democratic plaintiffs had themselves previously made, arguing that if Trumps language was found to be incitement to violence here, but similar language used by others elsewhere was not, the court would be failing to apply the First Amendment equally to Democrats and Republicans. Judge Mehta sharply rebuked Binnall for engaging in whataboutism and for suggesting that he was judging Trump and his co-defendants speech more harshly because of their party.

Like the discussion of presidential immunity, the First Amendment portion of the argument was inconclusive. On the one hand, Trumps words did not explicitly call for violence and were on their face far less inflammatory than what the Supreme Court upheld in Brandenburg and in many cases since. On the other hand, the broader context of Trumps speech, from his months-long campaign to discredit the election to his failure to act after the attack on the Capitol began, suggests, as Mehta noted, that Trumps speech went beyond ordinary political rhetoric, even if it was not the sort of speech that typically qualifies as conspiracy to commit violence.

Ultimately, and despite hours of questioning, Judge Mehta did not tip his hand as to how he will rule on the many complex legal issues that the lawsuits raise. But given the high political and legal stakes, its unlikely that Judge Mehtas decision will be the last word. The parties will almost certainly appeal any outcome to the U.S. Court of Appeals for the D.C. Circuit, and this case may well end up before the Supreme Court, especially on the central issue of presidential immunity.

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After Oral Argument, the Future of Thompson v. Trump Remains Unclear - Lawfare

After Donald Trumps second impeachment trial ended in acquittal, Senate Minority Leader Mitch McConnell (R-Kentucky) suggested that the former president could still be held civilly or criminally liable for his role in the Capitol riot that happened a year ago last Thursday. But as three lawsuits that a federal judge considered this week show, those options require proving that Trump deliberately provoked the violence that day, which is a tall order.

The Trump supporters who broke into the Capitol, interrupting the congressional tally of the presidential election results, came to Washington, D.C., at his behest. They were motivated by Trumps fantasy of a stolen election, which he had been promoting for months and reiterated in a fiery pre-riot speech at a rally a mile and a half from the Capitol.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard today, Trump said. While he did not advocate violence, it was foreseeable that at least some of his supporters would interpret his exhortation to fight like hell in defense of a supposedly imperiled democracy as a justification for the use of force.

Still, there is a big difference between reckless rhetoric, which is protected by the First Amendment, and the criminal conspiracy described in lawsuits filed by Rep. Eric Swalwell (D-California), other House Democrats and two Capitol Police officers. All three complaints allege that Trump violated the Ku Klux Klan Act of 1871 by conspiring to use threats, force and intimidation to stop government officials from carrying out their duties.

To prove that claim, the plaintiffs must do more than show that Trump ginned up his supporters outrage with false election fraud claims, or even that he did so in circumstances where he should have known violence was likely. They have to show that the Capitol riot was the culmination of a plan to violently disrupt the ratification of Joe Bidens victory, a scheme in which Trump himself intentionally participated.

Capitol Police officers James Blassingame and Sidney Hemby also claim that Trump violated a provision of the D.C. Code that makes it a criminal offense to willfully incite or urge other persons to engage in a riot. In addition to the requirement that the offense be committed willfully, prosecution for incitement is constrained by the First Amendment.

Even advocacy of illegal behavior, the Supreme Court ruled in the 1969 case Brandenburg v. Ohio, is constitutionally protected unless it is not only likely to incite imminent lawless action but also directed at doing so. Another exception to the First Amendment, for true threats, involves statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.

In a brief supporting Swalwells lawsuit, three law professors, joined by legendary First Amendment attorney Floyd Abrams, say these exceptions likely apply here. But whether that is so hinges on what we surmise Trump was thinking when he gave his speech.

Trump explicitly urged Mike Pence, for instance, to reject electoral votes for Biden, a power the vice president did not actually have. But Trump did not threaten Pence with an act of unlawful violence, and inferring such a threat requires speculation about what Trump meant to communicate in light of what his supporters did afterward.

It is likewise not at all obvious that Trump wanted to cause a riot, an outcome that failed to accomplish his ostensible goal, led to his second impeachment and provoked harsh criticism from Republican legislators such as McConnell. If this was all part of a plan, it was a pretty stupid plan.

The urge to punish Trump for his reckless rhetoric is understandable but dangerous. If his opponents succeed, they may regret establishing a precedent that speakers who neither practice nor preach violence can be held legally liable for the conduct of listeners inspired by their words.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum.

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Proving Trump conspired to incite the Jan. 6 insurrection is a tall order - Chicago Sun-Times