Perry White was one of my favorite newspaper editors. No, not Clark Kents boss at the Daily Planet.

This Perry White edited the Watertown Daily Times. In New York. The state, not the city. Its a great family-owned newspaper that was once the smallest in the nation to have a D.C. bureau, a distinction now held by this very newspaper.

Perry flew to Spokane to visit us and check out the paper a couple of years ago, and we were friends ever since. He died this summer and it hit me way harder than I thought it might. Moments like that make you remember things you didnt understand meant so much to you, some of them so simple.

Like the time I posted a photo of my undershirt on Facebook which I do more than you probably want to know, but its also not what it might seem and Perry immediately commented on it. These T-shirts have messages on them. Sometimes slogans. Sometimes team mascots. Sometimes how I feel that day. And sometimes things that show what I stand for.

Best shirt you own. It was all he said. He was right.

Its a comfy red shirt with the First Amendment on the front in that old handwriting that so many of us equate with the pictures weve seen of the original Bill of Rights. It matters for obvious reasons, so much so that a copy of that same text hangs in my office and theres even a steel version of it thats often tucked in my wallet.

This metal-detector loving version lets me discuss the Fourth Amendment with anyone else in the security line at the Spokane International Airport who might feel like talking about constitutional law.

What can I say? I love and respect all of the amendments, not just one. Or two. Even when Im standing shoeless in front of a TSA agent who clearly doesnt have a sense of humor.

Theres a reason why our nations founders made this particular one the first of our Constitutions amendments. Its because it would lay down what they felt were the five essential freedoms that would make the United States of America the freest country in the world. The rights they deemed so important to protect for its new citizens were religion, speech, press, assembly and petition.

We all know that. But its also clear that many of us dont exactly understand it.

With all of the events of, lets say, the last three or four days or so, maybe its time for a quick civics lesson especially since so many people have been talking about censorship and saying the First Amendment had been violated when certain social media accounts began to disappear Friday.

It will be like a refresher course, only we can use real-world examples. And well do it without putting on any pants as we read the morning newspaper.

To quote Inigo Montoya, the most passionate character from one of my favorite movies of all time: You keep using that word. I do not think it means what you think it means.

Well, this isnt really one word. Its 45 words strung together as a single sentence with enough punctuation and random capitalization to drive a newspapers copydesk to the brink.

Pay close attention to the first five words of the First Amendment. Thats where a very important point is going to be made early in this granddaddy of run-on sentences:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Did you catch how it all began?

Those opening words are very specific that government cannot violate any of those rights, including personal censorship, but they also dont apply to businesses or life, in general. They apply to the laws that can and cannot be written.

In case youre wondering, this is exactly why a newspaper not running your letter does not violate your First Amendment rights. Newspapers in the United States are not controlled by the government in any way for the same reason.

However, we arent really looking for reasons not to run your letter. Do you have any idea how hard it is to fill this many pages every day? Just keep it relatively civil, stick to the word count and follow the timeline guidelines, and were almost certainly running it.

In regards to Freedom of Speech, you absolutely have the right to say what you want. Its protected by the law of the land.

But the First Amendment does not shield people from the consequences of those words.

And we all know that.

That consequences part is a lesson most of us learned back in the second grade when we stood up in class and loudly said the principal is a big weenie who dresses funny. That speech was totally protected by the Bill of Rights. But the loss of recess for a week wasnt because the government was punishing us. It was because Mrs. Voldemort cant take a joke.

We all know that if we run through the aisles of our favorite grocery stores behaving in a way that violates that stores policies and weve been asked to stop, we can be asked to leave. Because its private property, that is completely within that stores rights.

Unless you didnt know they could bar you from ever shopping there again for doing something they told you not to do and Im not saying some of you might have done this, because we all know you forgot your mask in the car Im just saying, why even jeopardize not being able to go to their bakery again? Delicious.

Well, if you didnt know that, now you do.

This brings us to all of the things that have happened since the last time you read the Sunday newspaper.

Not that Im getting too specific here, but all of this means when someones social media accounts are disabled or their lucrative book contract is canceled, no constitutionally ensured rights have been impeded on. Thats a relief, right?

Still, theres something else thats been bugging me related to the First Amendment that clearly we should clarify. Please notice the word peaceably in front of the part that references protests. (Of course, our nations founders referred to this as assemble because they talked kinda weird back in 1789. Amirite?)

When youre laying out how you think an entire country oughta run, and youre only using 45 words, every word counts. And peaceably is a biggie in this one.

We should go into that in more detail later, but being completely honest, the courts are going to deal with that and they all look much better in a robe than I do, so maybe we let them explain it. Plus, we all know what the word peaceably means, right?

You know, this little civics review just gave me another goofy idea. Maybe next week, we all can take the new test that must be passed to become a U.S. citizen!

Though Ive looked at it, and spoiler alert we arent even coming close to passing this thing. Its nuts. Seriously, we dont have a prayer of a chance. Not in a month of Sundays.

So maybe thats a terrible idea. I apologize.

Seems like most of us probably should have paid more attention in our high school government/civics classes. Though Im not really that sure it would have mattered. This test is impossible like trying to properly pronounce Gonzaga if youre a television broadcaster. The questions on this new U.S. citizenship test are incredibly obscure.

Only a few people might know such trivial detail.

Like Ken Jennings. He could pass it. Possibly, a newspaper editor. Ill call one on Monday and ask.

Heres another idea: Maybe we all could study together for this test! Well, not actually together, because of all of this COVID stuff, but we could study at the same time! Study buddies!

My guess is there will be lots of little things just like all of this First Amendment stuff we just talked about that dont match up with what others have told you to be true. Interestingly enough, the government has chosen for this citizenship test to be based upon real facts, not alternative facts.

What if starting next week, we began to go through the questions on that test? Maybe we can even talk more about the Bill of Rights. It could be like the civics class we didnt pay attention to when we were younger, only now, were all adults, so we know how important it is to understand things that have a huge bearing on our lives.

Like how our democracy works. Or how to run that damn new air fryer we got for Christmas.

We should come up with a cool name for this new weekly study group that will run in our Sunday newspaper until we all feel like we understand what being a responsible citizen is. It should have the kind of name that would look good on a shirt.

You know, like something my friend Perry would have said something to me about on Facebook. Miss you, buddy.

Here is the original post:

Rob Curley: The First Amendment doesn't necessarily mean what you think, so here's how it really works - The Spokesman-Review

But could this cancellation violate Hawleys contract? Well, the contract hasnt been made public, but as Irecently experienced withmy own book deal, book contracts generally give the publisher great leeway. It could be that Simon &Schuster gets to walk away but Hawley gets to keep his advance, or there could be some other previously agreedupon arrangement. Theres certainly achance that the publisher is breaching the contractit may have determined that it would lose money if it published the book, meaning that this is what lawandeconomics scholars call an efficient breachin which case it owes Hawley liquidated damages as set out in the contract or under generally accepted principles of contract law. Either way, the First Amendment isnt at issue.

Finally, though, theres anonlegal issue at play: the idea that large corporations, cultural and otherwise, are canceling conservatives (and libertarians) in various ways. Indeed, such censorship byFacebook,GoogleandTwitteris the very subject of Hawleys book. The extent to which this phenomenon is real or concerning depends alot on specific facts. Surely, if it had turned out that an author was aneoNazi Holocaust denieror aKlan member, or aStalinistfew would object to deplatforming him. So this is largely adebate about the Overton window of appropriate public discourse and policing what Ive previously calledthe SatanScherbatsky line.

Its certainly troubling that, for example,The New York Times publication of anopedby Senator Tom Cotton (R-AR) on how best to quell last summers rioting caused the opinion editor to lose his job, while the Gray Lady publishes regular apologies for Communist regimes (as recently aslast Monday). And there are indeed woke mobs out there, most notably on social media, even if that choice of words was unfortunate in light of the actual mob that Hawley fistpumped last Wednesday.

These are real cultural pathologies that our society must grapple with. But that doesnt mean theres arole for government to fix these issuesand theyre certainly not First Amendment violations.

Read more:

The Cancellation of Josh Hawley's Book Deal Isn't a First Amendment Issue - Cato Institute

In an interesting recent post, co-blogger Josh Blackman and Seth Barrett Tillman argue that President Trump cannot be impeached and convicted for his role in inciting the riot at the Capitol because he was engaging in First Amendment-protected speech. Their argument is clever, but fundamentally wrong. And for a very simple reason: the First Amendment doesn't protect high-ranking government officials from being removed from office because of their speech.

For present purposes, I assume Blackman and Tillman are right to conclude that Trump's speech is the sort protected under the current First Amendment doctrine, and that it would be unconstitutional to impose criminal or civil penalties on him for it. I actually think they may well be right on that point. But it is irrelevant in a context where the relevant penalty is removal from a high position of government powerand possible exclusion from future office-holding.

Under current Supreme Court precedent, lower-level non-policymaking government employees have at least some significant protection against being being fired because of their views or their political speech. But the Court has also made clear, in various rulings, that higher-level policymaking employees whose political views are relevant to the performance of their duties enjoy no such protection. Indeed, high-ranking government officials get fired because of their political speech all the time. Donald Trump himself has fired numerous cabinet officials and other subordinates because they expressed views he didn't like (Secretary of Defense Mark Esper was a notable recent example).

The exact dividing line between a policymaking employee whose views are relevant to his or her job and a lower-level official who enjoys First Amendment protection against firing is hard to specify. But it's pretty obvious that the president falls on the former side of the divide. If anyone is a high-level government with enormous policymaking discretion whose views are relevant to job performance, it is the president of the United States!

If First Amendment-protected speech could never be grounds for impeachment and removal of the president, it would lead to absurd and dangerous results. Consider a scenario like the following:

The President of the United States makes a speech in which he he avows his desire to "do everything I legally can to promote fascism." He then exhorts his supporters (who are known to include violent elements) to "fight like Hell to establish Fascism, and if you don't fight like Hell, you're not going to have a country anymore." In the aftermath of that speech, neo-Nazi and white supremacist supporters of the president attack a government building, with numerous resulting injuries and loss of life.

Everything in the above hypothetical speech is protected by the First Amendment. It is actually very similar to Trump's speech just before the recent riot, quoted by Blackman and Tillman (I have deliberately adapted some of Trump's language). The only significant difference is the addition of the references to fascism. And that difference doesn't matter for First Amendment purposes. Indeed, Brandenburg v. Ohio, the classic 1969 case cited by Blackman and Tillman, involved inflammatory remarks by a neo-Nazi KKK leader. A fascist or a Klansman cannot be fined or imprisoned for expressing his awful political views, nor could he be discriminated against in the provision of government benefits, such as welfare payments or educational loans.

Nonetheless, Congress would have good reason to impeach and remove a president who actively advocated and promoted fascism, incited fascist violence, and otherwise sought to replace our constitutional system with a fascist one. And that would be true even if the speech involved was of the kind generally protected by the First Amendment and his actions did not violate the letter of federal law.

Using the powers of the presidency to promote fascismeven legal powerswould be an abuse of power, and a menace to the constitutional order. The same goes for using the "bully pulpit" of the presidency for the same purpose, especially if it resulted in foreseeable violence.

What is true of presidential promotion of fascism is also true of Trump's repeated justifications and promotion of violence by his supporters, going all the way back to the 2016 campaign. All or most of it may well be protected against criminal and civil sanctions by the First Amendment. But it is still an abuse of the power of the presidency, and still grounds for impeachment and removal.

The same reasoning applies to Trump's recent effort to pressure the Georgia Secretary of State into fraudulently altering the vote count in his state, the other potential ground for impeachment currently under consideration by House Democrats [see Update #2 below]. Trump's actions in that instance may have violated federal and state law. But if not, his statements there were protected by the First Amendment, in the sense that he could not be subject to criminal or civil sanctions. Even so, pressuring government officials to engage in election fraud is an abuse of presidential power worthy of impeachment.

The obvious response to this argument is that it might lead to a slippery slope where Congress might impeach and remove presidents merely for expressing views they disapprove of. My critique of Josh Blackman's similar slippery slope argument against the first impeachment of Trump applies here as well:

Every president has partisan adversaries who who would be happy to "get him" if they can. Nonetheless, slippery slope fears about impeachment are misplaced. If anything, there is much more reason to fear that presidents who richly deserve to be removed will get away with serious abuses of power.

The biggest reason why we need not worry much about frivolous impeachment and removal is that removal requires a two-thirds supermajority in the Senate, as well as a majority in the House of Representatives to impeach. The former is almost always impossible to achieve unless many senators from the president's own party vote to convict him. They are highly unlikely to do so for frivolous reasons. [Prominent conservative legal scholar] Michael Paulsen expounds on this and some other constraints on abusive impeachment in greater detail here.

Ultimately, the real danger we face is not that too many good presidents will be removed from power unfairly, but that too many grave abuses of power will go unpunished and undeterred. I am not optimistic that impeachment alone can solve this problem. The supermajority requirement that prevents frivolous impeachment also prevents it in all too many cases where it is amply justified. But the threat of impeachment for abuse of power can at least help at the margin.

Let presidentseven "good" oneslose more sleep over the possibility of impeachment. The rest of us will then be able to sleep a little easier, knowing we are that much more secure against abuses of government power.

I made additional relevant points in this post, where I explained why the occasional potentially unfair impeachment and removal of a "normal" president is a price well-worth paying in order to get rid of dangerous menaces like Trumpand deter future presidents from imitating them.

The First Amendment issue isn't the only possible objection to impeaching Trump. I myself have noted that there might be valid prudential reasons to forego a second impeachment if it looks like it might actually redound to Trump's benefit.

I will likely have more to say about the other issues involved in this impeachment effort in future posts. In this one, I just wanted to address Blackman and Tillman's First Amendment theory.

UPDATE: I wrote this post before seeing Jonathan Adler's insightful response to Blackman and Tillman, which makes similar points to mine. I would add that, I too agree that the president may be impeached for abuses of power that do not qualify as violations of specific criminal or civil laws. For helpful summaries of the relevant historical evidence on that point, see recent analyses by Gene Healy of the Cato Institute, Keith Whittington, and prominent conservative legal scholar Michael Stokes Paulsen (here, here, and here).

UPDATE #2: The draft Article of Impeachment currently being circulated by some House members combines Trump's role in the Capitol attack and his call to the Georgia Secretary of State into a single count.

UPDATE #3: In the original version of this post, I accidentally referred to former Secretary of Defense Mark Esper, as "Mike Esper." I apologize for the error, which I have corrected.

See more here:

The First Amendment Doesn't Protect Trump Against Impeachment for his Role in Inciting the Assault on the Capitol - Reason

January 11, 2021 10:35 pm

LINCOLN, Neb. (KLKN-TV) As social media platforms like Twitter and Facebook continue to monitor and even suspend some of their users, its brought up an important topic of freedom of speech.

While The First Amendment can often be viewed as broad, thats essentially not the case when it comes to private companies.

The First Amendment, is it prevents government from restricting peoples speech. It does not prevent private individuals or private companies from restricting peoples speech, UNL Political Science Professor, Dr. John Gruhl, said.

It comes down to the terms of use everyone agrees to when they sign up for these platforms.

Those terms of service provide, essentially no protection to the user from being blocked or suspended, UNL Associate Professor of Law, Kyle Langvardt, said.

Due to the fact businesses like Twitter, Facebook, Instagram and Parler are privately owned companies, they have the right to monitor or even silence what they view as harmful or a threat.

Part of the reason that weve been able to have rules that are that protective of the freedom of speech, is that speech has just traditionally moved more slowly. We havent had this viral dynamic where its so easy for speech to lead to real world consequences, Langvardt said.

Landgvardt said with the increasing use of social media and the consequences that come with it, he wouldnt be surprised if soon, the government did step in to help regulate the rules of these platforms. However, even in that sense, it could be a tricky situation on how much control the government would have.

When it comes down to it, both Dr. Gruhl and Langvardt said when it comes to not agreeing with the terms of service on a platform, there isnt much a user can do legally other than leave the site.

Excerpt from:

Experts weigh in on the role social media platforms play in your First Amendment rights - KLKN

The Defense Department is taking heat for describing the recent attempted insurrection on Capitol Hill as First Amendment Protests in Washington D.C.

On Friday, the Pentagon released a timeline of how the National Guard was activated for and responded to the Jan. 6 riots, during which a pro-Trump mob attempted to recreate the 1917 Bolshevik revolution by storming Congress.

Five people died as a result of the terrorist attack on Congress, including Ashli Babbitt, an Air Force veteran who was shot and killed by police, and Brian Sicknick, a Capitol Police Officer and veteran of the New Jersey Air National Guard who died after reportedly being hit by a fire extinguisher.

Some people noted on Twitter that the Pentagon described the attempted putsch as First Amendment Protests a much milder description of the mayhem than when former Defense Secretary Mark Esper urged State officials this summer to dominate the battlespace in response to protests that erupted around the country over the death of George Floyd at the hands of Minneapolis police officers.

Jim Golby, a senior fellow at the Clements Center for National Security at University of Texas, Austin, tweeted that the Pentagons description of the riots was, Sickening and politically tone-deaf from the Office of the Secretary of Defense.

However, a defense official told Task & Purpose on Sunday that the Pentagon had simply used the same verbiage that came from a Dec. 31 memo from the Washington, D.C., city government to the head of the D.C. National Guard that requested help for Jan. 6.

Last week, Washington, D.C. Mayor Muriel Bowsers office provided Task & Purpose with a copy of a similar Dec. 31 letter to the commander of the D.C. National Guard that describes the upcoming event as First Amendment demonstrations permitted by the National Park Service.

Bowsers office could not be immediately reached for comment.

The assault on Capitol Hill was incited by outgoing President Donald Trump, who had waged an effort for weeks to pressure lawmakers and other officials to reverse the outcome of the presidential election.

Twitter decided to ban Trump on Jan. 8, in part because it had discovered plans for another assault on capitol buildings that was planned for Jan. 17.

UPDATE: This story was updated on Jan. 10 to make clear that the Dec. 31 letter from Mayor Bowsers office was similar to the memo referenced by the defense official.

Featured image: In this Jan. 6, 2021, file photo, Trump supporters gesture to U.S. Capitol Police in the hallway outside of the Senate chamber at the Capitol in Washington. (AP Photo/Manuel Balce Ceneta, File).

More:

Here's why DoD described the Capitol Hill riots as 'First Amendment Protests' - Task & Purpose

The Week

President Trump and House Minority Leader Kevin McCarthy (R-Calif.) had a "tense, 30-minute-plus phone call" Monday morning, during which Trump ranted about election fraud and McCarthy cut him off, saying: "Stop it. It's over. The election is over," Axios reported Monday night, citing a White House official and another source familiar with the call.Trump also tried to deflect responsibility for his role in inciting a deadly siege on the U.S. Capitol last Wednesday, telling McCarthy "antifa people" were responsible for the violence, Axios reports. McCarthy reportedly shot back: "It's not Antifa, it's MAGA. I know. I was there." Conservative cable news and other media has tried to pin the blame for the insurrection on leftist groups, antifa specifically, though there's clear and documented evidence the violence was perpetrated by Trump supporters, QAnon conspiracists, and far-right militia groups.McCarthy also told his House GOP caucus on Monday that there is "indisputably" no evidence of antifa involvement in the Capitol siege, Axios reported, adding that as he tries "to navigate how to bridge the factions within the party," McCarthy "is treading carefully by telling members Trump is partially to blame for what happened without condemning him outright."McCarthy told House Republicans on the two-hour call that Trump accepts some responsibility for the siege, too, Politico reports, citing four GOP sources on the call. Trump has not publicly taken any responsibility for the assault, even though he urged the supporters to march to the Capitol and fight for him. Emotions are "still running high in the conference," with many GOP members blaming McCarthy and his top lieutenant, Rep. Steve Scalise (R-La.), for going along with the 120 House Republicans who continued challenging President-elect Joe Biden's win even after the riots, Politico says.One freshman Republican, Rep. Nancy Mace (S.C.) said on the call she's "disappointed" that "QAnon conspiracy theorists" are not only leading the party, but also led the objections after members of Congress had to walk by a crime scene to get back to work Wednesday night, Politico reports. And Rep. Jaime Herrera Beutler (R-Wash.), one of a handful of House Republicans weighing voting to impeach Trump, slammed Rep. Lauren Boebert (R-Colo.) for tweeting House Speaker Nancy Pelosi's (D-Calf.) location during the siege, putting all members at risk. Boebert raised hackles on the call by suggesting Capitol Police had been involved in the siege, Politico says.More stories from theweek.com What 'Blue Lives Matter' was always about The Democrats' false choice on impeachment What Mike Pence should learn from Judas

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Social media and the First Amendment - Yahoo News