[T]he President uses his account to speak to the public, not to give members of the public a forum to speak to him and among themselves, the Department of Justice argues.

Donald Trump is a prolific tweeter; so, its not entirely surprising that hes decided to take a dispute about whether or not hes free to block whomever he wants on Twitter to the U.S. Supreme Court.

Trump was sued in 2017 by the Knight First Amendment Institute and several users who had been blocked from viewing his tweets. They claimed because the president uses the social media site as a public forum to share official information their constitutional right to petition the government was being violated.

A New York federal judge in May 2018 sided with the plaintiffs and found that Trump can't block Twitter users because of their political opinions without violating the First Amendment. U.S. District Judge Naomi Reice Buchwald held that the @realDonaldTrump account meets the Supreme Court's standards for a designated public forum; barring participation based on political speech constitutes viewpoint discrimination; and "no government official including the President is above the law."

Trump appealed the decision, but lost again in the 2nd Circuit. In July 2019, a federal appellate panel affirmed the finding that blocking critics from seeing his tweets amounts to a constitutional violation: The First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise open online dialogue because they expressed views with which the official disagrees."

On Thursday, Trump submitted a petition to the Supreme Court asking it to examine whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.

The presidents petition argues that he created a personal Twitter account in March 2009 and prior to his election he used it to tweet about a variety of topics, including popular culture and politics. Now, he still uses it for those reasons but also admits he has used the account to communicate with the public about official actions and policies of his administration.

He argues that his right to block people stems from his use of the site, not his elected office. The blocking capability was available to President Trump because he is a registered Twitter user, not by virtue of his public office, and is available to him on the same terms that Twitter makes that capability available to all account holders, Acting Solicitor General Jeffrey B. Wall in the complaint. He argues that anyone with internet access can view Trumps tweets, that if someones been blocked all they have to do is log out of Twitter, and that blocking users doesnt prevent them from criticizing him on the platform.

Even while logged into their blocked accounts, respondents may mention @realDonaldTrump in their own tweets, and may post screen-shots of @realDonaldTrump tweets with their own responses to those tweets, argues Wall. They may also view replies that others have posted in response to @realDonaldTrump tweets, and may reply to those replies. Those replies-to-replies appear in the collection of replies beneath @realDonaldTrump tweets for all to see, other than President Trump himself.

Trump disputes that his personal account has become an official government account just because he sometimes uses it to make official statements. He warns that if the ruling stands public officials wont be able to insulate their social media accounts from harassment, trolling, or hate speech with-out invasive judicial oversight like any other user could.

[T]he President uses his account to speak to the public, not to give members of the public a forum to speak to him and among themselves, Wall argues, again emphasizing that Trump intends this to be a personal, not work, account. Although President Trump is currently a public official, the @realDonaldTrump account belongs to him in his personal capacity, not his official one. He created and began frequent use of that account in 2009, well before taking public office. In contrast to the @WhiteHouse and @POTUS accounts, over which he may exercise control only by virtue of his office, he will continue to have control over the @realDonaldTrump account after his term of office has completed.

Wall argues that Trump blocking people who criticize him on Twitter is akin to an off-duty police officer asking uninvited guests wearing anti-police paraphernalia to leave a pavilion hes reserved in a public park to host a family picnic.

Like police forces, the rest of the governmentincluding the Office of the Presidentis staffed by people who retain private lives, argues Wall. To avoid expanding constitutional restrictions in a way that trammels their own constitutional freedoms, courts must distinguish between their private actions and state action.

Further, Wall argues people can no more insist on being given access to the Presidents tweets on @realDonaldTrump than they could insist on being given entry to Trump Tower if the President chose that as the venue where he made important official announcements to preferred members of the public and press.

By blocking people, Trump is just exercising his prerogative not to listen and he argues denying people in office the ability to do that may deter them from using social media. (Read the full filing below.)

Ironically, therefore, by curtailing the ability of public officials to choose whom they wish to interact with on their own social media accounts, the decision below has the potential to undermine speech rather than further it, argues Wall. Those concerns take on heightened significance when the public official in question is the President of the United States. Denying him the power to exclude third parties accounts from his personal accounta power that every other owner of a Twitter account possesseswould deter holders of his Office from using new technology to efficiently communicate to a broad public audience.

The Knight Instituted on Thursday issued a lengthy press release in response to the filing, including this statement from Executive Director Jameel Jaffer. This case stands for a principle that is fundamental to our democracy and basically synonymous with the First Amendment: government officials cant exclude people from public forums simply because they disagree with their political views, said Jaffer, who argued the case before the Second Circuit. The Supreme Court should reject the White Houses petition and leave the appeals courts careful and well-reasoned decision in place.

Link:

Trump Takes Fight Over Blocking Twitter Users to Supreme Court - Hollywood Reporter

In the midst of a challenging pandemic, many American cities have been under siege. Amid violence and riots, the rule of law has been abandoned by the same elected officials who swore to uphold it. Law-abiding citizens who unwittingly drove through protests have found themselves attacked or left to the mercy of a mob.

Many Americans are indeed now choosing to exercise their Second Amendment rights; a national indicator for gun sales is at an all-time high.

The promotion of civil unrest and the systematic destruction of neighborhoods and businesses have been permitted with limited consequences under the guise of the First Amendments protection of the right to protest. Yet when the case for protecting the Second Amendment couldnt be stronger to reasonable Americans, the left is yet again trying to weaken it.

As Americans, our constitutional rights and individual liberties are not just a source of patriotic pride but the lifeblood of our democracy. The founders knew that the right of citizens to bear arms was essential to the preservation of democracy and liberty. The Second Amendment ensures that Americans can protect themselves, their families and their businesses, especially when the government is unwilling or unable to do so. And many Americans are indeed now choosing to exercise their Second Amendment rights; a national indicator for gun sales is at an all-time high.

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The left has long attacked the Second Amendment, as they believe it is antiquated and unnecessary, and have assured us they can protect us better than we can protect ourselves. But in a time of crisis, many of them have revealed that they wont actually use law enforcement and even support defunding the agencies that protect and serve all communities. Now they are attacking a private organization thats trying to do the same.

Just three months before a presidential election, New York Attorney General Letitia James has filed suit against the NRA and several members of its leadership, seeking to have the gun rights organization dissolved. This lawsuit, filed in New York state court, is the apex of a longstanding feud between the NRA and the Democratic state attorney general. James attacked the NRA while she was a candidate for attorney general, calling it a terrorist organization and a criminal enterprise.

James knows that if the NRA were dissolved, it would be a huge personal and political victory, as the Democrats would finally be able to silence the largest Second Amendment and gun safety advocate in the country. The NRA promotes responsible and safe firearm ownership and self-defense, and it encourages favorite pastimes like hunting and recreational shooting. Thats a staple of life for folks like us in Arkansas, and a far cry from James nefarious terrorist organization and criminal enterprise labels.

As state attorneys general, we are tasked with protecting the interests of consumers and holding bad actors accountable. Since the NRA is based in New York, James office has the jurisdiction to investigate this organization, like any other charity or nonprofit. But while the lawsuit alleges that NRA leadership misused the organizations funds for their own personal gain, no NRA executives have been charged with any crimes, though James has threatened criminal charges pending the outcome of her offices investigation.

Moreover, James doesnt seem to be too worried about protecting the interests of the consumer: those who are NRA members. If successful, the lawsuit could permanently bar the strongest Second Amendment advocate from raising funds for its cause and ultimately dissolve the multimillion member organization. Instead of holding the alleged bad actors accountable, James seems to believe she has found a way to finally rid the left of one of its greatest political adversaries and, possibly, its least favorite constitutional amendment.

However, like any good defender of freedom, the NRA is fighting back. The same day New York filed its state suit, the NRA filed its own lawsuit in federal court, pointing to then-candidate James campaign promise to take on the NRA if elected. The NRA claims that James lawsuit is nothing more than a politically motivated stunt to deliver on that promise not a response to any real fraud.

The NRAs lawsuit is based on the First Amendment and similar New York state law. The NRA argues that it is being targeted for its pro-Second Amendment advocacy and that James request to dissolve the NRA is nothing more than an attempt to silence political speech. The NRA is also asking the federal court to stop James from interfering with its free-speech rights and to declare that the NRA is in substantial compliance with New York not-for-profit law.

As Americans, our constitutional rights and individual liberties are not just a source of patriotic pride but the lifeblood of our democracy.

So, is this lawsuit really about the NRA, or does it represent a bigger agenda of the left? While the suit may be a great political rallying cry for James in New York and other liberal arenas heading into the November election, the rest of us see this lawsuit for what it truly is: a deliberate attack on the Second Amendment and those of us who support it.

I understand the importance and duty of attorneys general to investigate allegations of corruption and fraud, but James eagerness to dissolve the entire organization rather than to hold potential bad actors accountable speaks volumes about her real motives. The left has worked tirelessly to rewrite history, but we will not and cannot allow it to try to rewrite the Constitution.

Leslie Rutledge is the first female and first Republican to be elected attorney general in Arkansas. A strong advocate for individual liberties, she defends those same constitutional rights deemed essential to the preservation of our democracy by the Founding Fathers.

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Guns, the NRA and the Second Amendment are under assault from the left - NBC News

Children's Rights

By Amanda Robert

August 21, 2020, 3:00 pm CDT

Image from Shutterstocl.

When contracting with the city of Philadelphia to provide foster care services, Catholic Social Services must adhere to the governments nondiscrimination policies, the ABA told the U.S. Supreme Court on Thursday.

In an amicus brief filed in Fulton v. City of Philadelphia, Pennsylvania, the ABA noted that according to Supreme Court precedent, the government can put conditions on participation in its programs, and in this case, the city of Philadelphia did not violate the religious foster care agencys rights under the First Amendment.

To promote the best interests of children, the ABA has long advocated policies that ensure there is no invidious discrimination in the administration of foster care systems that would be adverse to the interests of children in foster care, the amicus brief states.

Catholic Social Services, along with foster parents Sharonell Fulton and Toni Simms-Busch, filed the cert petition in the case in July 2019. They argued that Catholic Social Services was excluded from Philadelphias foster care system because the city and the Archdiocese of Philadelphia disagreed over marriage.

As a Catholic agency, CSS cannot provide written endorsements for same-sex couples which contradict its religious teachings on marriage, they said in the petition, which was granted by the Supreme Court in February. The mayor, city council, Department of Human Services, and other city officials have targeted CSS and attempted to coerce it into changing its religious practices in order to make such endorsements.

Catholic Social Services filed an injunction to force the city of Philadelphia to renew its public services contract. The 3rd U.S. Circuit Court of Appeals at Philadelphia affirmed the lower courts denial of the injunction, holding that the agency failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.

The city of Philadelphia said in its brief in opposition in the case that contracts between its Department of Human Services and Catholic Social Services both prohibited discrimination on specific grounds and required compliance with its Fair Practices Ordinance.

This ordinance precludes discrimination based, among other things, on race and sexual orientation, the city said. DHS has never authorized providers to refuse to certify, let alone refuse to establish fostering relationships with, prospective parents because of their membership in any protected category, including sexual orientation.

By insisting that city contractors adhere to the terms of their contracts in carrying out the Citys obligations to children in its care, Philadelphia is not violating the First Amendment rights of those contractors, the ABAs amicus brief states. Rather, Philadelphia is simply requiring that any private agencyinsofar as that private agency voluntarily contracts to perform a governmental function in the administration of Philadelphias foster care systemact in compliance with the terms of that contract.

The Supreme Court will now consider three questions: whether plaintiffs can only succeed by proving a particular type of religious discrimination claim; whether to revisit the 1990 decision in Employment Division v. Smith, which held the government can enforce laws that burden religious beliefs or practices if the laws are neutral or generally applicable; and whether the government violates the First Amendment by compelling a religious social service agency to take actions and make statements that conflict with its beliefs in order to participate in the foster care system.

The ABA has significant experience in issues relating to foster care and has advocated against discrimination in the administration of foster care systems that would harm children in those systems.

In 1999, the association adopted policy supporting laws that provide sexual orientation should not be a bar to adoption, and in 2019, adopted policy addressing discrimination against LGBTQ people who are parents or who desire to be parents through fostering or adoption.

Oral arguments have not yet been scheduled in this case.

Link:

Foster care agencies that contract with the government shouldn't discriminate, ABA says in amicus brief - ABA Journal

This year marks the 100th anniversary of women being granted the right to vote, after a hard fought battle for the passage of the 19th Amendment. To be clear, the 19th Amendment, which was officially ratified on August 18th, 1920, was a victory for white women voters. Black women, and other women of color, didn't gain the right until President Lyndon Johnson signed the Voting Rights Acts of 1965 into law. Across the country, 19th Amendment commemorative events have been underway all year, including one held this past Tuesday 100 years later to the day by the Boston Landmarks Orchestra. The orchestra marked the historic centennial with a special event a concert comprised entirely of music written by women, as well as a tribute to honored historical figures.

Guests:Grace Kelly, Boston native, singer-saxophonist-composer, host of the Landmarks Orchestras concert, Shes the First: Music to Celebrate the 19th Amendment's Centennial. Grace is also co-creator of our Under the Radar theme music.

Christopher Wilkins, music director of Landmarks Orchestra, who conducted the Shes the First concert.

Listen to the full "She's The First" concert here.

Read the rest here:

'She's The First' Musically Marks The 19th Amendment Centennial - wgbh.org

ANN ARBOR, MI Disagreeing with a federal judges ruling in a lawsuit over anti-Israel protests outside an Ann Arbor synagogue, the plaintiffs are seeking reconsideration.

Marc Susselman, lead counsel to the plaintiffs, called the judges dismissal of the case this week a minor setback.

The court did not rule on the merits of the case or address any of the First Amendment issues, he argued. This was a technical ruling on the matter of whether the plaintiffs have standing to sue. The plaintiffs clearly have standing based on the emotional distress caused by the presence of anti-Semitic signs outside their place of worship.

Additionally, the fact that the plaintiffs allege the protesters violated several federal statutes also gives them standing to sue, Susselman maintained.

In an 11-page order Wednesday, Aug. 19, U.S. District Judge Victoria Roberts said the First Amendment more than protects the expressions by defendants.

Peaceful protest speech such as this on sidewalks and streets is entitled to the highest level of constitutional protection, even if it disturbs, is offensive, and causes emotional distress, the judge wrote.

The judge also found the plaintiffs failed to assert a concrete injury and lacked standing to sue.

The lawsuit was filed last year by Marvin Gerber, a member of the Beth Israel Congregation at 2000 Washtenaw Ave., where Henry Herskovitz and his anti-Israel protest group have demonstrated on Saturday mornings for more than 16 years.

Miriam Brysk, identified in court records as a Holocaust survivor and member of the Pardes Hannah Congregation located in an annex next to the synagogue, joined as a co-plaintiff.

Bitter conflict breeds unlikely friendships in Ann Arbor synagogue protests

Gerbers attorney argued in court filings the protests amount to hateful, anti-Semitic speech and the lawsuit named as defendants both the protesters and city officials for allowing the demonstrations to continue without restrictions.

Protest signs have carried messages such as Resist Jewish Power, Jewish Power Corrupts, No More Holocaust Movies, Boycott Israel, Stop U.S. Aid to Israel and End the Palestinian holocaust.

Ziporah Reich, litigation director at the The Lawfare Project and co-counsel to the plaintiffs, said the judges decision this week is contrary to federal case law and precedent.

In granting the defendants motions to dismiss, the court is effectively saying that the emotional distress experienced by Jews, in reaction to the anti-Semitic slurs hurled at them every week for 16 years in front of their house of worship, is insufficient injury to grant them access to federal court, she said. We will be filing a motion for reconsideration and, if it is denied, we will file an appeal with the 6th Circuit Court of Appeals.

Roberts discussed in detail the actions of the protesters in her 11-page order.

They do nothing that falls outside the protections of the First Amendment, since a function of free speech under our system of government is to invite dispute, the judge wrote, citing the 1949 case of Terminiello v. City of Chicago.

In public debate, we must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment, " the judge added, citing the 1988 case of Boos v. Barry.

If the plaintiffs motion for reconsideration is not granted, Reich said shes confident theyll find justice in the Court of Appeals.

Were prepared to take this as far as necessary to enforce the rights of the Jewish community, she said.

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More:

Plaintiffs take issue with judges dismissal of Ann Arbor synagogue protest lawsuit - MLive.com

A billboard that Team Roc had planned to place in Wauwatosa was rejected by Lamar Advertising because it dealt with a potential crime, according to Lamar.(Photo: Submitted)

A social justice group might seek legal action after an advertising company rejected its plans for a billboard saying "Officer Mensah must be held accountable."

Lamar Advertising Co. rejected two proposals by Team ROC rapper and songwriter Jay-Z's social justice organization for billboards that would have brought attention to Wauwatosa Police Officer Joseph Mensah, who has shot and killed three people in the line of duty in five years.

"Justice forAlvin Cole, Jay Anderson, Antonio Gonzales. They did not deserve to die. Officer Mensah must be held accountable," one of the billboards would have read.

An attorney for Team ROC saidthat the rejection of the proposed billboard is "outright censorship."

"Frankly, for a company that purports to want to protect people's First Amendment rights, this really struck us as censorship on what is a hot-button topic," said attorney Jordan Siev.

Supporters of Alvin Cole wait for his family to return from a meeting with Milwaukee County District John Chisholm on June 11. The DA is investigating Wauwatosa Police Officer Joseph Mensah, who shot and killed Cole on Feb. 2, at Mayfair Mall. Wauwatosa Police said Cole had a gun and fired a shot during the incident.(Photo: Rick Wood / Milwaukee Journal Sentinel)

Allie McAlpin, communications director for Lamar Advertising Co., said the group is welcome to submit another design.

"The billboard copy from Team Roc was vetted through our usual copy acceptance process and rejected on the basis that we do not post copy concerning potential crimes, unless there has been a judicial determination of guilt," McAlpin said in an email.

The location for the proposed billboard is atInterstate 94 and84th Street, near the Pettit National Ice Center.

Mensah is currentlybeing investigated by the Milwaukee County District Attorney's Office for the shooting death of Alvin Cole in February.

The shootings of Antonio Gonzales and Jay Anderson Jr. were previously deemed justified self-defense by the Milwaukee County District Attorney's Office.

Team ROC is one of three social justicegroups that took out afull-page advertisement in the Milwaukee Journal Sentinel on July 2, calling for Mensah'sremoval.

Wauwatosa Police Officer Joseph Mensah(Photo: Submitted)

Siev said the group contacted Lamar in July to check what billboards were open in the Wauwatosa area.

After Lamar confirmed that it had an open billboard,Team ROC submitted a design.

The first design said"Justice for Alvin Cole, Jay Anderson, Antonio Gonzales. They did not deserve to die. Officer Mensah must be held accountable."

Lamar denied that design, saying it"could have an effect on a future action."

The group submitted another design after that, removing the words "Officer Mensah must be held accountable," and adding the words "Police officers shouldn't murder innocent people."

Lamar also rejected that design, citing the same reason.

The second billboard design from Team ROC.(Photo: Submitted)

Siev sent a letter toLamar this week for improperly censoring Roc Nations speech on a matter of considerable public interest."

"My question is, what is this billboard, if not a quintessential case of a public service message that should be protected by the First Amendment," Siev said.

"Lamar doesn't have to agree with it, and people don't have to agree with it, but this is a matter of great public importance," he added.

Siev said they'll determine whether they need to take legalaction if Lamar doesn't allow the groupto post the billboard design.

A copy acceptance policy from Lamar says "Lamar reserves the right to reject advertising copy for any reason."

That policy also says the company can reject advertising if:

That policy, which was approved in 2016, also says "Lamar Advertising supports the First Amendment right of advertisers to promote legal products and services.

We also advocate the use of our medium for political, editorial, public service and other noncommercial messages."

Lamar didn't respond to a request for an interview.

Evan Casey can be reached at 414-403-4391 or evan.casey@jrn.com. Follow him on Twitter @ecaseymedia.

Our subscribers make this reporting possible. Please consider supporting local journalism by subscribing to the Journal Sentinel at jsonline.com/deal.

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Jay-Z's social justice group wants a billboard saying 'Officer Mensah must be held accountable,' but it was rejected - Milwaukee Journal Sentinel

The number of active Coronavirus cases in Northeast Tennessee declined for the fourth-straight day on Thursday, the first time its declined for at least four days since mid-May, when there were only 30 active cases in the region.

Two residents at a Johnson City nursing home have died after contracting the novel coronavirus, and one new fatality was reported in Sullivan County, bringing the regions death toll to 56.

If the active case count decreases again on Friday, it will be the first time active cases have decreased five days in a row since April 13-17. As of Thursday, there were 2,918 active infections.

The regions 61 new cases meant that number was fewer than 100 for the third time this week.

Carter County Mayor Rusty Barnett said during a Health and Welfare Committee meeting on Tuesday that the county would see an additional 74 cases added to its total on Wednesday due to an error by the health department that misattributed where those cases were. Those cases had yet to appear in Carter Countys case count as of Thursday.

According to Ballad Health, there were eight new hospitalizations reported in the region on Thursday.

While parents and students deal with the very real aspect of COVID-19, they are also having to battle technical difficulties with the new school year.

This was the districts second week of virtual learning, and during the first week of classes, technical difficulties were a main concern among teachers, parents and students. Monday proved to be no different, as at 8:02 a.m., the district said it was experiencing technology issues. About an hour later, the district said issues were resolved, but the early problems had already created a nightmare day.

Mondays problems mainly had to do with the districts internet access, as some instructors worked from home to work around those issues, and the districts tech department worked to resolve the issues. These are complications that should continue in the future, as all technical snags have a way of popping up, but the schools and parents, as well as the students themselves, are dealing with it quite well. We hope.

Motivated in part by a First Amendment lawsuit filed by protesters at the 2018 TriPride Festival, Johnson City plans to move the management of events at three downtown sites in-house.

The Johnson City Commission voted unanimously Thursday to terminate its management agreements with the Johnson City Development Authority for King Commons Park, Founders Park and the Pavilion at Founders Park. The city will add an employee to manage special events under its communications and marketing department. That position will be funded with money reallocated from the JCDA.

The JCDA has offered to continue to be the connection between the Johnson City Farmers Market and the city and will offer support to anyone organizing events downtown. They have also asked that the city continue to provide rental income that the organization has relied on to fund programming like Founders After 5.

In June 2019, three protesters filed alawsuitagainst Johnson City and seven city police officers, claiming that their First Amendment rights were violated during the TriPride Festival.

Plaintiffs in the case stated they were peacefully sharing their Christian message on a public sidewalk and park during the TriPride Festival in September 2018. They claim officers with the Johnson City Police Department told them they could not preach in Founders Park, where the festival was held, could not bring their signs into the festival area and could not stand on the sidewalk outside the festival area. They claim that the officers then threatened to arrest them.

Founders Park was leased by the TriPride organization ahead of the event, and protesters were given areas along the parade route to demonstrate. Some later were along the fencing at Founders Park, and police instructed them to move back.

Johnson City attorney Erick Herrin said it will be more beneficial for the city have a central location to implement a policy regarding gatherings, noting that the key to First Amendment issues is consistency.

See the original post here:

JCP Week in Review, August 21 | Photo & Video - Johnson City Press (subscription)

In an interview, U.S. Rep. John Yarmuth talked about the Louisville Metro Council's move for a no-confidence vote on Mayor Greg Fischer. Louisville Courier Journal

Louisville Mayor Greg Fischer's administration has "no right" to insist that city officials deliver testimony behind closed doors in the Metro Council's investigation into the Breonna Taylor protests, attorneys with the Kentucky Press Association say.

The Open Meetings Act exemptionthat Fischer's attorneys are claiming doesn't apply in this case, the attorneys write, and if it did, that would be a "radical re-writing" of the law.

In a blistering brief filed in the pending lawsuit between Metro Government and the Metro Council, the First Amendment attorneys argue that Fischer is asking for a "breathtaking expansion" of the law that could hinder the public's ability to view future meetings.

"Any number of public policies or subject matters could give rise to litigation," write attorneys Jon Fleischaker, Michael Abate and Casey Hinkle, who have also represented The Courier Journal in open government cases.

"If the litigation (exemption) extended to the facts underlying a public agency's actions, then an agency could hold all discussions of proposed policy alternatives, or all oversight hearings, behind closed doors on the theory that they might get sued," the attorneys add in the "amicus curiae," or friend of the court, brief.

Earlier: Metro Government sues to block council subpoenas in Taylor protest inquiry

Fischer's team has argued that testimony from Chief of Public Safety Amy Hess and interim LMPD ChiefRobert Schroeder ought to be delivered behind closed doors because afederal civil rights lawsuit filed July 30over the police department's response to peaceful protestersoverlaps with the topics of discussion in the Metro Council's probe.

But the Metro Council's Government Oversight and Audit Committee conducting the investigation disagreed with that legal argument and subpoenaed Hess and Schroeder.

The Fischer administration is fighting those subpoenas in court, and a hearing on the case is scheduled for Monday before Judge Audra Eckerle.

Fischer's spokeswoman, Jean Porter, said in a Friday statementthat"We don't think (the Kentucky Press Association's) filing adds anything new to the positions of the parties. We look forward to presenting our case to Judge Eckerle on Monday."

Earlier this week, a resolution calling for a no-confidence vote in Fischer was filed by all seven Metro Council Republicans, who said they felt they had no choice but to do so after Fischer "stonewalled" the committee's investigation. Fischer has dismissed the resolution as a political game.

The scope of the probe itself is wide-ranging and expected to include Fischer's handling of the Taylor case and David McAtee's death, along with the city's response to protests for racial justice that have gone on nightly in downtown Louisville since they began on May 28.

The first piece the committee planned to probe so as to avoid interfering with the ongoing investigations into Taylor's death by the state attorney general and the FBI was how the police responded to early protests.

Related: Would Fischer no-confidence vote undercut council's Taylor probe?

Topics agreed upon by attorneys for the Aug. 3 committee hearing where Hess and Schroeder were expected to testify included, among other things:

But while Hess and Schroeder were in council chambers on Aug. 3, their attorneys said both would be unable to testify unless the committee went into closed session.

"When we compare the allegations in the civil rights lawsuit just filed on July 30 with the topics on today's agenda ... there is absolutely a complete overlap," attorney David Guarnieri, who is representing Hess, said, going on to argue that since the topics touch on "pending litigation," the testimony should be in closed session.

A lawsuit challenging the subsequent subpoenas, filed Aug. 11, adds that Hess and Schroeder have "nothing to hide" and are willing to testify in executive sessionor in open session at a time when "doing so will not adversely impact" the pending civil rights lawsuit regarding the city's response to protesters.

(A judge has since granted temporary restraining orders blocking the subpoenas from being enforced for Monday's specially called committee hearing.)

That legal argument, however,is fundamentally flawed, the Kentucky Press Association attorneys write, because none of the exemptions to the Open Meetings Act applies.

See also: Metro Council rejects 'buffer zone' ordinance for health care facilities

In theirbrief, attorneys cite a 1997 court case andwrite that the "litigation exemption"only extends "to matters commonly inherent to litigation, such as preparation, strategy or tactics."

That doesn't include facts that may come up in litigation, they add.

Plus, that exemption can be claimed only by public agencies involved in a lawsuit meaning that, since the Metro Council is not a party to the suit, it could not claim it.

In fact, Metro Government, the entity being sued, isn't even subject to the Open Meetings Act.

"Neither the mayor nor the LMPD is required to open its meetings to the public," the brief says. "Thus, Metro Government cannot avail itself of any of the exemptions under the Act if asked to testify before an agency subject to that law."

Darcy Costello: 502-582-4834; dcostello@courier-journal.com; Twitter: @dctello. Support strong local journalism by subscribing today: courier-journal.com/darcyc.

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Fischer team wrong to demand closed-door testimony in Metro Council probe, attorneys say - Courier Journal

Since its beginning, the American Republic has debated sedition, free speech, and protection of reputation. After we cut our British roots we ensured our right to criticize our leaders, the politicians who control our government. The British crown demanded loyalty of its printers, but American courts would not tolerate such prosecutions as the notion of a truly free press emerged.

Today, we are witnessing an intense intersection of politics and libel law unlike anything weve seen since the 1960s. Politicians are suing for libel damages and being sued. The current overlap of politics and libel includes a push by the president of the United States to change libel law. Those who seek change, including President Trump, say they want to make it easier for plaintiffs to prevail and collect damages. Careful what you wish for, though, because such change would ease the path for plaintiffs seeking to collect damages from public officials such as Donald Trump.

Heading into the 2020 election, the Trump campaign filed three lawsuits in a 10-day period against mainstream media.

Legal scholars and pundits have opined that Trumps pending libel complaints against The New York Times, The Washington Post, and CNN are weak or even dead on arrival. These analysts point out that Trumps campaign is seeking damages due to political opinions, which are protected speech under the First Amendment.

As a life-long public figure and now public official, Trump (his re-election campaign is the plaintiff) must prove that the media defendants acted with actual malice, that is, reckless disregard for the truth or that they published information knowing it was false. The actual malice standard is well established through the First Amendment by a unanimous U.S. Supreme Court in New York Times v. Sullivan in 1964.

Win or lose in court, the presidents libel lawsuits also are political messaging, dramatic actions that complement his anti-press rhetoric. The stories about the libel suits are arguably more effective than the libel suits themselves in the presidents battles to discredit the mainstream press. In addition to political messaging, libel claims even when they fail in court -- can be a form of punishment.

Presidential involvement in libel litigation is rare, but not unprecedented. President Theodore Roosevelt was irritated by published allegations of corruption in the sale of the Panama Canal. He pushed the Justice Department to prosecute publisher Joseph Pulitzer and other newspapermen for criminal libel. Courts later quashed indictments.

After his presidency, Roosevelt was sued for libel by a New York political figure (William Barnes) who objected to being called corrupt by Roosevelt. The jury trial, in Syracuse in 1915, was grist for Dan Abrams book Theodore Roosevelt for the Defense. The jury ruled in Roosevelts favor; he seemed to thrive in legal combat, the book says.

Fifteen years ago, there was speculation about the prospect of President George W. Bush suing the National Enquirer. The Enquirer published a report based on unnamed sources who claimed that pressures of the job led Bush to drink, even though he said he gave up alcohol on his 40th birthday.

The president would be exceptionally ill-advised to file suit over this story, even if he knows . . . its false, wrote First Amendment lawyer Julie Hilden in 2005.

She suggested such a suit would likely fail because its actual malice claim appeared to be weak. Plus, she warned, the suit would expose the president to civil discovery. Bush did not sue.

After the 1964 election, Republican presidential candidate Barry Goldwater successfully sued Fact Magazine and its publisher for an article questioning Goldwater's mental fitness to hold office (Goldwater v. Ginzburg). Federal courts found that Goldwaters complaint met the actual malice standard, awarding $75,000. The U.S. Supreme Court, in 1970, declined to hear the case.

In seven earlier speech-related cases filed by Donald Trump or his companies before he became president, four were dismissed on the merits, two were voluntarily withdrawn, and one was an arbitration won by Trump by default. These findings were compiled by Susan E. Seager, a First Amendment attorney who teaches media law at University of Southern California. Indeed, this appears to be a way of life for the highly litigious Trump, who has been involved in approximately 4,000 legal battles over the past 30 years, both as a plaintiff and defendant. An exhaustive analysis by USA Today detailed those seven libel cases where he initiated the lawsuits and seven more where he was named defendant. These dont even include the threats of suits, the so-called Ill sue you effect that can too often chill speech.

A common thread of these cases is the pursuit of jumbo damages. Trump alleged $5 billion in damages (in New Jersey state court) because author Timothy OBrien and his book publishers cast doubt on the size of the real estate moguls wealth. Trump lost after five years of litigation but assessed the outcome this way to The Washington Post: I spent a couple of bucks on legal fees but they spent a whole lot more. I did it to make [OBriens] life miserable, which Im happy about.

Judicial appointments are a priority for the Trump Administration. Interestingly, a judge nominated by the president in 2018 dismissed (with prejudice) a case filed by a Republican congressman.

On August 5, 2020, U.S. District Court Judge C.J. Williams of the Northern District of Iowa dismissed Congressman Devin Nunes defamation complaint against Esquire writer Ryan Lizza and its publisher. The judge said published criticism of Nunes (R-CA) was not actionable (Devin G. Nunes v. Ryan Lizza and Hearst Magazine Media, Inc).

Interestingly, part of this recent case deals directly with President Trump and his tweets. Ill quote Judge Willliams opinion regarding Trumps tweet that Obama had my wires tapped in Trump Tower:

First, to the extent defendants assert President Trump made up the tweet,

the statement is not of an concerning plaintiff (Nunes). Second, plaintiff has

not alleged that the statement is false. Third, even if the statement is factually inaccurate, the statement that plaintiffs theory about surveillance of the Trump campaign began with President Trumps tweet is not defamatory.

Sarah Palin, John McCains vice-presidential running mate in 2008, sued The New York Times for defamation, claiming that a 2017 editorial maliciously associated her with a mass shooting that injured Congresswoman Gabrielle Giffords (D-AZ). A federal judge dismissed her case, but a 3-0 panel of the U.S. Second Circuit Court of Appeals reversed, thus reviving the case (Sarah Palin v. The New York Times).

Besides the characters involved and the reversal in federal court this case is interesting because The New York Times published a correction: An earlier version of this editorial incorrectly stated that a link existed between political incitement and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established.

To prevail, Palin a public figure -- must show that the newspaper acted with actual malice.

Meanwhile, a former contestant on The Apprentice, Summer Zervos sued President Trump in 2017 claiming she was defamed because candidate Trump said her allegations of his sexual misconduct in 2007 were lies. In 2019, a 3-2 majority of a New York State appeals court rejected the argument from Trumps counsel that a sitting president cannot be sued in state court (Zervos v. Trump).

In addition to its spotlight on the Supremacy Clause, the Zervos lawsuit also examines the boundaries of opinion-as-defense in defamation disputes. Trumps lawyers argue that his campaign rhetoric and opinions are protected by the First Amendment.

Nicholas Sandmann, a student at Covington Catholic High School in northern Kentucky, alleged that he was defamed by news coverage and social media sharing of accounts of his encounter near the Lincoln Memorial with a Native American activist in early 2019. Sandmann sued The Washington Post for $250 million; NBC and CNN for $275 million each. CNN and The Washington Post settled for undisclosed terms.

Are media rattled by all this litigation? Yes, I think thats pretty apparent. How could they not be in this anti-press environment? Libel claims are part of a general, overarching criticism of press, reporting the news, and media prerogatives.

From a bottom-line standpoint, media must pay for legal defense. Newspaper publisher McClatchy a defendant in one of Congressman Devin Nunes myriad libel suits filed for bankruptcy in February. The Poynter Institute for journalism published commentary in 2019 that McClatchy could hire 10 reporters for the money it would spend on the Nunes lawsuit.

A small newspaper in Iowa (Carroll Times Herald) won a libel case but created a GoFundMe appeal in 2019 because the legal defense drained its resources. Response to the solicitation mainly small donations, from across the country was impressive.

Most certainly the Sandmann cases have drained considerable resources from some of the most noted media companies in the country as those out-of-court settlements show.

We also see a flurry of high-dollar claims not directly related to political speech.

On August 14, the unanimous North Carolina Supreme Court upheld a jury's libel decision against the Raleigh newspaper (Beth Desmond v. The News & Observer Publishing Company). The Ohio private liberal arts Oberlin College is appealing the whopping $44 million in damages awarded to a local bakery stemming from an alleged shoplifting attempt by three African American students (Gibsons Bakery v. Oberlin College). Rolling Stone paid dearly for its flawed article about a campus rape at the University of Virginia.

Fundamental change is not likely in the near future. Justice Clarence Thomas suggested its time for the Supreme Court to examine/roll back the New York Times v. Sullivan standard created in 1964. The premise is that current strict standards intended to protect free speech and free press make it nearly impossible for public figures and public officials to prevail in libel cases.

Justice Thomas colleagues on the Court have not publicly joined him in urging review of Sullivan.

Libel cases are percolating in federal and state courts that eventually could ripen for Supreme Court review. The Roberts Court has been protective of speech, including commercial and political speech, such as:

Citizens United v. FEC, 2010 (political contributions)

Snyder v. Phelps, 2010 (picketing at funerals)

Sorrell v. IMS Health, 2011 (data mining, drug marketing)

Reed v. Town of Gilbert, 2015 (sign regulations cannot be based on content)

Matal v. Tam, 2017 (trademarks)

We all can be grateful that American libel law does not mirror British libel law, where the burden of proof is on the defendant rather than the plaintiff. Surely by now we have all seen the clickbait coverage of actor Johnny Depps libel case against The Sun (Johnny Depp v. News Group Newspapers) for its 2018 reportage of his contentious divorce, which included a headline calling him a wife beater.

American libel law is not British libel law. And we need to keep it that way.

The National Law Forum. LLCNational Law Review, Volume X, Number 234

Link:

Libel Law, Litigation Politics and Trump Ahead of 2020 Election - The National Law Review

Treasure Coast Newspapers Published 4:00 a.m. ET Aug. 21, 2020

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As I write, the postmaster general has decided to stand down on disrupting the mail flow for the general election Nov. 3. However, based on his previous behavior and conflicts of interest, I don't trust him.

In Martin County, a safer way than mailing it is to hand-carry the ballot to the Martin County election office on the corner of Martin Luther King and Dixie Highway, up to the last minutes of the election. There is a slot outside or you can bring it in.

From Oct. 19 through Oct. 31 you can bring it inside any libraryin Martin County.

Check with the election office on any details. Make your vote count.

Harvey Finegold, Stuart

Letter carriers load mail trucks for deliveries at a U.S. Postal Service facility in McLean, Viriginia, on July 31, 2020.(Photo: J. Scott Applewhite, AP)

Back when I was in school, we were taught that you could not go on to the second lesson until you mastered the first lesson. If you did move forward without a full grasp of the first lesson, you were surely going to stumble and fail on the second lesson.

As we try to debate the Second Amendment, and come up with solutions on gun control, I wonder if the real root cause is not in the Second Amendment? It seems most of the mass shootings stem from someones hatred against another persons or groups freedom, religion, or right of expression. Those are First Amendment guarantees.

I grew up with guns. Some of my fondest memories as a kid was taking my gun into the woods with friends, setting up bottles or cans, and shooting at them to see who was the better shot. In addition to having fun, it also taught you respect and responsibility, because you knew the danger involved. I would hate to see that privilege taken way.

So, as we fight not to have that privilege taken away, I think we take the wrong approach. We say that weapons are there for our protection. The reality is that no personal firearm, regardless of its capabilities, would defend you against an attack from a foreign country, as it would have back when the Second Amendment was written. You would be no match for such arsenals as tanks, missiles, rockets, fighter jets, bombers, and nuclear bombs.

So my question is: What are you really protected against? Certainly not an attack from a foreign country. My guess: someone who hasnt quite mastered the first lesson (the First Amendment). The next time you really want to stand up and fight for the Second Amendment, start and practice the First Amendment.

Mike Bentz, Stuart

I was so sad to hear about the shops and restaurants in Port St. Lucie West. Having lived in PSL West for over 15 years I cannot understand why the snowbird bill that is before Congress again (vetoed by President Obama) is not passed. I am a Canadian and this bill sponsored by Sen. Marco Rubio would allow seniors to stay in your wonderful country for eight instead of six months. Many Americans do not realize that we are only allowed 182 days in America and being law-abiding people we adhere to the law.

My wife and I can not access any government programs, we have health insurance and love to dine out, buy things and generally enjoy the area. The statistics for snowbirds spending is well documented. Why not increase it by a third?

The only negative reason I have been able to find is that this is an immigration issue and part of a bigger picture. No offense, but I do not want to immigrate and this is a bipartisan bill. Our government lacks common sense just like yours but tell my barber, grocery store worker or favorite waiter in PSL that this makes sense.

I last heard it was before Homeland Security, and an all-out attack from Canadian seniors could be a serious national disaster.

Looking forward to again returning this November. I'm sure my wife's shopping will stimulate the local economy and I hope there are many restaurants open for our dining pleasure.

Murray Chalmers, Port St. Lucie

As I was watching the president of this rich country doing another one of his campaign speeches from his country club, surrounded by his (except for one) white-privilege millionaire members and donors, I was wondering how his unemployed loyal minions were reacting to the crumbs he was tossing at them by signing an executive order that would givethem $400 a week and no payroll taxes.

Am I missing something here? You do not get a paycheck, so you do not pay payroll taxes, really.

Trumps Republican minions refused to vote on the $600 that the Democrats felt was needed, which came to $31,200 year, only $5,000 above the federal poverty guideline for a family of four. The $400 a week comes to $20,800 a year, which is $5,400 less than the $26,200 federal poverty guide line for 2020.

On the other hand the living wage in the United States is $16.54 per hour, or $68,808 per year, in 2019, before taxes for a family of four (two working adults, two children). However, since our president is only interested in lining his pockets,he would not have been briefed on this fact.

I guess Trump agrees with his Republican fat cats: Keep the masses barefoot and pregnant and let them eat the crumbs thrown at them and expect them to thank him for all he has done for them.

Sandra Cordes, Stuart

Marlette(Photo: Marlette)

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Letters to the Editor: Aug. 21, 2020 - TCPalm