Former Ambassador and National Security Advisor John Bolton is hoping the First Amendment saves him from claims by the government that he violated his own nondisclosure agreements and should therefore be penalized for publishing his recent memoir about President Donald Trumps White House.

A 44-page motion to dismiss all claims against Bolton, filed by his attorneys late Thursday in Federal District Court in Washington, D.C., leans heavily of the right to speak freely about matters of political importance in its opening paragraphs and subsequent arguments.

Speech on a politically important and controversial topic is the essence of First Amendment expression, the motion begins. No form of speech is entitled to greater constitutional protection.

Boltons motion comes after a federal district court judge ruled in late June that Bolton could publish his book as a matter of First Amendment law but that Bolton had gambled with the national security of the United States, exposed his country to harm, and furthermore exposed himself to civil (and potentially criminal) liability. Bolton, with his book now for sale worldwide, argues he should face no liability at all. (Given the federal judges June rebuke of Bolton, which called Boltons tactics a gamble, some arent so sure these arguments will work.) Still, Boltons motion takes aim at the governments use of nondisclosure agreements to prevent officials from speaking about how public business is conducted.

When the Government erects a scheme designed to foreclose that speech even before it is uttered by imposing a prior restraint upon the communication of news and commentary on current events, it must shoulder a heavy burden of showing justification for the imposition of such a restraint, the document goes on to say (internal citations and punctuation omitted). And it has been settled since the Early Republic that the Government cannot escape First Amendment scrutiny by switching to the tactic of punishing core political speech after the fact.

That line is aimed at government claims that Bolton should be forced to forego royalties or even be punished criminally for publishing his book, The Room Where It Happened: A White House Memoir.

[A] law inflicting penalties on printed publications, would have a similar effect with a law authorizing a previous restraint on them, Boltons motion then says, quoting James Madison, the author of the First Amendment. It would seem a mockery to say, that no law should be passed, preventing publications from being made, but that laws might be passed for punishing them in case they should be made.

The Bolton motion invites the D.C. District Court to not forget these bedrock constitutional principles in evaluating the Governments attempt in this case to punish the Presidents former National Security Advisor, Defendant John R. Bolton, for publishing speech that is embarrassing to the President.

The Bolton motion invoked previous arguments that a nearly four-month pre-publication government review of Boltons book ferreted out classified information, that Bolton was free to publish, and that the Trump White House continued to assert that classified information existed in the book merely to prevent it from being published. To that end, Boltons motion asserts that neither of his own nondisclosure agreements imposes on a former government employee any obligationnone at allto submit for prepublication review:

The Governments claims are all foreclosed by the text of the very contractual documents upon which they purport to be based, since those contracts simply cannot reasonably be interpreted as imposing the contractual duty that the Government claims Ambassador Bolton breached: the duty to submit to prepublication review, and await written authorization before publishing, a book that he had no reason whatsoever to believe contained any classified material. And even if those contracts were susceptible to an interpretation imposing such a requirementin effect, a blanket prior restraint of virtually any speech by former government employeesthat requirement would be flatly contrary to the First Amendment. The Court thus labors under the solemn constitutional duty to avoid interpreting the contracts, if at all possible, as imposing such a blanket prior restraintand if such an interpretation is not possible, the even more solemn duty to invalidate that plainly unconstitutional requirement.

The motion concludes that even if the governments interpretations of Bolstons so-called Sensitive Compartmented Information Nondisclosure Agreement (SCI NDA) are true, they do not stand in the face of the First Amendment.

READ Boltons arguments in the document below:

John Bolton Motion to Dismiss by Law&Crime on Scribd

[photo by Win McNamee/Getty Images]

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John Bolton Gambles That Constitution Will Save Profits on Book That Was Embarrassing to the President - Law & Crime

from the what-public-discourse dept

The Second Circuit just issued an ugly decision in a defamation lawsuit against Joy Reid. It not only revived the case against her, but it greased the skids for many more defamation cases to be brought in federal court, including plenty even less meritorious.

The case, La Liberte v. Reid, involves two of Reid's social media posts from 2018. The first was from June 29:

At some point during the Council Meeting, La Liberte was photographed interacting with a fourteen-year-old teenager who appears to be (and is) Hispanic (the "Photograph"). The Photograph showed La Liberte with her mouth open and her hand at her throat in a gagging gesture. On June 28th, a social media activist named Alan Vargas tweeted the Photograph along with the following caption: "'You are going to be the first deported' [and] 'dirty Mexican' [w]ere some of the things they yelled they yelled [sic] at this 14 year old boy. He was defending immigrants at a rally and was shouted down. Spread this far and wide this woman needs to be put on blast." The Photograph went viral. The next day, Joy Reid, a personality on the MSNBC cable station, retweeted (i.e., shared) the Vargas tweet to her approximately 1.24 million followers. (La Liberte is not alleging defamation by Reid as to that communication.) Later that same day (June 29), Reid posted the Photograph on her Instagram with the following caption: "He showed up to a rally to defend immigrants . . . . She showed up too, in her MAGA hat, and screamed, 'You are going to be the first deported' . . . 'dirty Mexican!' He is 14 years old. She is an adult. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, yall. It hasnt even really gone away." [p.6-7]

The second was from July 1:

Two days later (July 1), Reid published another post about La Liberte, this time on Instagram and Facebook. This post juxtaposed the Photograph of La Liberte with the 1957 photograph showing one of the Little Rock Nine walking past a screaming white woman. Reid added the following caption: "It was inevitable that this [juxtaposition] would be made. It's also easy to look at old black and white photos and think: I can't believe that person screaming at a child, with their face twisted in rage, is real. By [sic] every one of them were. History sometimes repeats. And it is full of rage. Hat tip to @joseiswriting. #regram #history #chooselove" [p. 7-8]

Subsequently, further media coverage revealed that the plaintiff had not been the source of the cited racist comments. [p. 7] On July 2 the plaintiff contacted Reid to ask that she delete the posts and apologize, which Reid did later that day. [p. 8]. Despite her doing so, the plaintiff sued anyway, but the district court in EDNY then dismissed it.

The Second Circuit has now stepped in to revive the case, and in doing so opened the door not only to this troublingly weak case but plenty of others even weaker.

There are a number of issues with the decision:

Section 230 became an issue because Reid had raised it as a defense for her June 29 posting of the picture on Instagram with her caption (although not her July 1 post on Instagram and Facebook). The district court rejected that defense, and the Second Circuit agreed with that rejection. But whereas it mattered less in the district court because it had found other reasons to dismiss the case against Reid, because the Second Circuit kept the case alive, it doing so also on Section 230 grounds raises more concerns (plus, it is an appeals court, so its decision will reverberate more into the future).

In denying her the statute's protection the court did get the basic rules right: only the party that created the offending expression can be held liable for it. Furthermore, citing earlier Circuit precedent, "a defendant will not be considered to have developed third-party content unless the defendant directly and 'materially' contributed to what made the content itself 'unlawful.'" [p. 22]. But in denying her the protection it applied these rules in a way that may expose myriad other social media posters - and even platforms themselves - to litigation in the future, and in a way that Section 230 should really forestall.

Reid was ostensibly only being sued for the commentary that she added to her re-posts of the original picture, and not the photographer's original tweet. Had it been the latter, Section 230 would have more clearly applied. Asserting it for her own speech is an aggressive argument, but not a ridiculous one. It's also not one that the court dismissed out of hand. As that prior precedent made clear, liability for speech hinges on who imbued the speech with its allegedly wrongful quality. Reid argued that it wasn't her: The original post had been of a picture of the plaintiff seemingly shouting threateningly at a Latino boy, and included a caption indicating that this picture was captured at an event where racist invective was shouted at him. Thus it was reasonable to take the original post as the statement that La Liberte was one of the people doing that shouting. Unfortunately that statement turned out to be wrong, but Reid repeating that statement in her own words was not what introduced the wrongfulness. Therefore she was not actually the "information content provider" with respect to this message, and Section 230 should have applied.

The trouble is, in the court's view, she had been the one to imbue the message with its wrongful quality. What might have made this case a close call was that the original post had only included an unspecific "they" in reference to the shouters, whereas Reid had attributed it to the plaintiff by name. However that attribution had already been made in the original post not by her name, true, but by her picture. Thus Reid did not introduce anything new to the overall expression. Indeed, that she believed, albeit erroneously, that the plaintiff had screamed the invective at the boy was because that was the message the original post had conveyed. It may have been an erroneous message, but she was not the one who originated it.

The problem with now finding her the "information content provider" in this situation is that it reads into Section 230 a duty of care that does not exist in the statutory language, requiring people who share others' expression to make some sort of investigation into the veracity of that expression. While it might be good if people did we certainly would like for people sharing things on social media to be careful about what they were sharing Section 230 exists because it is hard to get intermediation of expression right, and we risk choking off speech if we make it legally risky to get wrong. (See what happened to Reid, where even if she had been wrong about the significance of the underlying tweet, it was a reasonable error to make.)

Worse, not only would it chill social media sharing, but this decision is unlikely to stay tightly cabined to that sort of intermediation of others' expression. If it were the rule that you had to vet the expression you allowed to be shared before you could be safe from sharing other people's expression, then Section 230 could almost never apply and *everyone* would be vulnerable to being sued over the expression they intermediate, since no matter how much care they took since they'd still have to defend those efforts in court. Such a rule would represent a profound shift in how Section 230 works, which up to now has not been conditional. Twenty-plus years of jurisprudence has made clear that Section 230 protection is not contingent on the intermediary vetting the expression produced by third parties that it helps share, and this decision undermines that clarity. And not just for social media users, but the platforms they use as well.

Ultimately, if Section 230 can apply to individuals sharing others' social media posts (prior precedent supports that conclusion, and this court accepted it as well [see footnote 8]) and if it can apply to original, summarizing content (as this court also accepted), then there's no principled reason it should not have applied here.

Limited-purpose public figures

Denying Section 230 protection is only the tip of the iceberg. Not only does it make people who share on social media vulnerable to being sued, but other aspects of the decision make it more likely that it is litigation they will lose.

The court's refusal to find that the plaintiff was a limited purpose public figure is one of these aspects. Because open discourse about matters of public concern is a value the First Amendment exists to protect, the Supreme Court has developed the concept of the "public figure" to help ensure that it is. A public figure is someone whose fame has so intertwined them in matters of public interest that they must plead "actual malice," a fairly exacting standard, on the part of a speaker in order to prevail on a claim that the speaker defamed them.

Here, no one argued that the plaintiff was a general purpose public figure. But there are also "limited-purpose public figures." These are people who are not inherently intertwined in matters of public interest but who may insert themselves in matters that are and thus become public figures within the context of that matter. In such cases they would also need to plead actual malice in any defamation lawsuit where there had been commentary about them in this context.

Reid argued that the plaintiff was a limited purpose public figure. In particular, she regularly appeared at council meetings about the immigration issue and had been visibly, and publicly, vocal on the subject. The court rejected the contention:

That is not nearly enough. [T]he district court did not take into account the requirement that a limited purpose public figure maintain "regular and continuing access to the media." One reason for imposing the actual malice burden on public figures and limited purpose public figures is that "[t]hey have media access enabling them to effectively defend their reputations in the public arena." We have therefore made "regular and continuing access to the media" an element in our four-part test for determining whether someone is a limited purpose public figure. [p. 24-25]

Per the court, "La Liberte plainly lacked such media access." [p. 25].

The earlier photograph, which showed her conversing, was in a Washington Post photo spread of attendees at an SB 54 protest. The article did not name La Liberte, let alone mention her views. The single caption described everyone depicted as [s]upporters and opponents of [SB 54] rally[ing] and debat[ing] outside Los Alamitos City Hall. Such incidental and anonymous treatment hardly bespeaks regular and continuing access to the media. [p. 25]

Furthermore:

Nor does La Libertes participation at city council meetings. La Liberte is said to have testif[ied] eight times around the state (Appellees Br. at 26 (citing App. at 102-05)); but Reid does not identify instances in which the media singled out La Libertes participation as newsworthy. Nor does speech, even a lot of it, make a citizen (or non-citizen) fair game for attack. Imposition of the actual malice requirement on people who speak out at government meetings would chill public participation in politics and community dialogue. [p. 26]

The problem with this analysis is that it better applies to why a person engaging in civic affairs does not become a full-fledged public figure, where every aspect of their life can be a matter of public interest. It misses the significance of why we have the limited purpose public figure doctrine in the first place, which is that in the context of a specific matter of public concern a person's behavior can become a matter of public interest. Here the plaintiff had concertedly inserted herself into a matter of public concern the policymaking surrounding immigration - on a "regular and continuing" and conspicuously public basis. The court's ruling puts that public behavior beyond the reach of effective public comment by treating it as if it were private and thus lowering the standard of what the plaintiff would have to plead to support a defamation claim.

State anti-SLAPP in federal court

The decision also reaches an unfortunate conclusion we've taken issue with before: disallowing state anti-SLAPP laws in cases that end up in federal court via diversity jurisdiction. It's a conclusion that seems to reflect dubious constitutional analysis, is bad policy, and in this case, conflicts with Ninth Circuit precedent.

As we explained before:

Diversity jurisdiction arises when the parties in the litigation are from separate states and the amount in controversy is more than $75,000 and the issue in dispute is solely a question of state law. Federal courts ordinarily can't hear cases that only involve state law, but because of the concern that it could be unfair for an out-of-state litigant to have to be heard in a foreign state court, diversity jurisdiction can allow a case that would have been heard in state court to be heard by the federal one for the area instead.

At the same time, we don't want it to be unfair for the other party to now have to litigate in federal court if being there means it would lose some of the protection of local state law. We also don't want litigants to be too eager to get into federal court if being there could confer an advantage they would not have had if the case were instead being heard in state court. These two policy goals underpin what is commonly known as the "Erie doctrine," named after a 1938 US Supreme Court case that is still followed today.

The first problem with the Second Circuit's decision is that it does not even *mention* the Erie doctrine instead it just dives right into a procedural rules' analysis. [p. 13]. The second problem is that its decision directly conflicts with Ninth Circuit precedent that applied Erie to find that California's anti-SLAPP law indeed applied in federal diversity occasions. In other words, the Second Circuit has just reached across the country and into the Ninth Circuit to snatch away the protection of a law that the Ninth Circuit already had assured Californians that they had.

The third problem is that it is bad policy because it would encourage forum-shopping, which is normally discouraged. As the Ninth Circuit articulated in that case, US Ex Rel. Newsham v. Lockheed Missiles & Space Co.:

[I]f the anti-SLAPP provisions are held not to apply in federal court, a litigant interested in bringing meritless SLAPP claims would have a significant incentive to shop for a federal forum. Conversely, a litigant otherwise entitled to the protections of the Anti-SLAPP statute would find considerable disadvantage in a federal proceeding.

The Second Circuit appeared indifferent to these concerns:

Finally, amici warn that refusal to apply the anti-SLAPP statute will encourage forum shopping and lead to an increased burden on federal courts in this Circuit. (Amici Br. at 11.) That may be so; but our answer to a legal question does not turn on our workload; and in any event, the incentive to forum-shop created by a circuit split can be fixed, though not here. [p. 16]

The concern about forum-shopping is not that it will overburden federal courts; the concern the is manifest unfairness to defendants that will arise when they suddenly lose the benefit of the the substantive protections for speech California gave them and upon which they may have depended on to speak because an out-of-state litigant was able haul them into federal court.

Mootness

It is also not clear why the Second Circuit even reached the anti-SLAPP question. If its public figure analysis was correct, the defense would be unlikely to be able to even use it, because by that logic the expression at issue would have failed to meet the anti-SLAPP law's requirement that it be about a matter of "public issue." Thus there was no need for this court to ever reach the anti-SLAPP question, and yet it chose to opine on it first, before even reaching the Section 230 and then the public figure discussions. But because after those latter two analyses there was no reason to reach the anti-SLAPP discussion, and it raises the question of whether at this point it was even a ripe enough issue for the court to have had appellate jurisdiction over. But even if it did, doctrines of judicial restraint should have precluded deciding the issue and creating a mess that speakers who thought they were protected will now have to contend with.

Filed Under: 2nd circuit, anti-slapp, defamation, joy reid, la liberte, public figure, retweets, section 230

Link:

Second Circuit Wrecks All Sorts Of First Amendment Protections To Keep Lawsuit Against Joy Reid Alive - Techdirt

In December 2018, the Potsdam Village Board of Trustees passed a junk storage law to address issues of unsightly items left out in public.

The new local law requires that items that could be categorized as junk cannot be in sight of people traveling the public highways, streets or thoroughfares of the village, according to the law, according to a story published Dec. 4, 2018, in the Watertown Daily Times. In a statement on the purpose of the measure, the village Board of Trustees wrote that having visible junk on front lawn is detrimental to the health, safety and general welfare of the community. The board also claimed that junk posed an attractive nuisance to children and may imperil their safety and that junk depreciates the value of property upon which junk is found as well as neighboring properties.

Trustees said this law was not an attempt to target parcels of land owned by Frederick J. Robar Sr.; they just believed some folks needed to tidy up around their homes. However, its difficult taking this claim seriously.

Since 2004, Mr. Robar has displayed what he calls toilet gardens. Its no secret that village officials dont hold their constituents artistic sentiments in high esteem, and the junk storage law was the latest mechanism implemented to compel him to clean up his sites.

Mr. Robar popped onto the villages radar in 2004 when he asked to get a zone change at his property on 82-84 Market St. so he could sell it to a buyer who would put in a Dunkin Donuts. When the village denied his request, he set up what is referred to now as a toilet garden. Since then, he and the village have butted heads twice inconclusively and unsuccessfully in the village court system, a June 30 article in the Times reported. In 2008, the village issued Mr. Robar an appearance ticket for a code violation. Mr. Robar argued that the toilet gardens are art and its his First Amendment right to have them. The case was dismissed because code enforcement officer John F. Hill failed to bring documents to the court. In 2010 the village tried again, but after the presiding judge resigned amid cocaine-use allegations, the case was dropped and the village decided not to pursue it.

Representatives of Clarkson University, the St. Lawrence Health System and Temple Beth El spoke out against Mr. Robars gardens. There likely arent too many people who enjoy viewing rows of toilets on adjacent property.

But Mr. Robars attorney, Mark Snider, said the law was created to punish his client after the fact. This would violate his constitutional rights, Mr. Snider said.

The village has so far been unable to force Mr. Robar to dismantle the gardens. This unconventional artist has maintained his landscape scenery through a court of law if not the court of public opinion. Officials are scheduled to discuss the matter Monday.

But for Potsdam to pursue this further may be flushing good tax dollars down the well, you know. This could end up being an expensive legal battle for the village with nothing in the end being changed.

The junk storage law does not apply to Mr. Robars properties. Hes not merely dumping unused bathroom fixtures outside his home because he doesnt know what else to do with them. He placed the toilets there as a personal expression, an act clearly protected by the First Amendment.

Village officials may not appreciate his artistic objective, but thats irrelevant. Its not their job to define what constitutes free speech the U.S. Constitution already does that.

Potsdam authorities are violating Mr. Robars rights by mandating he adhere to their idea of an acceptable visual presentation, and they need to stop their campaign against him.

Go here to see the original:

Editorial A flushtrated community: Potsdam trampling on First Amendment rights of toilet artist - NNY360

3News Legal Analyst Stephanie Haney breaks down what the states can and can't do when it comes to restricting display of the Confederate flag

CLEVELAND Legal Analysis:Right now, people are calling for government officials and private organizations to ban the display of the Confederate flag because of its tie to slavery, but those two groups aren't created equal when it comes to who can make that happen.

People are asking these groups to prohibit the display and sale of the symbol in what we think of as public places, like county fairs.

Here in Ohio, there was even a bill proposed in the House of Representatives to do it. That bill didn't pass, but if it had, the results would have been questionable, because display of the Confederate flag is considered a form a speech.

Our freedom of speech is protected under the First Amendment of the U.S. Constitution, which reads in part:

"Congress shall make no law ... abridging the freedom of speech, or of the press."

The start of that sentence is the important part, because the First Amendment protects our speech from Congress, also known as "the government" or "the state."

Legally speaking, our county fairs can do whatever they want when it comes to banning the Confederate flag, because theyre not run by the government.

The First Amendment only stops the government from restricting our speech, except for in certain cases.

Exceptions that are not protected include when someone says something thats meant to provoke someone to break the law (also referred to as speech that is intended and likely to lead to "imminent lawless action"), speech used to intimidate, or legitimately threaten someone else.

You may be surprised to know that both hate speech, and speech that promotes the idea of violence are protected from being restricted by the state.

The government can limit where and when speech is expressed, but it has to be across the board (or "content neutral"), because restricting only a specific point of view is unconstitutional.

The closing speech in the 1995 film, "The American President," sums it up well, delivered by the character of President Andrew Shepherd, played by Michael Douglas.

"You want free speech?" he asks of the crowd in the press briefing room and the fictional Americans watching at home.

"Lets see you acknowledge a man whose words make your blood boil, whos standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours."

Then the character brings up another controversial topic when it comes to free speech and flags.

"You want to claim this land as the land of the free?"he asks.

"Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the land of the free."

To sum it up, if only popular ideas were protected, we wouldnt need the first amendment.

Stephanie Haney is licensed to practice law in both Ohio and California.

The information in this article is provided for general informational purposes only. None of the information in this article is offered, nor should it be construed, as legal advice on any matter.

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Watch | Can states ban the display of the Confederate flag? in 'Legally Speaking' - WKYC.com

I disagree with what you say but will defend to the death your right to say it. Voltaire (1694-1778)

When Thomas Jefferson wrote the Declaration of Independence, he included in it a list of the colonists grievances with the British government. Notably absent were any complaints that the British government infringed upon the freedom of speech.

In those days, speech was as acerbic as it is today. If words were aimed at Parliament, all words were lawful. If they were aimed directly and personally at the king as Jeffersons were in the Declaration they constituted treason.

Needless to say, Jefferson and the 55 others who signed the Declaration would all have been hanged for treasonous speech had the British prevailed.

Of course, the colonists won the war, and, six years afterward, the 13 states ratified the Constitution. Two years after ratification, the Constitution was amended by adding the Bill of Rights. The first ratified amendment prohibited Congress from doing what the colonists never seriously complained about the British government doing infringing upon the freedom of speech.

James Madison, who drafted the Bill of Rights, insisted upon referring to speech as the freedom of speech, so as to emphasize that it preexisted the government. If you could have asked Madison where he believed the freedom of speech came from, hed have said it was one of the inalienable rights Jefferson wrote about in the Declaration.

Stated differently, each of the signatories of the Declaration and ratifiers of the Bill of Rights manifested in writing their unambiguous belief that the freedom of speech is a natural right personal to every human. It does not come from the government. It comes from within us. It cannot be taken away by legislation or executive command.

Yet, a mere seven years later, during the presidency of John Adams, Congress enacted the Alien and Sedition Acts, which punished speech critical of the government.

So, how could the same generation in some cases the same human beings that prohibited congressional infringement upon speech have enacted a statute that punished speech?

To some of the framers the Federalists who wanted a big government as we have today infringing upon the freedom of speech meant silencing it before it was uttered. Today, this is called prior restraint, and the Supreme Court has essentially outlawed it.

To the antifederalists or Democratic-Republicans, as they called themselves the First Amendment prohibited Congress from interfering with or punishing any speech.

Adams Department of Justice indicted and prosecuted and convicted antifederalists among them a congressman for their critical speech.

When Jefferson won the presidency and the antifederalists won control of Congress, the Federalists repealed the speech suppression parts of the Alien and Sedition Acts on the eve of their departure from congressional control, lest it be used against them.

During the Civil War, President Abraham Lincoln locked up hundreds of journalists in the North who were critical of his war efforts. During World War I, President Woodrow Wilson whom my alma mater Princeton University is trying to erase from its memory arrested folks for reading the Declaration of Independence aloud or singing German beer hall songs.

Lincoln argued that preserving the Union was more important than preserving the First Amendment, and Wilson argued that the First Amendment only restrained Congress, not the president. Both arguments have since been rejected by the courts.

In the 1950s, the feds successfully prosecuted Cold War dissenters on the theory that their speech was dangerous and might have a tendency to violence. Some of the victims of this torturous rationale died in prison.

The governments respect for speech has waxed and waned. It is at its lowest ebb during wartime. Of course, dissent during wartime which challenges the governments use of force to kill is often the most important and timely speech.

It was not until 1969, in a case called Brandenburg v. Ohio, that the Supreme Court gave us a modern definition of the freedom of speech. Brandenburg harangued a crowd in Hamilton County, Ohio, and urged them to march to Washington and take back the federal government from Blacks and Jews, whom he argued were in control. He was convicted in an Ohio state court of criminal syndicalism basically, the use of speech to arouse others to violence.

The Supreme Court unanimously reversed his conviction and held that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to rebut it. The same Supreme Court had just ruled in Times v. Sullivan that the whole purpose of the First Amendment is to encourage and protect open, wide, robust, even caustic and unbridled speech.

The speech we love needs no protection. The speech we hate does. The government has no authority to evaluate speech. As the framers understood, all persons have a natural right to think as we wish and to say and publish whatever we think. Even hateful, hurtful and harmful speech is protected speech.

Yet, in perilous times like the present, we have seen efforts to use the courts to block the publication of unflattering books. We have seen state governors use the police to protect gatherings of protesters with whose message they agreed and to disburse critical protesters. We have seen mobs silence speakers while the police did nothing.

Punishing speech is the most dangerous business because there will be no end to it. The remedy for hateful or threatening speech is not silence or punishments; it is more speech speech that challenges the speaker.

Why do folks in government want to silence their opponents? They fear an undermining of their power. The dissenters might make more appealing arguments than they do. St. Augustine taught that nearly all in government want to tell others how to live.

How about we all say whatever we want and the government leaves us alone?

View original post here:

Napolitano: A brief history of the freedom of speech in America - Daily Herald

After successfully representing a journalist in his fight for corporate compliance records, the Reporters Committee recently secured a settlement for attorneys fees from the U.S. Justice Department.

The May settlement brought closure to a five-year public records battle between the agency and reporter Dylan Tokar over the journalists efforts to shed light on the process by which government officials evaluate and appoint attorneys to serve as corporate watchdogs.

Five years ago, Tokar, who now covers corporate compliance and white-collar crime for The Wall Street Journal, sought records related to a federal oversight program that monitors companies alleged to have violated the Foreign Corrupt Practices Act.

The federal law prohibits American firms from bribing members of foreign governments to advance their business interests. Firms investigated for potentially violating the law can skirt criminal conviction by entering into a Deferred Prosecution Agreement, in which the firm agrees to pay for an independent monitor, appointed by the Justice Department, to investigate its practices for a set period of time.

Because these independent monitors often white-collar defense attorneys oversee companies for long periods of time, the positions are attractive to large law firms, as they bring in long-term, lucrative work. But the quiet interplay between top officials in the federal government and the small nexus of corporate attorneys likely to vy for these positions has raised concerns about potential conflicts of interest.

And despite internal Justice Department guidelines meant to ensure a proper appointment process for monitors, questions about the role of the defendant corporation in the selection process have only added to concerns about the selection process integrity.

Tokars search for the Justice Department records sought to answer the central question of whether the agency has followed its guidelines to ensure a fair selection process for corporate monitorships. Among other revelations, Tokars reporting showed that the memos rules created a more rigorous selection process, but it did little to diversify the pool of candidates the Justice Department considered for the roles.

Diversity in the white collar bar is not great, but within the small cohort of lawyers who have served as FCPA monitors it is even worse, Tokar said. The information we obtained allowed us to raise questions about that lack of diversity, and to better hold the DOJ accountable for it.

Between 2004 and the summer of 2018, according to documents Reporters Committee attorneys helped Tokar obtain, the Justice Department selected 48 corporate monitors; only three were women and three were men of color. No women of color were chosen, records show.

These records shed light on a selection process that is shrouded in secrecy and that raise questions about potential conflicts of interest in the Justice Department, said Jennifer Nelson, the Reporters Committee staff attorney who litigated the case with assistance from the First Amendment Clinic at the University of Virginia Law School. The significant public interest in this information far outweighs any privacy concerns that white-collar corporate lawyers considered for these lucrative monitorships might have.

Tokar was a reporter for the trade publication Just Anti-Corruption when he filed two FOIA requests in 2015 seeking documents related to the selection process for corporate monitors, as well as any letters that objected to the release of such information. When the Justice Department failed to respond to his requests, Tokar filed his lawsuit in the U.S. District Court for the District of Columbia in December 2016.

While preparing its defense, the Justice Department produced for Tokar a chart, including some of the information he requested in his FOIA request, but with key information withheld. Tokar would later declare that he noted multiple errors in the chart.

When the Justice Department filed its summary judgment motion in the summer of 2017, it argued that it properly withheld private information, including the names of law firms that nominees for corporate monitorships worked for, as well as the names of the attorneys who were nominated for, but ultimately did not receive, corporate monitor positions. When making this argument, the agency relied on a 1984 case, Core v. U.S. Postal Service, in which a federal appellate court allowed the government to withhold the employment details of unsuccessful applicants for a postal service job. The public disclosure of the applicants job search, the court reasoned at the time, could prove detrimental, as it could alert workers present employers that they are seeking new jobs.

In response, Reporters Committee attorneys argued on Tokars behalf that unsuccessful nominees for corporate monitorships do not have the same privacy interests at stake that the postal workers did in the 1984 case, especially considering an overwhelming public interest in the question of whether the government acts with integrity, particularly when it runs agency programs that are alternatives to the judicial system. The accomplished corporate attorneys considered for corporate monitorships are not job applicants in the traditional sense of the term, the brief explains. Rather, they are members of law firms working on a number of cases at one time.

In fact, being nominated for multiple high-profile monitorships is likely to advance their careers and reputations, even when they are not ultimately selected for a position, Reporters Committee attorneys argued in the motion for summary judgment. Revealing their names simply does not implicate the same issues presented by the disclosure of information about unsuccessful job applicants who may have an interest in preventing their current employers from learning that they wanted to leave their jobs and had sought employment elsewhere.

The D.C. District Court ruled in March 2018 that the Justice Department was not allowed to redact the information it withheld on the basis of its Postal Service privacy argument, and that the agency was also wrong to have produced a bare-bones chart when it should have turned over the documents that Tokar requested.

Another round of filings followed in 2019. That year, on behalf of Tokar, Reporters Committee attorneys contested many of the remaining privacy-related redactions the Justice Department kept in the documents, despite the courts opinion in 2018. At the Courts urging, the organization negotiated the remaining redaction issues outside of the courtroom.

Faced with the relentless pace of the news cycle, it can feel like an exercise in futility to pursue a FOIA for information you might not obtain for years to come, Tokar said. I cant thank the RCFP enough for their willingness to take up that cause on behalf of reporters at news organizations that arent able to do it themselves.

The Reporters Committee has received the settlement fee and moved to dismiss the case.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

Photo by Tony Webster

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wraps up 5-year FOIA battle with Justice Department - Reporters Committee for Freedom of the Press

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.

The First Amendment to the US Constitution

Donald J. Pickard has made the right call.

Reacting to a concern raised by a voter in Bourne, Mr. Pickard, who is the town moderator, has decided to drop the invocation at the start of Town Meeting.

Mr. Pickard said he understands that his decision will upset a number of people in town.

However, I believe it is more important that we do not offend anyone and their specific religious beliefs by providing an invocation that is perceived as Christianized, he said.

The First Amendment to the Constitution is usually mentioned in connection with freedom of speech or of the press.

But if you look even moderately closely at the wording of the amendment, youll see that theres more in there.

Besides freedom of speech and the press, the amendment also brings in the right to assemble peaceably and to petition the government for a redress of their grievancesa right brought home recently in the widespread and justified protests over the death of a Minneapolis man, George Floyd, while in police custody.

But the very first line of the First Amendment concerns religion: that Congress will not make any law respecting a particular religion or prohibiting the exercise of any religion.

The line was and remains a masterstroke. In 16 words, the Founders took religion off the table. Aware of then-recent European history, when religious wars had devastated the European continent from which they came, the Founders set the entire issue aside.

You can practice whatever religion you want, the First Amendment says, but dont expect that the government will elevate your religion over another or provide you with any special favors.

America essentially has hewed to that idea ever since.

Certainly there was fuzziness around the edges. The Founders were, for the most part, practicing Christians, nearly all of them Protestant. The Christian God was woven into their lives and into their ideals.

So you do have some seepage, such as the phrase In God We Trust or the eye atop the pyramid on American currency.

And, human nature being what it is, religious tensions didnt disappear from the United Statesanything but.

The Roman Catholics, who were fellow Christians, were hardly greeted with open arms by Protestants as they immigrated in increasing numbers into the United States.

The Jews encountered the same discrimination as they arrived on these shores from Protestants and Catholics alike.

In recent decades, Muslim immigrants have run into resistance from Americans who already were here, regardless of whether those Americans practiced any religion themselves.

Leaving aside religious bigotry and discrimination that continue to be practiced by some American citizens, theres the issue of the intrusion of religious, usually Christian, words and practices into what should be secular proceedings and matters.

Flash points in recent decades have included what had been the longtime presence of creches at Christmastime on public land outside town halls and the like.

And prayer in public schools was outlawed only about six decades ago.

Its true that sessions of Congress are opened with a prayer. But in light of a true reading of the First Amendment, the practice is questionable.

Here in Bourne, the issue has properly arisen over the invocation that opens Town Meeting.

A Bourne voter, Robert Zibbell, questioned the Christian nature of the invocation that opened last years Fall Town Meeting. The selectmen told Mr. Zibbell that they would take action to make certain that invocations in the future would be nondenominational in nature.

Along comes last months Annual Town Meetingand a Christian-infused invocation.

Mr. Zibbell again objected, properly. In response, the chairwoman of the board of selectmen, Judith Froman, said communication had fallen down regarding the selectmens decision on the issue last fall.

The town moderator, Mr. Pickard, subsequently decided to drop the invocation entirely for the reason stated above.

Elsewhere on this page, Mr. Zibbell makes the case in a letter to the editor to keep the invocation but to make certain the words are more inclusive and not favoring one religious belief or another.

But any invocation as an official part of a government proceeding is going to violate the First Amendment, even a Town Meeting in a relatively small New England municipality.

On a human level, put yourself in the shoes of someone who doesnt believe in a deity, nondenominational or not. Why should you have to listen to a statement espousing a deity-based message?

This doesnt mean that voters going to Town Meeting should be prohibited from praying. Indeed, they should feel free to pray if they wish to do so.

Exercising their First Amendment rights, they can pray out loud with fellow believers before Town Meeting starts. They can pray silently during the moment of silence just before the meeting, which Mr. Pickard plans to retain. They also can pray silently during some of the lengthy debates that characterize Bourne Town Meetingan understandable reaction in more than a few cases.

But an official prayer from the podium to launch the meeting is, as the expression goes, a bridge too far.

Rather than insist on publicly sponsored words, why not follow the core beliefs of so much spirituality present and active in the United Stateswhether Christian, Jewish, Muslim, Buddhist or otherand make a point of speaking kindly at Town Meeting, of listening closely, of not judging others by their appearance, of resolving to better understand and appreciate the views and thoughts of others?

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The Right Call On The Invocation - Editorial | Editorials - CapeNews.net