Daily Archives: January 19, 2022

From Zhou v. Breed, decided Friday by the Ninth Circuit (Judges John Owens and Michelle Friedland, and visiting Sixth Circuit Judge Danny Boggs):

Appellants allege that both [S.F. Mayor London] Breed and Clear Channel violated their First Amendment right to free speech. To the extent that Appellants argue that Breed, or any public official, violated their First Amendment rights simply by speaking critically of a billboard or calling for its removal, that theory is squarely foreclosed by precedent.

We have previously joined a "host of other circuits" in holding that "public officials may criticize practices that they would have no constitutional ability to regulate, so long as there is no actual or threatened imposition of government power or sanction." Am. Fam. Ass'n, Inc. v. City & County of San Francisco (9th Cir. 2002); see also id. ("[L]etters which encouraged but did not threaten or intimidate landowner to terminate lease with billboard owner did not violate billboard owner's First Amendment rights." (citing R.C. Maxwell Co. v. Borough of New Hope (3d Cir. 1984))). Appellants have not alleged that, in criticizing one of Appellants' billboards, Breed or any public official made any threats of government sanction against Zhou, AAFPAC, Clear Channel, Outfront Media, Inc. , or anyone.

Appellants' argument that their First Amendment rights were violated when Clear Channel, a private company, removed one of their billboards also fails. "A threshold requirement of any constitutional claim is the presence of state action." We "start with the presumption that private conduct does not constitute governmental action." Appellants do not allege any facts or put forward any plausible legal theory that would support treating Clear Channel as a state actor in this case.

The mere fact that Breed or other public officials criticized a billboard or called for its removal, without coercion or threat of government sanction, does not make that billboard's subsequent removal by a private party state action. See also Am. Mfrs. Mut. Ins. Co. v. Sullivan (1999) ("Action taken by private entities with the mere approval or acquiescence of the State is not state action."). Nor does the fact that companies that own billboards might be subject to some government regulations convert Clear Channel's decision to take down the billboard following public officials' criticism into state action. See Manhattan Cmty. Access Corp. v. Halleck (2019) ("Put simply, being regulated by the State does not make one a state actor."); Mathis v. Pac. Gas & Elec. Co. (9th Cir. 1989) ("[T]hat PG & E is a public utility subject to extensive state regulation without more, is insufficient to infuse its conduct with state action."). Because Appellants have failed to allege state action, the district court properly dismissed their First Amendment claim.

{Appellants argue that, even if their allegations could not support a coercion theory of state action or a regulation theory of state action when those theories are analyzed separately, their allegations could support a finding of state action if those theories were analyzed together. That argument also fails.}

The district court correctly struck, pursuant to California's anti-SLAPP statute, Appellants' claims against Breed for inducing breach of contract and intentional interference with a contractual relationship.

Appellants do not have a sufficient legal basis for either of their tort claims asserted against Breed. To succeed on their claim for inducing a breach of contract, Appellants must show that a contract "was in fact breached." Because Appellants cannot show that Clear Channel breached its contract [given that the contract allowed Clear Channel to terminate it], Appellants' claim against Breed for inducing a breach of contract necessarily fails.

To succeed on their claim for intentional interference with a contractual relationship, Appellants must show that Breed knew of Appellants' billboard contracts and that she engaged in "intentional acts designed to induce a breach or disruption of the contractual relationship." Other than threadbare recitals of some of the elements of this cause of action, Appellants do not allege that Breed knew of their contracts with Clear Channel or Outfront, or that any of Breed's actions were intentionally designed to disrupt Appellants' contractual relationships with those companies. Indeed, the only specific action Appellants allege that Breed took was speaking critically about one of the billboards during a television interview. It is not possible to infer from that allegation that Breed's aim was to interfere with any of Appellants' contractual relationships. Consequently, Appellants failed to satisfy their burden of showing a sufficient probability of success on the merits of their tort claims against Breed, and those claims were properly struck.

The state action analysis is indeed consistent with the circuit court precedents (see this post). The interference with contract analysis strikes me as odd: Surely someone criticizing a billboard must be aware that the billboard was up under a contract, and it at least seems plausible that criticizing a billboard is intended to cause a "disruption" of a contractual relationship (even if not a breach), by being intended to urge the billboard company to remove it. Nonetheless, the claim should fail for another reason: Under California law, intentional interference with business relations (short of intentional inducement of an actual breach) is generally actionable only if it's otherwise unlawful (e.g., involves a threat of violence or some other illegal conduct).

Here's the factual backstory about the content of the billboards, from the decision below, though the content isn't legally relevant:

October 2019, plaintiffs Ellen Lee Zhou and the Asian American Freedom Political Action Committee ("AAFPAC") (collectively, "plaintiffs") posted two billboard advertisements in support of Zhou's campaign for mayor of the City and County of San Francisco.

One of AAFPAC's billboards showed Breed driving a red bus with the text "Werewolves of London Tours" near cars with smashed windows. Additional text read, "Vote Nov. 5 for Super Mayor Ellen Lee Zhou!"

Clear Channel and OutFront posted the billboards in October 2019. Soon after, Breed and her allies "began a concerted effort" to pressure Clear Channel and OutFront to remove the billboards by denouncing them as offensive, racist, and divisive. Breed's campaign publicized an October 21, 2019 press conference in front of the OutFront billboard, although Breed did not attend it. Those present, including State Assemblyman David Chiu and members of the Board of Supervisors, denounced the content of the billboard and called for its removal. News outlets reported various individuals describing the contents of the billboard as racist, misogynistic, and sexist, and opining that it had no place in San Francisco. Breed gave a media interview in which she said, "'[The billboard] is hurtful, it's disrespectful and it is no place [sic], I think in San Francisco for that kind of divisiveness.'"

See the article here:
No First Amendment Violation in Removal of Billboard After SF Mayor Had Criticized It - Reason

To the editor: This is in reference to Mike Mrowicki's commentary in the Brattleboro Reformer, dated Dec. 24-25, "Rights and responsibilities are inseparable."

Should you meet as a legislator governing body in Montpelier with the COVID in its present conditions, and may get worse in the months ahead? I say yes. You all should meet as if nothing is wrong. Why? First Amendment rights. A small amount of the population (the unvaccinated), wants their right not to have a shot of any kind. That's their right. What about yours? Do you have First Amendments rights, to be safe from danger that might kill you? The answer is yes. To solve this problem, you do not take away their rights to enter the Capitol buildings, you put rules in that must be kept by everyone that enters the buildings, that you have in place, even today, such as (1) you must wear a shirt; (2) you must wear shoes; (3) you do not carry or wear a gun'; (4) you do not disrupt this place of business at any time maybe even more rules that I cannot think of at this time. These rules, are they against your First Amendment rights? You see this in many stores of business, banks, etc., before you enter their business. Do they enter? No.

What about your rules, life and pursuit of happiness and safety? You elected leaders up north should add one more rule that all must live by, which is your First Amendment right: "Every one that enters any Capitol building must be vaccinated, for their protection from us, and us from you." After all, shouldn't you be protected from the "nonbeliever"? Don't worry about votes; 82 percent of the Vermont voters have received their shots. Someone must be right. Why do we all have to bow down to the minority? Stand up, be counted as a believer of the vaccination. Protect us. Get your shot.

Fred Yates

Westminster, Dec. 27

Read more here:
Letter: Stand up for your First Amendment right as a believer of vaccination - Brattleboro Reformer

(NewsNation Now) The Boston police sergeant who is leading a protest against the citys vaccine mandate says that if fellow protestors called the citys mayor Hitler, then its their First Amendment right to do so.

When Marni Hughes, who was filling in for Joe Donlon, asked if Shana Cottone condoned that rhetoric from people she protests with, Cottone said she didnt hear those chants herself but wouldnt deny they happened.

We cant control peoples speech, Cottone said on NewsNations The Donlon Report on Monday. It may be ugly speech, but that is their their First Amendment right.

Cottone has gained attention for a video posted on YouTube in which she berates fellow Boston officers who are trying to enforce the vaccine mandate as she and a group of other women ate and drank at a restaurant after a protest.

She calls the officers a disgrace in the video.

On The Donlon Report, she accused Mayor Michelle Yu of going back on her word about how the mandate would be enforced.

The mayor said, Dont worry, the police arent going to be involved,' Cottone said. But thats proving to not be true on day one.

The officer said the manager was the one protesting her presence in the restaurant.

Cottone is on unpaid leave after she did not show proof of receiving at least one dose of the vaccine by this past weekend, the Boston Herald reports.

Boston Mayor Michelle Wu has defended her mandate, calling it based on the needs of our health care system to end this pandemic.

Cottone noted on The Donlon Report that the vaccinated are still getting sick from the omicron variant. She is pleading with Wu to please have a heart.

Here is the original post:
Police officer: Calling mayor Hitler a 1st Amendment right - NewsNation Now

ExxonMobil is attempting to use an unusual Texas law to target and intimidate its critics, claiming that lawsuits against the company over its long history of downplaying and denying the climate crisis violate the US constitutions guarantees of free speech.

The USs largest oil firm is asking the Texas supreme court to allow it to use the law, known as rule 202, to pursue legal action against more than a dozen California municipal officials. Exxon claims that in filing lawsuits against the company over its role in the climate crisis, the officials are orchestrating a conspiracy against the firms first amendment rights.

The oil giant also makes the curious claim that legal action in the California courts is an infringement of the sovereignty of Texas, where the company is headquartered.

Eight California cities and counties have accused Exxon and other oil firms of breaking state laws by misrepresenting and burying evidence, including from its own scientists, of the threat posed by rising temperatures. The municipalities are seeking billions of dollars in compensation for damage caused by wildfires, flooding and other extreme weather events, and to meet the cost of building new infrastructure to prepare for the consequences of rising global temperatures.

Rule 202 in effect allows corporations to go on a fishing expedition for incriminating evidence. They are able to question individuals under oath and demand access to documents even before any legal action is filed against them.

Exxon wants to use the provision to force the California officials to travel to Texas to be questioned by the firms lawyers about what the company describes as lawfare the misuse of the legal system for political ends.

Exxon claims in a petition to the Texas supreme court that it is entitled to question the officials in order to collect evidence of potential violations of ExxonMobils rights in Texas to exercise its first amendment privileges to say what it likes about climate science.

The potential defendants lawfare is aimed at chilling the speech of not just ExxonMobil, but of other prominent members of the Texas energy sector on issues of public debate, in this case, climate change, the company claims in its petition.

The oil giants critics say Exxons attempt to use claims of free speech to curtail the first amendment rights of others follows a pattern of harassment toward those who challenge the companys claims about the climate crisis.

Patrick Parenteau, a law professor and former director of the Environmental Law Center at Vermont law school, has described the companys move as intimidation intended to make it cost a lot and be painful to take on Exxon whether or not the company wins its case.

In a highly unusual move, Texass governor, Greg Abbott, has written to the all-Republican court half of whose members he appointed in support of Exxon. He accused the California litigants of attempting to suppress the speech of eighteen Texas-based energy companies on the subject of climate and energy policies.

When out-of-state officials try to project their power across our border, as respondents have done by broadly targeting the speech of an industry crucial to Texas, they cannot use personal jurisdiction to scamper out of our courts and retreat across state lines, Abbott wrote.

In backing its claim, Exxons petition to the Texas supreme court gives the example of the Oakland city attorney, Barbara Parker, who in 2017 issued a press release seeking to stifle the speech of the Texas energy sector or, as she likes to refer to it, BIG OIL.

The press release said: It is past time to debate or question the reality of global warming Just like BIG TOBACCO, BIG OIL knew the truth long ago and peddled misinformation to con their customers and the American public.

The company also names the then San Francisco city attorney, Dennis Herrera, because he accused fossil fuel companies of launching a disinformation campaign to deny and discredit the reality of global heating, and pledged to hold the companies responsible to account.

Exxon has, in addition, targeted an environmental lawyer in Boston, Matthew Pawa, who represents some of the California municipalities. The firm describes him as an outspoken advocate of misusing government power to limit free speech and alleges that Pawa recruited the California cities and counties to sue Exxon.

Those lawsuits are an affront to the first amendment, the company claims.

Naomi Oreskes, a Harvard professor and co-author of Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming, said Exxon had a long history of attempting to bully its critics into silence.

Now that the arguments have moved into the legal sphere, this feels to me like an extension of the sort of harassment, bullying and intimidation that weve seen in the scientific sphere for the last two decades, she said.

Oreskes said that the legal strategy is also part of a broader public relations campaign to paint the company as a victim of radical environmentalists and opportunistic politicians when Exxon argues that it should be heralded for its efforts to combat the climate crisis.

Exxon Mobil has for a long time now tried to make themselves out to be the victim, as if somehow theyre the innocent party here, she said.

The Texas supreme court is considering the case after a lower court backed Exxons attempts to use rule 202 against the California officials. The ruling was later overturned on appeal.

The appeal court sympathised with Exxon by acknowledging an impulse to safeguard an industry that is vital to Texass economic well-being and saying that lawfare is an ugly tool by which to seek the environmental policy changes pursued by California municipalities. But the appeal court said the defendants did not have sufficient direct connection to Texas for the case to be heard in the state.

Exxon has tried to head off climate litigation before with lawsuits claiming that the attorney generals of Massachusetts and New York were violating the companys rights by investigating it. Those moves were blocked by the Massachusetts supreme court and by a federal court.

If the Texas supreme court allows its rule 202 bid to proceed, Exxon might expect a more sympathetic hearing for its claims in a state court system that has shown deference to big oil.

Exxon is facing a barrage of other lawsuits across the US. A number accuse the company and other fossil fuel firms of breaching consumer protection laws by propagating misinformation about climate science.

Oreskes said Exxon went further than most other oil companies in seeking to hide the evidence of its own scientists collected about global heating and in running a disinformation campaign.

Theyre pushing their freedom of speech as an issue because more than any other company, its been proven by people like me and others that they have a track record of promoting half truths, misrepresentations and in some cases outright lies in the public sphere, she said.

This is so well documented that unless they can come up with some strategy to defend it, theyre in potentially pretty serious trouble.

This story is published as part of Covering Climate Now, a global collaboration of news outlets strengthening coverage of the climate story

Go here to read the rest:
How Exxon is using an unusual law to intimidate critics over its climate denial - The Guardian

14 January 2022

Freeman Mathis & Gary

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In the recent decision entitledDoe v. Hopkinton PublicSchools, the U.S. Court of Appeals for the First Circuitrejected students' contention that posting abusive andembarrassing video of another student online was protected speech.The student members of the high school hockey team sued theHopkinton (Mass.) school district, the superintendent of schools,and the high school principal, and argued they were wrongfullydisciplined by the high school. Some students photographed andvideo-recorded a fellow member of the team and his family on manyoccasions, without his permission, and then shared images anddemeaning comments to a small group on the Snapchat social mediaapplication.

The offensive Snapchats included expletive-laced comments andreactions regarding the teammate's appearance, voice, anatomyand family members. A complaint was made to the school pursuant tothe Massachusetts Bullying Prevention and Intervention statute,Mass. Gen. Laws. Ch 71, 37Hand37O. An investigation determined that thevictim had suffered numerous acts of bullying as defined both bylaw and the district's Anti-Bullying Policy. Moreover, thevictim experienced being excluded, embarrassed, and feeling bulliedby the unauthorized sharing of his and his family's images onsocial media. The investigation further determined that the hockeyteam members were aware of, encouraged, joined, and participated inthe bullying. These activities occurred in the locker room, atschool, and on bus rides to away hockey games and later shared viathe internet. The involved students, including those who did notconfront the victim in person but simply joined in offensive onlinecommenting, were suspended from school.

Several of the disciplined students filed a lawsuit in U.S.District Court in Boston alleging that the school district hadviolated their rights to freedom of speech and freedom ofassociation (including the right to associate in the Snapchat groupand share offensive material) under state and federal law. U.S.District Court Judge William G. Young rejected the claims anddismissed the students' case against the Hopkintondefendants.

On appeal to the First Circuit Court of Appeals, the studentscontended that sending and discussing privatemessages among friends over the Snapchat platform was aconstitutionally-protected activity and that the school districtunlawfully interfered with their rights. The First Circuit rejectedthat bullying behaviors were protected by the First Amendment tothe U.S. Constitution. The Court accepted the conclusions by theschool district that the offensive speech and Snapchatparticipation violated school policy and state law and werecausally connected to other hockey players' active bullyingof the victim. The court noted that Children often bully asa group. The children who stand on a sidewalk and cheer as one oftheir friends shakes down a smaller student for his lunch money maynot be as culpable, but they are not entirely blameless. Thedecision held that it was reasonable for the school to concludethat the messages and the students' participation in theSnapchat group fostered an environment that emboldened thebullies and encouraged others in the invasion of the[victim's] rights. The evidence showed that they were wellaware of the effects of that conduct on their teammate. TheCourt determined that the speech and conduct at issue in a schoolenvironment are not protected by the FirstAmendment.

TheDoe v. Hopkinton Public School caseemphatically rejects the rights of students toparticipate in school bullying. It provides further guidance andprotection to schools and districts as they carry out legalobligations to investigate and discipline students for bullyingbehaviors.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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US Court Of Appeals Rules That Student "Snapchat Bullying" Is Not A First Amendment Protected Activity - Litigation, Mediation &...

Hays, a self-described policy wonk, had wanted to share his thoughts about student mental health in the district and score some extra credit in his government class. He returned to a meeting a month later with his parents and more than a dozen classmates to ask for change in another area: the boards public participation policy.

Every communitys different and our community, our sense is I think parents would want to know if their child is speaking and what the issue might be, board member Randy Scamihorn said in an interview with The Atlanta Journal-Constitution.

The courts have generally leaned toward granting more participation for students, not less, according to Richard T. Griffiths, president emeritus of the Georgia First Amendment Foundation. He said its entirely appropriate to allow students to speak without a parent present.

If we want to raise people who will be thoughtful, smart participants in our democracy, we need to be able to have kids participate early in that process, he said.

Thats what it came down to for Hays and his friends. They were interested in exercising their rights after learning about them in class.

To hear that he was just turned down immediately was kind of, it felt like it was almost undemocratic, said Emma Riser, another Lassiter High senior who addressed the board.

The students hope the district will create student advisory councils on topics such as academics, mental health and school district policy. They plan to keep speaking at board meetings and emailing district leaders.

The more input we can get in the decisions being made at the county level for the students, Hays said, the better the system will be and the more the students will thrive.

Continued here:
Cobb students push to speak to school board without parent permission - The Atlanta Journal Constitution

As a general rule, if youre on the same regulatory page as Russia, you should probably turn the pageif not set fire to it.

But thats where congressional Democrats find themselves with their calls for more government restrictions of dangerous misinformation online. Similarly, some Republicans are channeling their frustration about online removal of too much conservative content into efforts to punish Big Tech. Russias recent actions against U.S. tech firms should remind both parties what real censorship looks like and make them think twice about starting down a similar path.

Russia recently fined Google nearly $100 million and Meta, Facebooks parent company, approximately $27 million for failure to remove content that is illegal in the worlds largest democratic republic (wink, wink). Fines against foreign tech companies are not uncommon in Russia, but these amounts signal an intensification of efforts to quell content critical of the current political regime. It remains to be seen if Russia will act on threats to slow or block certain online services or even expel some Western services from the country. Generally, Russian state intrusion into media affairs and private speech has reached levels not seen since the fall of the Soviet Union.

While the U.S. is far from that level of incursion, many of the Democrat-introduced congressional proposals to restrict the presence and distribution of information online likely run afoul of First Amendment protections. That should worry Democrats and Republicans alike, as should Republican-led efforts to have unelected bureaucrats at the Federal Trade Commission certify platforms as politically neutral or attempts by state-level GOP politicians to regulate the Internet utility-style, as a common carrier. Both approaches represent major government intrusions into private entities property and into the protected speech of U.S. corporations.

One example is Senator Amy Klobuchars (D-MN) Health Misinformation Act of 2021. It would remove liability protections for online platforms from third party posts during health emergencies. But the recent flip-flops on mask recommendations, evolving theories on the origin of COVID-19, and ever-changing official safety guidance make clear what a messy task deciding what does and does not qualify as health misinformation would be for the federal bureaucracy.

More generally, a citizenry blessed with the right to elect its own government does not need said government determining what information is true or false. That sacred task should be reserved for the thinking individual via persuasion, debate, and reason. This is nearly the dead opposite of Klobuchars government patrol of speech, with the plaintiffs bar barking at the gates. Liability protection against third party posts for platforms facilitates the free flow of information online. Even when that information isnt perfect, its still better to have more speech than to have government deciding what speech is and is not allowed. After all, its often the most controversial speech thats in most need of defending.

If current efforts from the left to repeal Section 230 are successful, online platforms will still have their First Amendment rights to remove speech they dont wish to carry. Thats precisely why many on the right have floated the idea of regulating online platforms like common carriers, thus restricting their rights to remove content.

But that sort of regulatory expansion runs counter to the traditional instincts of Republicans to oppose the growth and power of government. Practically speaking, forbidding online platforms from removing any content will lead to overwhelming amounts of spam, pornography, and violent content flooding the Internet; Facebook becoming Pornbook is hardly the conservative end-game.

Even though both the left and the right can find fault with the current state of content moderation online, its still better to allow the market time to provide solutions and exercise regulatory restraint for fear of violating the First Amendment or chilling innovation. American politicians should leave wielding the iron fist of government to the Russians.

Original post:
In Russia, Government Tells Internet What to Say - Competitive Enterprise Institute

Media top headlines January 18

In media news today, CNNs Paul Begala says Democrats dont have bad leaders, they have bad followers, CDC Director Rochelle Walensky admits to poor messaging on COVID guidance, and Spotify remains silent after Joe Rogan critics call for change to prevent COVID misinformation.

Fox News host Dan Bongino warned that "it is going to get worse before it gets better" in the United States as President Biden appears to be politically floundering ahead of his one-year anniversary in office.

Bongino said Tuesday on "The Dan Bongino Show" on Fox Nation and Westwood One that when former President Bill Clinton faced cratering approval in the early part of his first term because of his far-left policies like "HillaryCare", the Arkansas Democrat made a calculation and tacked to the political center prior to his 1996 reelection.

Instead, Biden is doubling down on far-left politics, including issuing a verbal "appeal" to private companies to stop what he believes to be "misinformation" which Bongino said shows the president is "not hiding it anymore" in terms of his true politics.

"Joe Biden, the PINO president in name only is making a quote 'special appeal to private companies'," he said. He added that Biden had no issue with Big Tech and the mainstream media stifling coverage of his son, Hunter Biden's foreign business dealings, specifically the first son's former business partner Tony Bobulinski's interview with Tucker Carlson in 2020.

"They are specifically prohibited from colluding with private actors to suppress free speech this is a clear call to violate the First Amendment. He's saying I'm Joe Biden, I'm the president, I'm not allowed to do this but I'm going to do it anyway," Bongino said.

TUCKER: BIDEN IS GIVING THE LEFT MORE POWER TO HARASS THEIR POLITICAL ENEMIES

First Lady Hillary Rodham Clinton addresses a health care rally to push Congress to pass health care reform on Aug. 16, 1994. REUTERS/Stringer

Bongino said Biden's comments are a clear indication he has no intention to moderate as Clinton did, and that instead the Democrats in power have entered "desperation time" and are in turn seeking to crush opposing and critical voices.

"[Biden] is not going to change course. Even the dreadful Bill Clinton understood about of the way through his first term that if he was going to get reelected, he couldnt have the country falling apart and HillaryCare (what was to be the Health Security Act of 1993) be his signature issue."

Bongino pointed out Clinton's famous proclamation, "the era of big government is over", and that he decreased government spending with the help of newly elected Republican-controlled Congress.

That served Clinton well, Bongino said, reiterating that Biden shows no sign of seeking the same compromise as his predecessor.

LEO TERRELL: DEMOCRATS ARE IN A 1965 TIME WARP WITH RACISM ALLEGATIONS AGAINST POLITICAL OPPONENTS

President Biden clasps his hands while listening to questions from reporters. (AP)

"Im not celebrating the presidency of Bill Clinton or the morally-inept Bill Clinton himself, Im simply telling you he had the political acumen to understand he had overstepped that he'd screwed over America that the liberalism as he wanted it through HillaryCare and these other initiatives they were pushing for were not going to work, and he redialed and reset the thermometer, and he wound up getting reelected quite handily [in 1996]," Bongino said.

"Im telling you for a fact: Joe Biden has none of those inclinations. He is neither brave, nor does he have any sense of dignity. Someone is whispering in his ear because he just wants to be he loved by the liberal left that he can be this transformative figure despite the fact the electoral math does not work."

Instead, Biden continues to govern as if he received an electoral mandate in 2020 to govern from the hard left like Franklin Roosevelt, when in reality the Senate is evenly split and Democrats have a slim majority in the House, he added.

"Thats why he continues to lose. Thats why I am not optimistiches now getting desperate. And him getting desperate was evidence last week with a President of the United States personally calling for private companies to violate the Constitution and the First Amendment and suppress ideas he doesnt like," he said. "Folks, it is going to get worse before it gets better and I need everyone to be prepared."

In this Dec. 19, 1998 file photo, Hillary Rodham Clinton watches President Clinton pause as he thanks those Democratic members of the House of Representatives who voted against impeachment. (AP Photo/Susan Walsh, File)

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Bongino said he was heartened by the inauguration of Virginia Gov. Glenn Youngkin and the quick actions the governor has already taken.

"Glenn Youngkin had a great first day in Virginia. He did what he said he was going to do and we've got to clean the house up. Its our house, it's the United States of America," Bongino said. "We put our hands over our hearts, and we celebrate this place when that anthem plays because this place matters theres no second place, what are you going to do, go to Canada? There's nothing like the United States."

See original here:
Bongino warns it will 'get worse' as Biden lacks Clinton's moderating 'inclinations' that saved presidency - Fox News

Last Monday, Donald J. Trumps lawyers asked a federal court to dismiss three civil lawsuits against the former president brought by California Democrat Rep.Eric Swalwell, a group of otherHouse DemocratsandCapitol police officers.

Each suit seeks monetary damages for Trumps role in fomenting the armed invasion of the Capitol on Jan. 6, 2021, including the barrage of falsehoods that Trump churned out about a stolen election. The complaints also point to Trumps call to fight like hell at the Save America rally that day.

If the plaintiffs win these lawsuits, Trump is at risk of being ordered to pay millions of dollars to the individual victims of the Jan. 6 rampage. Large punitive damage awards can achieve at least partial justice, as they did last November when the organizers of the 2017 Unite the Right rally in Charlottesville, Va., wereordered to pay$26 million to their victims.

During a five-hour oral argument, U.S. District Court JudgeAmit Mehta askedwhether there was anything the president could say that would render him or her accountable in a civil suit. Trumps attorneys could not think of a single hypothetical exception.

Mehta should rule against Trump on each of the core legal claims.

The absolute immunity argument advances Trumps long-held position that presidents are above the law. His attorneys made similar (and equally unsupported) claims in both of his post-impeachment Senate trials. In the second trial following what we now understand to be an attempted coup, Trumps lawyers asserted without any legal precedent that presidents have what they termed enhanced free speech rights.

In 2020, Alan DershowitzAlan Morton DershowitzThere's no such thing as 'absolute immunity' for former presidents BBC faces blowback after Dershowitz appears as Maxwell trial analyst The dangerous trend behind Officer Kim Potter's conviction MORE of Harvard Law School, representing Trump at the first Senate trial, stunned most constitutional law expertswhen he said, If a president does something which he believes will get him elected in the public interest that cannot be the kind of quid pro quo that results in impeachment.

Trumps lawyers got it wrong then, and their arguments last Monday were wrong too.Heres why.

First, having little to work with, Trumps lawyers resorted to yet another incantation of executive privilege. But executive privilege exists so that presidents can freely exchange ideas and policy considerations with close advisors. It does not apply to what a president says in public. All evidentiary privileges evaporate after the statements are shared outside the confidential relationship.

The second argument may turn on whether Trumps exhortations to the crowd including fight like hell were within the scope of the presidents official duties and entitled to immunity or something else altogether. That something else might be characterized as campaign speech (as Trumps attorneys argued) or speech that the First Amendment doesnt protect, like incitement or expression that furthers a crime (e.g. conspiracy, sedition, or insurrection). Presidents who are on duty 24/7 may speak as individuals rather than as chief executive officers. The line is far from clear.

Third, the proposition that the First Amendment contemplates a president claiming enhanced free speech rights is preposterous on its face. The speech clause limits the governments ability to censor or punish expression it does not generally distinguish based on status. Even if such a distinction were contemplated, the former presidents baseless claim is topsy-turvy. The speech clause exists in large part to protect dissidents, the disempowered and those who speak truth to power. The powerful need no special protection.

Even when Trumps legal position is barely tenable, his goal, as we see again and again, is to block information from emerging through documents and depositions, and to stall any day of reckoning for as long as possible.

The fatal flaws in Trumps legal arguments in these three civil cases should convince Mehta to render a decision that would allow the lawsuits to proceed. We can hope that he rules quickly.

Catherine J. Ross is Lyle T. Alverson professor of Law at George Washington University Law School and the author of the recently released A Right to Lie? Presidents, Other Liars, and the First Amendment. Twitter: @catherinejross_

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There's no such thing as 'absolute immunity' for former presidents | TheHill - The Hill

Vigil honors democracy, remembers Jan. 6 insurrection

A crowd sang and made calls to action outside the First Unitarian Church of Oklahoma City on the anniversary of the Jan. 6 attack on the Capitol.

Addison Kliewer, Oklahoman

A judge Tuesday put a Chandler manon probation for two years and fined him $1,500 after he expressed little remorse for breaching the U.S. Capitol on Jan. 6, 2021.

Tanner Bryce Sells, 26,was ordered to spend the first 90 days of his probation on home detention.

He also must pay $500 in restitution and complete 50 hours of community service.

"I do appreciate the fact that you're willing to stand up and accept judgment, but I'm not sure that you actually understand what the problem was when you just call it a mistake," U.S. District Judge Amy Berman Jackson said.

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"And I'm not sure what to make of the fact that your lawyer said you aren't proud of your participation but you said nothing to me on that subject."

The judge conducted the hearing in federal court in Washington, D.C. Sells appeared with his attorney by videoconference from Oklahoma City.

He pleaded guilty in September to a misdemeanor, illegally demonstrating inside the U.S. Capitol. Among the evidence against him were videos he posted on Facebook.

Sells spent a little more than five minutes inside the U.S. Capitol after hearing then-President Donald Trump speak at a rally, his attorney told the judge in a sentencing memo.

"He walked in. And hewalkedout," Assistant Federal Public Defender Kyle E. Wackenheimsaid Tuesday. "There's no talking. There's no chanting. There's no violence."

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Sells had traveled to Washington, D.C., with members of his church to attend the rally.

"There's been a lot of people that's told me that I should come in here and apologize and show my remorse," Sells told the judge Tuesday.

"I have remorse for what I've done and all that. I made a mistake. But, inthe same time, I'm ..." he said, then paused.

"I'm a man of accountability," he continued. "And I'm willing to accept the mistakes that I made and accept your judgment in this."

Prosecutors had asked the judge to sentence Sells to 14 days incarceration, followed by 36 months of probationand 60 hours of community service.

His attorney had asked for probation for one year.

The judge scolded Sells while imposing thepunishment.

"I do want to make something clear, Mr. Sells," she said. "You were not prosecuted and you are not sitting in front of me today because you exercised your First Amendment right.

"You pled guilty to a federal offense. You broke the law. You're not here today because you supported the former president. Millions of people voted for him and did not heed his call to descend on the nation's Capitol.

"And there are plenty of people who came to hear the speeches that still managed to control themselves from entering the building."

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She told Sells he was a participant in a mass effort to subvert democracy.

"You contributed to the dangerousness. And you contributed to the devastation," she said. "And you helped prolong the period of time before the halls could be cleared and secured and Congress could resume doing the people's business."

Sells, who runs a construction business, is allowed to go to work while on home detention. He also is allowed to go to church and pick up and return his son.

Among those writing a letter of support on his behalf was state Rep. Kevin Wallace, R-Wellston.

The legislator asked the judge for "your compassion in this process." The judge indicated during the sentencing she had read thatletter and others.

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This Trump backer was inside U.S. Capitol only minutes. He'll spend two years on probation - Oklahoman.com