Category Archives: First Amendment

NORTHWOODS - While discussing the second amendment Monday, people in St. Germain exercised their first amendment rights.

Steve Carlberg came to the meeting in support of the resolution.

"They gave us the guns to have a militia to defend against all enemies foreign and domestic," said Carlberg. "That includes our own government."

Eric Olsen spoke in opposition to the resolution.

In the end both sides agreed, for the most part, that the issue is too important for a rushed decision. The town board unanimously approved a motion to put a Second Amendment Sanctuary question on the spring ballot.

"They did the right thing in there," said Carlberg. "Let's hear what the town has to say first, the majority of the townfolk - that's the American way."

"We don't need protection for guns," said a Merrill citizen at a city council. "We need protection from guns."

All four people who spoke during the public comment period were against the resolution. Citizens echoed the concerns about attracting tourists; and risking further endangering people experiencing domestic violence.

"Being a sanctuary city or sanctuary county, [that] would deny those families the protections the court is granting if nobody is going to enforce it," said a Merrill citizen.

Steven Osness is the Merrill alderman who introduced the resolution. He said it is a step in the right direction to protect people's constitutional rights.

"We want to protect the constitutional rights of people," said Osness. "If it's a first amendment, a second amendment, any amendment. We just want to ban together and protect our rights and freedoms."

In 6 to 2 vote, the City Council declared Merrill a 2nd Amendment Sanctuary. Lincoln and Langlade Counties will consider the second amendment sanctuary resolution at a later date.

The rest is here:
Merrill, St. Germain take different approaches on 2nd Amendment Sanctuary status - WJFW-TV

Many people recoil at the notion that the First Amendment protects the speech that they most dislike or detest.

The late great Nat Hentoff captured this censorial impulse in his Free Speech for Me, But Not for Thee.

But the reality is that the First Amendment protects much speech that is obnoxious, offensive and repugnant.

Justice William Brennan captured this principle eloquently in his majority opinion in the flag-burning decision Texas v. Johnson (1989):

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

The case involved the protest activities of Gregory Lee Johnson, who burned an American flag in 1984 in Dallas, the site of the Republican National Convention. While Johnson doused the flag with kerosene, others chanted, America, red, white and blue, we spit on you.

Johnson and others protested the policies of the Reagan administration and a coming second term for the president.

Of all the protesters, authorities arrested only Johnson and charged him with violating a Texas flag desecration law.

The court decided the case by the narrowest of margins, 5-4. Brennan emphasized that the state of Texas essentially was punishing Johnson for his dissident political views more than tarnishing a venerated object.

The way to preserve the flags special role is not to punish those who feel differently about these matters, Brennan wrote. It is to persuade them they are wrong.

In dissent, Chief Justice William Rehnquist analogized Johnsons burning of the flag to fighting words. But, in this case, Brennans view prevailed.

A lasting legacy of Brennans opinion in Texas v. Johnson is his bedrock principle phrase, which has come to represent a cardinal principle of First Amendment law that the First Amendment protects much offensive expression.

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute and a law professor at Belmont University.

Read more here:
David L. Hudson Jr. | The 'bedrock principle' of the First Amendment - TribDem.com

[1.] President Trump's Executive Order on Combating Anti-Semitism begins by noting that, though Title VI of the 1964 Civil Rights Act only bans "discrimination on the basis of race, color, and national origin"and not religion"in programs receiving Federal financial assistance,"

Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual's race, color, or national origin. It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI.

That strikes me as quite sensible. Much discrimination against Jews stems from hostility to Jews as an ethnic groupa group linked by ancestry and culture, quite apart from religion. In this respect, it's much like discrimination against, say, people of Hispanic or Arab ethnicity. Whether such ethnic discrimination against Jews qualifies as forbidden discrimination based on race or national origin turns out to be surprisingly unsettled, as I discussed in a September 2019 post (Is Rejecting Someone Because of His "Jewish Blood" Race Discrimination Under Title VII? National Origin Discrimination?). But there are ample precedents for the view that ethnic discrimination is race/national origin discrimination (again, see that post for more), and I think the Administration's position rightly endorses that view.

[2.] But the Order also goes on to say,

In enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin, all executive departments shall consider the following:

(i) the non-legally binding working definition of anti Semitism adopted on May 26, 2016, by the International Holocaust Remembrance Alliance (IHRA), which states, "Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities"; and

(ii) the "Contemporary Examples of Anti-Semitism" identified by the IHRA, to the extent that any examples might be useful as evidence of discriminatory intent.

(b) In considering the materials described in subsections (a)(i) and (a)(ii) of this section, agencies shall not diminish or infringe upon any right protected under Federal law or under the First Amendment. As with all other Title VI complaints, the inquiry into whether a particular act constitutes discrimination prohibited by Title VI will require a detailed analysis of the allegations.

The IHRA examples state that "Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to":

Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion.

Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collectivesuch as, especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.

Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.

Denying the fact, scope, mechanisms (e.g. gas chambers) or intentionality of the genocide of the Jewish people at the hands of National Socialist Germany and its supporters and accomplices during World War II (the Holocaust).

Accusing the Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust.

Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.

Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.

Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.

Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.

Drawing comparisons of contemporary Israeli policy to that of the Nazis.

Holding Jews collectively responsible for actions of the state of Israel.

This, I think, has the potential to unconstitutionally suppress speech. Let me explain why.

[A.] To begin with, imagine that President Bernie Sanders issues the following Executive Order:

In enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin against Palestinian-Americans, all executive departments shall consider the following examples to the extent that they might be useful as evidence of discriminatory intent:

Denying the Palestinian people their right to self-determination, e.g., by claiming that any Palestinian state would lead to terrorist attacks on Israel.

Applying double standards by requiring of Palestinians a behavior not expected or demanded of any other group that is waging an insurrection against an oppressive government.

Drawing comparisons of contemporary Palestinian policy and attitudes towards Jews to those of the Nazis.

Holding Palestinians collectively responsible for actions of Palestinian de facto governmental organizations.

Justifying the killing or harming of Palestinians in the name of protecting another nation's security, or on the theory that it is acceptable collateral damage in the other nation's defensive operations.

The premise in the first paragraph is legally accurate: Discrimination against Palestinian-Americans is likely already prohibited by Title VI as discrimination based on race or national origin, just as discrimination against Hispanics or Arab-Americans is already prohibited. But I take it that we'd be concerned that the following exampleseven if cast just as examples of what might be useful as evidence of discriminatory intentare likely to (and probably intended to) deter people from expressing their political views about the Israeli-Palestinian conflict.

To be sure, one can draw distinctions between the examples I give above and the examples in the IHRA Anti-Semitism statement. For instance, some people argue that it's illegitimate to deny to Jews a right to have a nation of Israel, because it already does exist, but legitimate to deny the Palestinians a right to have a nation of Palestine, because it has not been officially recognized. (I'm quite skeptical of the view that official international recognition should make a difference for which arguments are legitimate, and especially for which arguments are protected by the First Amendment.) Or some might say that, in their experience, the view that Jews don't have a right to national self-determination is highly correlated with anti-Semitism but the view that Palestinians lack such a right is not highly correlated with anti-Palestinian prejudice.

But do you think it's likely that courts will indeed reliably accept such distinctions? Or, if a court were to uphold President Trump's Executive Order, would that decision be a powerful precedent in favor of the constitutionality of the hypothetical order from President Sanders?

[B.] More specifically, one problem with the real Executive Order (as well as the hypothetical Order) is that speech has in recent years often been labeled discrimination, on the theory that certain statements create a "hostile environment" and therefore violate antidiscrimination rules. Under this theory, a rule that "Drawing comparisons of contemporary Israeli policy to that of the Nazis" is "evidence of discrimination" means that a university could be punished under Title VI for allowing speech drawing such comparisons. Likewise, drawing such comparisons would violate campus speech codes that ban "discrimination" and "harassment."

The Lawfare Project's Dec. 18, 2019 complaint against Columbia, which cites the Executive Order, relies on precisely this theory. Among other things, it lists sharply anti-Israel (and pro-Hamas) public statements by Prof. Joseph Massad and Prof. Hamid Dabashi as examples of "discrimination against" the complainant and "discrimination directed at" other Jews or Israelis. (I received a copy of the Complaint with authorization to quote portions but not post it; it's not a court filing, so it apparently isn't a fully public document.) Likewise, the complaint takes the view that Columbia's refusal to silence such criticisms, or to publicly condemn them, has helped "create[] a hostile environment" in "violation of Title VI."

(Columbia's decision not to condemn certain statements would itself be an exercise of its own First Amendment right not to speak. But the complaint argues that "Although Dabashi has a right to free speech, the university has an obligation to either sanction or condemn this speech when it conflicts with university policies and federal law," and seemingly takes the view that the speech does "conflict[] with federal law.")

As David Bernstein has pointed out, the problem here partly stems from the view that public comments by students, professors, and others can violate antidiscrimination law if they create a "hostile educational environment" based on race, religion, sex, sexual orientation, gender identity, national origin, and the like. Many courts have struck down campus speech codes framed in such terms, but the government and various universities has continued to assert that such speech restrictions are constitutional.

But the Executive Order, it seems to me, exacerbates the problem by sweeping in anti-Israel speech (and not just overtly anti-Jewish speech) as potentially punishable "discrimination." Both anti-Israel speech and anti-Jewish speech are protected by the First Amendment (unless they fall within one of the narrow exception to First Amendment protection, such as for true threats). But broadening the unconstitutional restrictions is surely not a step forward.

Nor do I think that the Order's statement that, "In considering the materials described in subsections (a)(i) and (a)(ii) of this section, agencies shall not diminish or infringe upon any right protected under Federal law or under the First Amendment," helps much. The problem is that government officials often tend not to recognize that various speech, especially speech that is viewed as bigoted or "discriminatory," is protected by the First Amendment; the Order, notwithstanding its "shall not diminish or infringe language," tends to reinforce this attitude.

[C.] But say that the Executive Order were limited to what one might think of as purely evidentiary uses of speeche.g., if someone has been attacked, or had his property vandalized, or has been excluded from some university program, or given a low grade, and the question is whether the action was motivated by his being Jewish. That may be what at least one adviser to the Administration may have intended, according to this article in Haaretz (Amir Tibon):

Avi Berkowitz, a close adviser to Kushner and heavily involved in working on the executive order, says the answer is no. "A complaint against a lecture as you describe would not trigger Title VI," he says. "In order for Title VI to apply, there has to be actionable conduct. Title VI requires a certain level of conduct, and the executive order does not change that requirement. The lecture remains protected speech."

Let's set aside the possibility that, as some have argued, the creation or tolerance of a "hostile environment" would itself be treated by some as "actionable conduct," even if the environment stems just from speech that doesn't fit within any of the narrow First Amendment exceptions; and let's focus on the purely evidentiary uses I just mentioned.

Even for such evidentiary uses, I think the Executive Order is dangerous and unconstitutional, as my hypothetical Sanders Executive Order helps illuminate. Say that you are a professor who rejected a student's application to a graduate program. He claims that the rejection stemmed from his or his parents' having been born in Gaza. (Assume he's an American citizen, so the claim is of discrimination based on national origin, and not based on current citizenship, which would raise more complicated problems.)

You argue that, no, you rejected him because you thought his past scholarly work wasn't strong enough. He responds that, (1) under the hypothetical Sanders Executive Order, "Denying the Palestinian people their right to self-determination" is an example that "shall [be] considere[ed] to the extent that [it] might be useful as evidence of discriminatory intent"; (2) you had publicly argued against a separate Palestinian state; and therefore (3) that is evidence that you were biased against him based on his national origin.

I think such an argument would be quite wrong, and dangerous to academic freedom. If the argument were accepted, it would sharply chill advocacy of various views on the Israeli-Palestinian conflict, and the government has no business doing that. And of course the same is true of the actual Trump Executive Order.

Now I acknowledge that speech can be used as evidence of motive; indeed, sometimes it's the only such evidence. (See this post for more, including a discussion of some key Supreme Court cases on the subject.) Even in the absence of any Executive Order, if a professor publicly says "All Jews are scum and I hate working with them" or "all Palestinians are scum and I hate working with them," that could be evidence that a particular action by a professor with respect to a student was deliberate discrimination based on ethnicity. The same would be true if a student is being accused of punching a classmate or vandalizing the classmate's property based on the classmate's being Jewish or Palestinian.

But when there is such concrete evidence of ethnic hostility, the Executive Order is unnecessary. The Order would make a difference only in cases where statements overtly expressing ethnic hostility are weak or even absent, and the evidence stemming from one's views on the Israeli-Palestinian conflict would then be brought in.

The closest analog in the Supreme Court precedents (not a perfect analog, but I think a helpful one) is the presumption struck down in Virginia v. Black (2003). There, the law banned cross-burning with the intent to intimidate; and some such cross-burning (e.g., burning a cross in front of a black family's house with the intent to make them fear that physical violence would be next) may indeed be punishable, when it falls within the First Amendment exception for true threats of violence. But the law also added,

Any such burning of a cross [including in any public place] shall be prima facie evidence of an intent to intimidate .

The Court held that this "prima facie evidence" provision violated the First Amendment, for reasons stated by Justice Souter (joined by Justices Kennedy and Ginsburg), and agreed with by Justice O'Connor (joined by Chief Justice Rehnquist and Justices Stevens and Breyer):

As I see the likely significance of the evidence provision, its primary effect is to skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning. To understand how the provision may work, recall that the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten. One can tell the intimidating instance from the wholly ideological one only by reference to some further circumstance. In the real world, of course, and in real-world prosecutions, there will always be further circumstances, and the factfinder will always learn something more than the isolated fact of cross burning. Sometimes those circumstances will show an intent to intimidate, but sometimes they will be at least equivocal, as in cases where a white supremacist group burns a cross at an initiation ceremony or political rally visible to the public.

In such a case, the prima facie evidence provision will have the practical effect of tilting the jury's thinking in favor of the prosecution. [T]he provision will encourage a factfinder to err on the side of a finding of intent to intimidate when the evidence of circumstances fails to point with any clarity either to the criminal intent or to the permissible one. The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression.

To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute toward suppressing ideas. The question here is [whether] the statute's terms show that suppression of ideas may be afoot. And if we look at the provision for this purpose, it has a very obvious significance as a mechanism for bringing within the statute's prohibition some expression that is doubtfully threatening though certainly distasteful.

I think the same reasoning applies here. If a university responding to a student complaint, or the Department of Education Office for Civil Rights determining whether a university's response was inadequate, sees the usual sorts of evidence that would normally prove discriminatory motivation (e.g., "I hate Jews"), it can certainly rely on that evidence.

But the Executive Order, by listing specific political statements as potential evidence, "skew[s] [the decisionmaker's] deliberations toward [a finding of forbidden behavior] in cases where the evidence of [anti-Semitism] is relatively weak." It "tilt[s] the [decisionmaker's] thinking in favor of [a finding of guilt]" simply based on a professor's or student's expression of political views about Israel (or, in my hypothetical, about Palestinian organizations). If "[t]he question" is whether "the [Executive Order's] terms show that suppression of ideas may be afoot," those terms have "a very obvious significance as a mechanism for bringing within [Title VI's] prohibition some expression that is doubtfully [evidence of discrimination]."

[* * *]

On the merits of the Israeli-Palestinian controversies, I generally support Israel; and I don't always support arguments that various attempts to protect Israel or Israelis from discrimination violate the First Amendmentconsider, for instance, my amicus briefs (e.g., this one), filed on behalf of Prof. Michael Dorf, Prof. Andy Koppelman, and myself, arguing that various state anti-BDS statutes do not violate the First Amendment. (My position there is that actual refusal to deal with Israel and Israelis are not protected speech, even if they are politically motivated, just as refusal to deal with Muslims or Christians are not protected speech.)

But here it seems to me (as I've argued before as to similar proposals) that the Executive Order really does risk suppressing not just discriminatory conduct but speechspeech that I generally disagree with, but speech that is fully constitutionally protected.

Read more:
Executive Order on Anti-Semitism Could Suppress First-Amendment-Protected Criticism of Israel - Reason

The part that is missed is the first five words of the First Amendment: Congress shall make no law. It was designed to limit what laws Congress could create. In doing so it also limits the Executive Branch, as its relevant authority is derived from the laws passed by Congress. The First Amendment thus stops executive officials in their official capacity from limiting speech they dont like but it doesnt stop individuals acting in their private capacity.

Upon creating official government accounts @WhiteHouse or @DepofDefense, as examples the government creates designated public forums where people can respond to official tweets. If the government were to block people from responding to these accounts because the government didnt like their opinions, it would be engaged in viewpoint discrimination, and that is prohibited by the First Amendment. However, if Twitter allowed accounts to turn off all responses, this would likely be allowed, as it wouldnt be discriminating based on viewpoint.

But most elected officials are legislators and not even a part of the Executive Branch. They almost always created their accounts long before they were in office as their personal account. Even a campaign account would still be private, not a government account. The First Amendment only limits the laws that Congress passes as a body; it does not limit individual members of the legislature. You have no right, for instance, to invade the home of a congressman to protest some issue; that is their property.

The story becomes a bit more complex for the accounts of the president and vice president. They are part of the Executive Branch and so are limited in their official acts by the First Amendment. The official accounts of the president, including @POTUS, are government accounts created and set up as designated public forums by the government. Thus, the government is limited by the First Amendment.

But what about @realDonaldTrump: Is that an official account? Trump acknowledged that he uses the account to, among other things, announce official decisions. The White House press secretary said the tweets are considered the official statements by the president of the United States. The president used the account to announce the nomination of the new FBI director and his new ban on transgender individuals in the military.

Given these facts, the Second Circuit Court of Appeals found that the president chose to transform his personal account into an official government account. This means he no longer is able constitutionally to block people from responding to his tweets based on viewpoint.

The problem for the Second Circuit is when this occurred. By what act did the president transform his previous private account into the public one of his office? Merely speaking about his official acts through the account isnt enough. The Second Circuit isnt exactly clear as to when this happened. The fact that the account was created before Trump was president and will likely continue as a private account after he leaves is a strong factor suggesting the Second Circuit may be wrong and that other courts may decide the same issue differently.

But, at least for Trump, it doesnt matter, as the Second Circuit has decided Trump has adopted his Twitter account as an official account of his office and therefore cannot block people.

While this limits the @realDonaldTrump account from being able to block people, the reasoning doesnt apply to almost any other elected official (most of whom are legislators).

It is possible the 2nd Circuit decision will apply to some state governors and other state executive-branch officials. It will turn on whether those officials used their Twitter account as the official account of their office, such as announcing official decisions.

But almost all elected officials are in the legislature, either federal or state; and as such their Twitter accounts cannot possibly be limited by the First Amendment. There was no law upon which such accounts base their authority, and so the First Amendment simply doesnt apply.

Devin Watkins is an attorney for the Competitive Enterprise Institute (cei.org), a nonprofit libertarian think tank based in Washington, D.C. He wrote this originally for InsideSources.com.

Excerpt from:
Pro/Con: Can elected officials block you on social media? Yes, the Constitution can't be applied to private tweets - Duluth News Tribune

0:08 Jason Stanley is a professor of Philosophy at Yale University. Hislatest book is How Fascism Works.

0:34 William Bennett Turner has argued cases before the US SupremeCourt, covered legal issues for public television, published widely onfree speech, and taught courses on the First Amendment at UC Berkeley for more than three decades. His latest book is Free Speech for Some: How the Supreme Court is Weaponizing the First Amendment to Empower Corporations and the Religious Right.

1:08 Suyi Davies Okungbowa is a Nigerian author of stories featuringAfrican gods, starships, monsters, detectives and everythingin-between. He is an MFA candidate in Creative Writing at the University of Arizona, where he teaches writing, and has worked in editorial at Podcastle and Sonora Review. His latest work is a godpunk novel, David Mogo, Godhunter.

1:34 Jane Stoever is a professor at the University of California, IrvineSchool of Law, where she directs the Domestic Violence Clinic andthe Initiative to End Family Violence and teaches Family Law andLegal and Social Responses to Domestic Violence. She alsoco-chairs the Orange County Domestic Violence Death Review Team.Her research concerns domestic violence law, family law, firearmsand family violence, and feminist legal theory, and her scholarshipincludes the new edited volume The Politicization of Safety.

Excerpt from:
How Fascism Works with Jason Stanley; Plus: How the Supreme Court is Weaponizing the First Amendment - KPFA - 94.1FM

Flowers and candles are seen outside the satirical newspaper Charlie Hebdos former office on the fifth anniversary of the attack and a siege at a Kosher supermarket which killed 17 people in Paris, France, January 7, 2020.(Gonzalo Fuentes/Reuters)Giving a bunch of religious extremists or government bureaucrats veto power over our speech doesnt make us safer. It just makes us less free.

Five years ago today, two French Islamists forced their way into the Paris editorial offices of the satirical newspaper Charlie Hebdo and began shooting. The journals offices had been moved to an unmarked building after they were hit by a 2011 firebombing in response to the publication of a satirical cartoon of the Prophet Mohammed. The shooters managed to kill twelve people. A related attack soon followed in a kosher supermarket, where four Jews were murdered by a friend of the shooters.

Even today, the papers editor, whos published offensive caricatures of popes and rabbis, lives under police protection for the crime of slandering Mohammed. Charlie Hebdo, whose circulation has dropped precipitously after an initial post-attack spike, is an ill-mannered slayer of sacred cows of a kind that, sadly, doesnt exist in the United States. The only American enterprise I can think of that has a comparable openness to skewering all faiths is South Park, but even its excellent brand of satire is staid by comparison.

For a brief moment after attack, the free world rallied around Charlie Hebdo. Je suis Charlie became a global rallying cry. The massive march through the streets of Paris that followed included virtually every major world leader, including those hypocrites who are happy to clamp down on free expression in their own nations. One leader conspicuously, and embarrassingly, absent from the proceedings was the president of the United States, Barack Obama. He sent the U.S. ambassador to France instead.

Its worth remembering some of the Lefts passive-aggressive victim-blaming after the second attack. Shooting people is wrong, wrote The Daily Beasts Arthur Chu, a guy who puts quotation marks around free speech when the thoughts being expressed offend his sensibilities. But, he warned, do not martyr the trolling satirists of Charlie Hebdo, and do not act in a way that valorizes free speech for its own sake. The latter is an argument we hear all the time today.

Taking a slightly different tack than Chu, Max Fisher at Vox lamented that these white French people were punching down at powerless brown people. Fisher now works at the New York Times, a publication that has no compunction punching down when it comes to American Christians. If an anti-abortion extremist shot up a major newspaper, would anyone argue that the shooting was terrible, but we really should start thinking about pulling our rhetorical punches when it comes Evangelical conservatives or pro-lifers? Doubtful.

Criticism of Islam is a completely legitimate form of political speech, as is criticism of Catholicism and Mormonism and Judaism and Scientology, all of which Charlie Hebdo has also satirized. We have no responsibility to respect anyones ideas about the world, or the afterworld, nor do we have any right to expect to live in a world free of offense. The argument that a subset of people in this case Muslims should be afforded special protections from open discourse is itself a bigoted way of saying you dont believe Muslims can live peacefully in the free world.

Then again, over the past five years the United States has probably been irreparably infected by this authoritarian impulse to dictate rhetorical etiquette and appropriate political speech. The idea of passing hate-speech laws, long a norm in Europe Emmanuel Macron recently tried to push through a law governing social-media speech has been aggressively normalized in the United States over that span.

Its not just brittle Millennials who believe speech is tantamount to violence. Many polls show an increasing openness to hate-speech laws in the United States. We now have high-profile television personalities with (highly suspect) law degrees claiming that hate speech is excluded from protection under the First Amendment. We have research professors from the American Bar Foundation arguing that citizens should be barred from saying offensive words in the public square. It wasnt long ago that Richard Stengel, a former Time managing editor, was arguing in the flagship newspaper of the nations capital that the government should begin policing speech.

Even the most sophisticated Arab diplomats that I dealt with did not understand why the First Amendment allows someone to burn a Koran, Stengel recollected. Even even! the most sophisticated Arab diplomats are working for theocratic and/or authoritarian states that not only fail to protect basic civil liberties but also occasionally behead, hang, and flog people for crimes against the Koran. Pardon me, but Im not surprised they dont get it. What Stengel should have told his sophisticated Arab friends is that free speech is a neutral principle, and that burning a Koran, like burning an American flag, is a political statement. The First Amendment doesnt let us do those things; it protects our inherent right to free expression, including expression condemning Koran-burners and flag-burners, without prejudice.

Then again, Stengel gives away the game when he asserts that open discourse is responsible for allowing Moscow to slip its destructive ideas into our media ecosystem. I realize hes distressed about Donald Trumps presidency, but taking to the pages of the Washington Post to argue that United States should function more like Putins Russia is a weird way to show it.

In any event, the trial of the terrorists who help facilitate the Charlie Hebdo massacre began this week. Only five of the 24 jihadists who helped plan the attack will be appearing in court. The other 19 suspects, most of them dead, had long ago left to fight in Iraq and Syria with ISIS. They were probably really mad about the tone of French political cartoons.

In the meantime, Charlie Hebdo should remind us that giving a bunch of religious extremists or government bureaucrats veto power over our speech is a terrible idea. It does nothing to make us safer. It only makes us less free.

See original here:
Five Years Later, We Still Havent Learned from the Charlie Hebdo Massacre - National Review

There is a long and sordid history of faithlessness to the guarantees enumerated in the U.S. Constitution. After all, judicial review did not exist until 1803, and popular will could therefore effectually overrule, or at least incredibly frustrate, any Constitutional guarantee from the start. Yet, common fidelity existed enough to expand Constitutional guarantees to the states, as a direct consequence of a rebellion by some. After civil war, our countrys highest court refused to uphold the newly expanded Constitution, only for some of course, for nearly a century. Today many continue to make a persuasive case to many, that our courts are still failing.

But back to the positive for a moment. Wherever the expansion of Constitutional rights has occurred, with full legal force, it has identifiably resulted in a universally positive impact on American society. Nowhere is that fact more evident than with the expansion of First Amendment religious liberty and moral/social tolerance. Prior to the expansion of the First Amendment to the states, religious minorities were widely discriminated against by state governments. The state-sponsored discrimination was not due to religious minorities being denied the benefits of established state churches, as some have erroneously suggested, but rather by state support of religion at all, even in neutral form. In any case, the fact that states can no longer legally discriminate against religious minorities in the ways done before is a positive development of Constitutional expansion.

Despite the expansion, enforcement of the Constitution today, as it always has before, faces significant hurdles. Court-created immunities for government actors have resulted in a system that leaves citizens, in the words of a federal judge, violated but not vindicated. It just so happens, however, that Clark Neily, a Cato Institute scholar, has proposed a novel solution that is generating substantial praise in the field of constitutional law.

Neilys proposal can be summed up as simply combining two utterly commonplace features of our existing system: traffic tickets and small claims court. Imagine, Neily argues, a system where citizens can report constitutional violations as with any small claims court, that can include methods of introducing any documentation you might have, including a recording of the incident. The punishment in many cases need only be slight, a minor fine, again as with any traffic court, and made without any admission of liability by the government or its actors. Of course, application of Neilys proposal would likely mean that only trivial or minor constitutional offenses would stand the chance of being redeemed, and the more serious offenses would be left unaddressed.

Strong evidence exists, however, that gradual, incremental steps in the direction of human rights is a powerful engine for positive change and human flourishing. Rather refreshingly, that evidence is taken into account in Neilys constitutional small claims court proposal, as is the recognition that harsh punitive responses to violators, even where just, are self-defeating. Instead, Neily argues the system should harness the power of incentive in order to address minor constitutional harms, Ill let him explain it from here:

We provide a kind of bonus, equivalent to, say, ten percent of an officers current salary, and we put it in escrow at the beginning of the year [] And it is from that escrow account that awards against the officer in constitutional small claims court would be drawn. Thus, good officers who generate few if any meritorious claims in a given year will receive a nice bonus in the form of a substantially fully funded escrow account; but officers who generate lots of meritorious claims will receive little if any bonus and may even have to go into their own pockets if the money in their escrow account runs out before the end of the year.

Although Neily focuses his proposal on police officers, it could be applied to every government actor. Although the benefits might appear slight, I can attest from experience than even relatively minor or trivial deprivations of Constitutional guarantees can have a profoundly negative impact on citizens and that correcting, or at least acknowledging the violation can be equally profound positive effect.

Tyler Brokers work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free toemail himor follow him onTwitterto discuss his column.

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Accountability For Constitutional Violations Likely Has To Start With The Trivial - Above the Law

Garrett Epps: Dont let the First Amendment forget DeRay Mckesson

This is a theory of liability unknown to the First Amendment. In an important case arising from the civil-rights movement, the Court held in 1982 that protest leaders cant be sued for the violent actions of others unless the plaintiffs can show that the leaders themselves either engaged in violence or incited or directed the violence. Doe alleged incitement, but made no real attempt to show it.

Garrett Epps: Dont let the First Amendment forget DeRay Mckesson

The First Amendment and civil-liberties communities were shocked by the Fifth Circuits original decision, issued in April, which brushed aside the First Amendment with the breezy bromide that the First Amendment does not protect violence. The decision was unanimousWillett was on the panel, but the opinion was written by Judge E. Grady Jolly. (Judge Jennifer Walker Elrod was the third member.) That opinion was a dagger pointed at the heart of the treasured American right to protest against government action. If protest organizers can be sued, and possibly ruined, by lawsuits if anyone at their protest (even, say, an undercover police officer) turns violent, no ordinary citizen would dare organize protests.

Mckessons lawyers asked the Fifth Circuit to rehear the case en banc (as a full court); in response, the same panel withdrew its original opinion and substituted a new one that said, in legal verbiage, We agree with ourselves and by golly, we are right.

The case landed in the Supreme Courts inbox on December 6. Mckessons petition for the Court to hear the case, written by lawyers from the American Civil Liberties Union, pointed out that the Fifth Circuit panel decision flatly defied the Courts own precedent in a landmark case called NAACP v. Claiborne Hardware. Advocates of free speech were holding their collective breath waiting to see whether this Court, which preens as a First Amendment champion when the rights of corporations or the rich are at issue, would call out the wayward panel or silently ratify its radical change in the law.

The latter course just got harder. Willett, a Trump appointee and former Texas Supreme Court justice, has now changed his vote and issued a full-throated defense of the idea that free speech covers even unruly protest.

I have had a judicial change of heart, Willett wrote. Admittedly, judges arent naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, Wisdom too often never comes, and so one ought not to reject it merely because it comes late.

The words are true, and the practice of judicial self-examination is, while not unheard-of, regrettably rare. In this case, reexamination led Willett to see two gaping holes in the majoritys case. First, he pointed out, despite the panels earlier decision, its not clear that even Louisiana tort law would support a lawsuit against Mckesson. To reach that conclusion, the panel had to, in essence, make new Louisiana state law. Every second-year law student knows that is a practice courts of appeals are supposed to avoidespecially when doing so creates a federal constitutional issue.

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A Stunning Vote Reversal in a Controversial First Amendment Case - The Atlantic

John Borger was drawn to journalism early on, starting with his high school newspaper in Parkersburg, W.Va. He stayed with it on the campus paper at Michigan State University, where he met fellow journalist Judith Yates, and took his devotion to the free press to Yale Law School.

Eventually Borger landed in Minnesota, where he built a long and noteworthy career as one of the nation's pre-eminent First Amendment lawyers.

Borger, 68, died Monday at his home in Minneapolis as his son Nicholas read to him from a prized DC comic book. He had endured a struggle with cancer for several years.

He provided counsel to generations of editors and writers at the Star Tribune. The newspaper's general counsel, Randy Lebedoff, called him "a brilliant First Amendment advocate who contributed greatly to our state and country by standing up for freedom of speech when it counted."

In 2017, Borger retired from the Faegre Baker Daniels law firm, where he represented the Star Tribune and other media organizations for four decades. The following year, he became only the third lawyer to receive the Champion of the First Amendment Award, the highest honor from the American Bar Association (ABA) Forum on Communications Law, at its annual conference in Napa, Calif.

The award cited Borger's devotion to freedom of speech and freedom of the press, "passionately and zealously fighting to hold public officials and institutions accountable through transparency." It said he played a pivotal role in helping to organize a national network of lawyers that represents the news media.

Borger was the lead attorney representing the estate of the late Chris Kyle, who was sued for defamation by former Minnesota Gov. Jesse Ventura.

Ventura said Kyle fabricated an incident in Kyle's bestselling memoir, "American Sniper," concerning a fight Kyle claimed the two had in a California bar. Ventura won a $1.8 million verdict in U.S. District Court in St. Paul in 2014, but it was overturned by the Eighth U.S. Circuit Court of Appeals and settled out of court in 2017.

Borger was well-known and admired across Twin Cities newsrooms. As word of his death spread, journalists shared their stories of receiving his steady and comforting counsel, ranging from prepublication review of sensitive stories to defense of the press in court. Friends described him as a gentle presence with a warm grin but also a glint in his eye that suggested he was up for the good fight.

Mark Anfinson, a First Amendment lawyer in Minneapolis, worked closely with Borger throughout his career.

"I always regarded him as the oracle," Anfinson said, adding that Borger was a "lawyer's lawyer" who was thoughtful, respectful, tenacious and always able to control the emotions of a case.

Borger wasn't one to speak loudly or wave his hands around to make a point. His reserve meant he could occasionally be underestimated, Anfinson said.

"The minute he opened his mouth, that illusion was dispelled," Anfinson said. "His analysis was so good, he didn't have to engage in all those tricks. He always made the best possible argument."

Retired Star Tribune reporter Mike Meyers recalled working with Borger to make sure a story he was writing about a downtown development wouldn't get the newspaper sued. Meyers said his editors were wary of a sidebar he had written about a city official's role in the deal. So he was pleasantly surprised when Borger said, according to Meyers, "Nothing of concern here. It's all part of the rough and tumble of politics and commerce. She's a public figure."

Steve Brandt, another retired Star Tribune reporter, met Borger at age 20 when they both had college journalism internships. Their families were friends for years, and Brandt said they gathered for a board game last week and had expected to do so again Wednesday.

Professionally, Brandt said Borger was a journalist's ally. "He repeatedly helped reporters pry loose loads of government data that pols would have preferred not be revealed," Brandt said. "He lawyered countless draft stories before publication to armor-plate them against libel."

In recent weeks, Borger lovingly chronicled his life on a CaringBridge site. He wrote his final passage Friday about his wedding to Yates in 1974 and their honeymoon on Cape Cod where, he wrote, "Judy danced beneath a diamond sky with one hand waving free, silhouetted by the sea."

On Monday, Judith Yates Borger, a retired St. Paul Pioneer Press reporter, wrote on the CaringBridge site about how John spent his final Sunday with the family at iFly Indoor Skydiving in Minnetonka, an indoor wind tunnel that simulates the sensation of jumping out of an airplane. He wore a Superman sweatshirt and was aided by three staff members as he took the plunge with his family.

"With his thumbs up, and a smile on his face, John felt the joy of free flight," Judith Yates Borger wrote.

Besides his wife and son Nicholas of St. Paul, Borger is survived by his daughter, Jennifer Schmid, and son Christopher, both of Minneapolis, and six grandchildren. A memorial service is tentatively planned for early January.

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Attorney John Borger, 68, longtime legal champion of the media, dies at 68 - Minneapolis Star Tribune

Last week, the House Judiciary Committee debated articles of impeachment drawn from a densely argued, sharply worded 300-page report that the Democratic majority on the House Intelligence Committee produced. It is an investigative tour de force, written for posterity. In considerable detail, using interviews and records, it describes, for example, how President Trumps top personal adviser, Rudolph W. Giuliani, traipsed across Europe, circumventing diplomats as he furthered the presidents direct political interests. It also delves into the circumstances behind Mr. Giulianis repeated contacts with a reporter, John Solomon of The Hill, and marshals a case that Mr. Solomons reporting helped push a false and damaging narrative about the then-serving American ambassador to Ukraine, Marie Yovanovitch.

The committee chairman, Representative Adam Schiff, believed that a detailed description of Mr. Solomons contacts with Mr. Giuliani and with Ukrainians were germane to the core of the case for impeachment against Mr. Trump, because the report speaks to the flood of misinformation that may have persuaded President Trump to act so recklessly.

But those who care about the vitality of journalism should here take a pause and ask why they dont feel disturbed. John Solomons investigative articles for The Hill may have been wrong, they were often misleading, and they were (judiciously, unwittingly?) used to further a conspiracy to oust a respected American ambassador. Mr. Solomon is a dogged, prideful investigator who worked with The Associated Press and The Washington Post before his political inclinations became more manifest and his penchant for accepting conclusions congenial to Republican partisans became a calling card.

But in revealing whom Mr. Solomon talked with, and when, Mr. Schiff and his committee have created a new pathway for the government to find and reveal a reporters sources and to question his or her motives. That is wrong. The legislative branch should not use its subpoena power to police journalism.

Mr. Schiffs pathway could easily be considered a precedent. And the government does not need more encouragement to out a journalists sources. The executive branch, in the institutions of the Department of Justice and the F.B.I., has used metadata call records and routing information not protected by the Fourth Amendment to document reporters contacts with their sources in a number of cases in which the source has subsequently been imprisoned. The public interest case for prosecuting leakers is easy to make. But we should note that the governments obligation to protect national security and a reporters duty to uncover abuses of executive power often clash. Whom you side with at those junctures depends on which tribe you belong to. Im a journalist, so I often side with the journalists.

I do have a big problem when journalists wittingly or unwittingly collude with foreign governments to degrade the institutions of democracy that we rely on. And while Im tempted to assert that Congress has no business ever poking its nose into reporting, I cant deny the circumstances that collided here; Mr. Solomon is part of this story. But to deny him any First Amendment protection of his work is to fail to see beyond the immediate ramifications of Mr. Schiffs decision. If Republicans regain control of the House, what would prevent them from using the same tactic to pummel the press for stories its members dont like? Ah, but what if the reporters have been consorting with liars and cons, as seems to be the case here?

Well, the worst people often have the best available information, and judgment calls are a humble part of the journalistic enterprise. Congress should recognize this and acknowledge that it is important.

Mr. Schiff did not subpoena Mr. Solomon directly, and his staff seems to believe that this settles the matter. But it should not. Mr. Schiff has effectively punished a reporter for reporting. And punishments that might be levied for errors in reporting and for apparent partisan bias should never come from the government. Journalists who dont object to this investigative practice will conspire to make it much easier for future entities in government to harass reporters who are pursuing the truth.

It pains me to see some of our most respected advocates for press freedom default to the view that Congresss procedures were duly followed and, while there may be some ickiness in the air, Republicans who have complained about Mr. Schiffs methods have no right to complain about intrusive government. This argument does not track, though, especially during a week when the Justice Departments inspector general revealed serious and potentially material deficiencies in the F.B.I.s application to renew a Foreign Intelligence Surveillance Act order against Carter Page, a low-level Trump foreign policy aide whom the F.B.I. suspected might have a been a conduit for the Russian government to control or influence the Trump campaign. (There is no evidence that Mr. Page, a serial entrepreneur with some dubious friends, served in this role.)

Another way to minimize the First Amendment implications of Mr. Schiffs decision is to note that President Trump represents (and indeed has become) a far worse threat to a free press than any consequence of a procedurally appropriate congressional investigation. I agree with the statement of value: that Mr. Trump has beguiled, bewildered and bullied the press to a point of real danger. Labeling the press the enemy, arguing for looser libel laws, threatening broadcast licenses, gleefully encouraging his followers worst assumptions about the role of reporters all but invites us to consider him a national security threat the way some of his own appointees came to. But Trump being Trump is not an excuse for lowering the threshold for First Amendment vigilance elsewhere. Indeed, we should raise our voices even louder when other institutions of government make public a more casual appreciation of the First Amendment. Making sure that Congress passes rules that limit the use of subpoenas to inspect or reveal reporter-source relationships should be a priority.

Much of what the public knows about President Trumps conduct in office comes from journalists who have not been cowed by the enormous power wielded by the executive branch and its investigative capabilities. The civic emergency within which we are working will be exacerbated if we excuse or brush off an abuse of power because it supports our side.

Marc Ambinder (@marcambinder) leads the Annenberg digital security initiative at the University of Southern California. He also teaches national security reporting.

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Did Schiff Poke a Hole in the First Amendment? - The New York Times