Category Archives: First Amendment

SOUTHERN INDIANA With the recent events in Charlottesville, many Americans are asking themselves: Does the first amendment protect all forms of speech?

According to Ted Walton, lawyer and partner at Clay Daniel Walton Adams, a law firm in Louisville, the First Amendment protections for the freedom of speech are wide and do include speech that is distasteful, offensive and hateful.

There is no hate speech exception to the First Amendment and in fact thats been reaffirmed by the Supreme Court very recently in an interesting case, Walton said.

That case, which was heard by the court earlier just this year, was Matal, Interim Director, United States Patent and Trademark Office vs. Tam, in which the Supreme Court unanimously ruled that an Asian-American band The Slants was legally allowed to trademark its name despite its potentially offensive nature.

This Supreme Court has really championed First Amendment rights and youve seen that with things like the campaign finance rulings that theyve passed," said Rhonda Wrzenski, associate professor of political science at Indiana University Southeast. "Theres been other rulings too where theyve allowed groups that werent necessarily popular to have more speech rights. So typically they make exceptions to the speech rights, theyve banned obscenities, defamations, inciting violence. Basically, threats.

Walton explained that, legally speaking, the First Amendment doesnt protect verbal acts

If you are using words in such a way that its directed at a particular person and meant to incite someone and beat somebody up, that can be a criminal act, Walton said.

Yelling Fire! in a crowded theater is a verbal act and intentionally creates a hazardous situation and is not protected by the First Amendment, according to Walton

Thats the dichotomy," Walton said. "You have folks that are standing up and saying they hate these groups [of people]. Its going to be protected speech. But if people are saying lets go drive a car into this group and somebody drives a car into that group, that person is not going to have First Amendment protection."

Originally posted here:
FIRST AMENDMENT: How far does it go? - Evening News and Tribune

The ugly and tragic events in Charlottesville, Va., which resulted in the death of one 32-year-old woman who was hit by a car, have sparked rallies across the country and the firing of at least one white nationalist marcher.

Trending hashtags on Twitter #nazihunter and #goodnightaltright and accounts like @yesyoureracist are calling on the public to identify people who attended the white nationalist rally in Charlottesville so they can be brought to justice. At least one alt-right marcher has already been fired by his company for reportedly attending the march; he worked as a cook for the Berkeley, Calif., hot dog chain Top Dog. I think its really important as a statement to show thats not tolerated, one customer told NBC Bay Area.

Experts say employers like Top Dog, who dont agree with views their employees express, have every right to fire those employees without any notice. The white nationalist marchers in Charlottesville chanted anti-semitic and racist slogans such as Jew will not replace us and blood and soil, a phrase used by Nazis, as they carried tiki torches and weapons, as they made their way onto the University of Virginias campus. They were opposing the removal of a statue of Confederate general Robert E. Lee.

Employees are legally protected from being fired based on discrimination, for their race, color, religion, sex, or national origin, according to the Civil Rights Act of 1964. But the First Amendment, which prohibits the government from interfering in the free exercise of speech and religion, does not protect employees who make statements or donations in favor of causes their employers disagree with from being fired, said Mark Tushnet, a professor of law at Harvard Law School.

But perhaps more surprising: Companies also have the right to terminate those who clashed with the white supremacist marchers. Attending a rally no matter what side youre on can get you fired. Private-sector employees are generally employed at the will of the employer, Tushnet said, and their employers can fire them as they see fit. That includes disagreement with what they say in public, he said. (One big caveat: The employer could open itself up to lawsuits if it fires someone in what turns out to be a case of mistaken identity.)

Who is at risk of getting fired all depends on the company. Journalists were warned not to attend the womens march in Washington, D.C. following Trumps inauguration. The editor of The Atlantic, for example, told employees they couldnt do anything that might be perceived as political, except vote. In 2011, two NPR journalists were fired for participating in Occupy Wall Street protests. But if you work for the American Civil Liberties Union? Taking time out to march for a social cause may even burnish your credentials.

Talking about sensitive politics at work, posting on social media, or making donations to a political cause can also be grounds for firing, said Paula Brantner, senior adviser at Workplace Fairness, an employment law nonprofit. Employees sometimes mistakenly think giving a donation to a candidate is private, but its public record, and can cost you your job if an employer says I dont want someone who supports this candidate working with me, she said.

There are exceptions to this rule. Some states including New York, California and the district Washington, D.C., have specific laws that protect employees from being disciplined for their political activities outside of work, said Merrick Rossein, a professor of law and former acting dean of CUNY Law School in New York, but even in those states, employers could argue that employees views or actions make them unable to do their job well.

And many employees dont even have to attend a rally to be terminated. The author of the now infamous Google memo about diversity was dismissed from his job for saying women are inherently unsuited for jobs in tech, in part because theyre prone to being neurotic. The employer is also perfectly fine to say we dont want people who have those opinions working for our company, Brantner said. The employee in question, software engineer James Damore, is reportedly exploring legal action against Google.

Im not going to be the one to tell people not to participate in rallies or support a candidate, Brantner added, but I want people to be aware there are potential consequences.

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Why the First Amendment won't protect Charlottesville white supremacists from being fired - MarketWatch

On Friday, August 11, I traveled to Charlottesville, Virginia to attend my co-clerks wedding. I was generally familiar with the controversy over the removal of the Robert E. Lee statue, but was not aware that white supremacist demonstrations were scheduled for the weekend. After the rehearsal dinner wrapped, I drove back to the hotel along Main Street. As we approached the Rotundathe center of the campus designed by Thomas Jefferson himselfthe traffic ahead suddenly slowed to a crawl. In the distance, we saw some lights. At first glance, it appeared to be a candlelight vigil, but we quickly realized what was going on. Hundreds of white nationalists with torches were walking down the steps of the Rotunda, chanting something incoherent, though the word Jews was distinctly pronounced. The sight was surreal; I was more stunned than afraid.

Our hotel was a few blocks away. We drove back to the room, and checked #Charlottesville on Twitter to see what was going on. Moments earlier, the police had declared the gathering an unlawful assembly, and broke it up. (Some reports suggest pepper spray was fired).

This scene, however, was but a mere prelude. Saturday at noon, the Nazis planned to assemble at Emancipation Park, formerly known as Lee Park, to protest the removal of the Lee statue. Unsure of what would happen, we decided to spend the day out of town at Montpelier, the estate of James Madison. There was a strange aspect of visiting the home of the primary author of the First Amendment, while miles away, that same First Amendment was enabling contemptible bigots to inflict violence and, tragically, the loss of life.

The Battle of Charlottesville will be studied in many quarters for many years, but this early entry will focus on the role played by the First Amendment.

Kessler v. City of Charlottesville

On May 30, Jason Kessler applied for a permit to hold a rally on August 12 in Emancipation Park. According to his attorneys at the ACLU and the Rutherford Institute, he chose that location because the Plaintiff wishes to communicate a message that relates directly to the Parkspecifically, his opposition to the Citys decisions to rename the Park, which was previously known as Lee Park, and its plans to remove a statue of Robert E. Lee from the Park. (I have been quite critical of the ACLU for its caving on certain free speech issues, but here, and with its defense of Milo Yiannopoulos, the organization is staying true to its historic mission). Kessler estimated that 400 people would attend, and stated that he absolutely intends to have a peaceful rally and his group would avoid violence. Initially, the City of Charlottesville granted Kesslers application, and also those of other counter-protestors. After the application was granted, however, business leaders in Charlottesville urged that the rally be moved to McIntire Park, which was a mile away. McIntire Park is much larger and has far fewer entrances. Thetopic was also discussed at City Council meetings. Members of the Council spoke out against the white supremacists on social media.

On August 7, the City revoked Kesslers permit, modif[ying] the application to allow a rally in the larger McIntire Park. The city cited safety concerns based on the number of people who were expected to attend Kesslers rally. Specifically, the government explained that holding a large rally at Emancipation Park poses an unacceptable danger to public order and safety. No sources were provided to justify those concerns that had come to the Citys attention. The government cited conservative estimates of no less than 1,000, with as many as 2,000 or more counter-demonstrators in attendance based on internet-based marketing efforts by the Plaintiffs. While Kesslers permit was revoked, the city did not revoke the permits of the counter-protestors, who were still approved to rally within blocks of Emancipation Park.

On August 10, Kessler sought a preliminary injunction in the U.S. District Court for the Western District of Virginia, barring the City from revoking the permit to protest in Lee Park. The motion stated that the City will suffer no harm to its legitimate interests if preliminary relief is granted. Regardless of where the demonstration takes place, the City has an obligation to secure and protect the safety of the demonstrators and the public. The lawyers added that [t]he City's expressed desire to provide security and protection at an alternative site because it would be easier to do so . . . is not a sufficiently substantial governmental interest to override Plaintiff's First Amendment right.

The following day, the City of Charlottesville filed a brief in opposition to Kesslers motion for a preliminary injunction. The government argued that the decision to move the plaintiffs protest from Emancipation Park to McIntire Park was justified without reference to speech content or the Plaintiffs viewpoint, [] was narrowly tailored to serve a significant governmental interest, and [] left open ample alternative channels for communication. The government added that Kesslers complaint does not contain sufficient allegations to support a claim that the City and Mr. Jones were motivated by fears about how counter-protesters will respond to the Plaintiffs rally.

The judiciary would disagree. After a hearing, on the evening of Friday August 11, Judge Glen E. Conrad issued a preliminary injunction, requiring the City of Charlottesville to allow the white supremacists to assemble in Emancipation Park. (The federal courthouse is about three blocks from that park). The court dismissed the governments speculation about the crowd size, concluding that there is no evidence to support the notion that many thousands of individuals are likely to attend the demonstration. Crucial to Judge Conrads analysis was the fact that Kesslers permit was revoked, but the permits of the counter-protestors were not:

The disparity in treatment between the two groups with opposing views suggests that the defendants' decision to revoke Kessler's permit was based on the content of his speech rather than other neutral factors that would be equally applicable to Kessler and those protesting against him. This conclusion is bolstered by other evidence, including communications on social media indicating that members of City Council oppose Kessler's political viewpoint.

Leave aside for now the significance of the court looking to statements on social media by members of government that conflict with the Citys official position to find animus. The courts analysis focused exclusively on the irreparable harm that would be faced by Kessler. There was scant mention of the possible harms to public safety. The closest the court came to addressing this point was noting that a change in the location of the demonstration would not eliminate the need for members of the City's law enforcement, fire, and emergency medical services personnel to appear at Emancipation Park. Instead, it would necessitate having personnel present at two locations in the City. But beyond these sentiments, the opinion hinged almost entirely on the fact that the plaintiffs were likely to succeed on the merits.

Free Speech on the Grounds

In hindsight, the value of the protestors speech was minimal; the cost to public safety was tragic. Shortly after Judge Conrads ruling was issued, the torch-lit demonstration began at the Rotunda. Many were injured as torches and other projectiles were thrown. Roughly twelve hours later, the riots would commence at Emancipation Park. It is rare that a judicial decision can have such an immediate and palpable effect on both public safety and individual liberty.

By the end of the horrific day, there were more than three-dozen injuries. Heather D. Heyer was murdered. Two Virginia State troopers died when their helicopter crashed outside of Charlottesville. (I observed the helicopter hovering over Emancipation park throughout the day). Shortly after the violence began, the Mayor of Charlottesville tweeted, For all watching events in crowded, downtown Cville: this is EXACTLY why City tried to change venue to McIntire-but court wouldnt allow. Had the protest been held at the larger McIntire park, perhaps the police could have kept a stronger control on crowd size, and automobile traffic. Perhaps not.

As a matter of First Amendment law, Judge Conrads opinion is correct. The Citys decision to revoke the plaintiffs permit, but not those of the counter-protestors, gave rise to a very strong presumption that the decision was made based on the content of the nationalists speech. My understanding is that the City merely overlooked revoking the other permits. This blunder, however, provided the basis of the courts decision.

Moreover, there was no concrete evidence that the crowd size would increase, beyond the speculation based on social media traffic. Merely asserting a generalized interest in safety, without more, cannot justify the revocation of the permit in this manner. Indeed, had the permit never been granted in the first place, the City could have avoided the presumption of animus against the plaintiffs bigoted speech. Much attention will be paid to how the Charlottesville Police Department managed the affair. The Citys attorneys also deserve some scrutiny. Had the case been lawyered better from the outset, the analysis would be much closer. If the government could have shown that in the larger park, traffic could have been better cordoned off, the requisite scrutiny may have been met. But here we are.

The Social Costs of the Bill of Rights

The constitutional questions here are difficult and complex. As usual, Justice Robert H. Jackson stated the issue far better than I possibly could. Here is an excerpt from his iconic dissent in very apt case of Terminello v. Chicago:

[U]nderneath a little issue of Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society's need for public order. . . .

But if we maintain a general policy of free speaking, we must recognize that its inevitable consequence will be sporadic local outbreaks of violence, for it is the nature of men to be intolerant of attacks upon institutions, personalities and ideas for which they really care. In the long run, maintenance of free speech will be more endangered if the population can have no protection from the abuses which lead to violence. No liberty is made more secure by holding that its abuses are inseparable from its enjoyment. We must not forget that it is the free democratic communities that ask us to trust them to maintain peace with liberty and that the factions engaged in this battle are not interested permanently in either. . . .

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

The Battle of Charlottesville illustrates, once again, the social costs imposed by the Bill of Rights.

See original here:
The First Amendment on the Grounds in Charlottesville - Lawfare (blog)

A 3D printer company founded by provocateur Cody Wilson, along with the Second Amendment Foundation, has filed for certiorari to the U.S. Supreme Court in a case asking that the company be allowed to post on its website instructions for using a 3D printer to manufacture a plastic gun.

Defense Distributed and the Foundation sued the State Department and other government persons and agencies back in May 2015 after the government threatened the company in May of 2013 for hosting the 3D gun manufacturing files.

Defense Distributed

The government maintains that such files are essentially armaments in and of themselves and subject to existing laws against the export of such munitions, with posting them in a place where foreigners could access them constituting such an illegal export.

The plaintiffs have sustained a series of losses in lower courts attempting to get a preliminary injunction against the government. Their plaintiffs contends the government has violated the company owners' First, Second, and Fifth Amendment rights with its actions.

Most specifically in this cert petition they have asked the Supreme Court to answer these questions:

1. Whether a court weighing a preliminary injunction must consider a First Amendment plaintiff's likelihood of success on the merits. 2. Whether it is always in the public interest to follow constitutional requirements. 3. Whether the Arms Export Control Act of 1976....and its implementing International Traffic in Arms Regulations ("ITAR")...may be applied as a prior restraint on public speech.

The petition insists that in denying their request for an injunction, the Fifth Circuit Court of Appeals has taken a dangerous stance in balancing the First Amendment against government's insistence that it has very good reason to violate it.

It is also worth noting the files in question, although no longer hosted by Defense Distributed, are universally available on the internet from many other sources.

Defense Distributed is represented in this case by Alan Gura, who won two previous Second Amendment victories at the Supreme Court in 2008's Heller case and 2010's McDonald. Gura and his co-counsels argue in the petition the Fifth Circuit should not have been allowed to have:

simply declared that the government's asserted interests outweighed the interest in securing constitutional rights....considering the merits of preliminary injunction motions is not optional. Of all contexts, the merits cannot be optional in First Amendment cases. It should ordinarily go without sayingand so it must now be saidthat federal courts cannot dismiss the Constitution's primacy in our legal system...

The government can be relied upon to assert the necessity of every prior restraint. The public must be able to rely on the courts to test these assertions for constitutional compliance.

Gura argues the government's rules defining what falls under ITAR are completely ambiguous and confusing. The process for learning whether or not those rules apply to you is a similar mess of ambiguity and overreach. And the government's ability to stonewall drags out cases like that of Defense Distributed for years, Gura writes.

The petition also details the history of interpretation of ITAR over the past decade in the (proper) direction of not using it as a prior restraint on expression or speech on American citizens when it involved non-classified information.

The Fifth Circuit, in its decision on the appeal of an initial district court loss for Defense Distributed, was pretty blatant in saying the First Amendment doesn't count here because the government says so:

Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security.

Gura finds that assertion unsatisfying, leaning on a Fifth Circuit dissent from the panel's majority opinion. Dissenter Judge Edith Jones:

noted that "[i]nterference with First Amendment rights for any period of time, even for short periods, constitutes irreparable injury,"...and that "Defense Distributed has been denied publication rights for over three years,"...She then found it "a mystery" why the majority was "unwilling to correct" the district court's "obvious error" in applying only intermediate scrutiny to the content-based prior restraint at issue...

[Judge Jones believes the State Department's censorship of Defense Distributed] "appears to violate the governing statute, represents an irrational interpretation of the regulations, and violates the First Amendment as a content-based regulation and a prior restraint."

Jones also pointed out how weirdly ineffectual is the government's desired power to violate the First Amendment. The government admits stating or publishing that same information at a conference in the U.S., or in a domestic publication or library, would be protected speech if they somehow could insure no foreigners accessed it. Foreigners could, of course, access such information on the Internet, an act considered a blow against national security so severe it trumps the First Amendment. That is, if "foreigners can't hear this speech" is to be held as true and important, the power to restrict speech applies far beyond the Internet.

The Fifth Circuit's decision to ignore the First Amendment is dangerous far beyond the simple question of publishing files for printing plastic armaments on the internet, Gura argues. That decision:

has unsettled the established norms for adjudicating preliminary injunction requests. Gone is this [Supreme] Court's careful balancing test, with its reliance on the merits. In its place, a wholly arbitrary system: The court will consider the merits, when it wishes to do so. Whether the merits might reveal a constitutional violation is less important, because the court will enforce the Constitution only when it seems to be a good idea.

What are courts, attorneys, and the public to make of this innovation?

Critics of this or that opinion often allege that a court has followed an extra-constitutional agenda. For a court to declare that it has done just thatin ignoring a content-based prior restraint no lessraises basic questions about the judiciary's function. The public is left with no way of knowing when a judge would declare some interest more important than the Constitution, or even bother hearing the merits of plainly significant pleas to enjoin unconstitutional conduct.

Absent a merits inquiry, a court balancing the unknown equities is reduced...to declaring whether an abstract interest in constitutional rights is more or less important than an equally abstract government interest. And if the court then decides, as did the majority below, that security > freedom, that ends the matter. The logic is inescapable; where applied, it bars any injunctive relief.

Expressed that way, the danger of letting the Fifth Circuit decision stand should be clear even to Americans who don't understand why anyone, domestic or foreign, needs a computer file that helps them print a plastic gun at home.

The Supreme Court should take up the case, and let lower courts know they can't, absent a fair consideration of the merits, blithely decide that security beats the First Amendment in court.

Reason TV interviewed Cody Wilson of Defense Distributed last year:

Go here to read the rest:
Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment? - Reason (blog)

Pittsburgh Post-Gazette

March on Google: Self-proclaimed 'First Amendment supporters' to ... Pittsburgh Post-Gazette The group, reacting partly to a memo written by ex-Googler James Damore, will meet at Google offices across the country. Pittsburgh Prepares For March On Google By Self-Proclaimed First Amendment Supporters90.5 WESA March on Google comes to Pittsburgh this weekend , one of eight citiesWTAE Pittsburgh Google's Pittsburgh Offices Targeted In Nationwide ProtestsCBS Pittsburgh / KDKA all 13 news articles »

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March on Google: Self-proclaimed 'First Amendment supporters' to ... - Pittsburgh Post-Gazette

Of the harrowing images televised nationwide from Saturdays white nationalist demonstration in Charlottesville, one of the more chilling sights, amid hours of raging hatred and mayhem, was of camo-clad militiamen on the streets, girded for combat in tactical vests and toting military-style semiautomatic rifles.

Photos and video of the heavily armed cadre a relatively small force commanded by a 45-year-old machinist and long-ago Navy veteran from western Pennsylvania spread rapidly on social media, raising fears the clash of hundreds of neo-Nazis and counterprotesters might end in a bloodbath.

The show of strength was about allegiance ... to the Constitution, particularly the First Amendment, said Christian Yingling, leader of the Pennsylvania Light Foot Militia. He said he and his troops convoyed in to Charlottesville early Saturday to defend free speech by maintaining civic order so everyone present could voice an opinion, regardless of their views.

The fact that no shots were fired, Yingling said, was a testament to the discipline of the 32 brave souls serving under me during this particular operation. In a telephone interview Sunday, he sought to dispel the absurd idea in the publics mind that his group of patriots was allied with or sympathetic to the white nationalists.

Many militia units in the Mid-Atlantic and Northeast have mutual defense agreements, Yingling said. Because he has overseen several militia responses at contentious gatherings in recent months helping keep the peace at right-wing public events in Boston; in Gettysburg and Harrisburg, Pa.; and at an April 29 rally in Harrisburg for President Trump Yingling said the commander of a Virginia militia asked him to organize and take tactical command of the Charlottesville operation.

(Zoeann Murphy/The Washington Post)

He had never handled anything like this, Yingling said. And given the volatility of the event, it was not a good place to start.

When his group arrived in Charlottesville, we put our own beliefs off to the side, Yingling said. Not one of my people said a word. They were given specific orders to remain quiet the entire time we were there.... Our mission was to help people exercise their First Amendment rights without being physically assaulted.

He added: It was a resounding success until we were just so drastically outnumbered that we couldnt stop the craziness. It was nothing short of horrifying.

In the interview and in a Facebook Live monologue Sunday, Yingling detailed why the militia members participated, how he went about organizing their appearance, and how his group was received which he said was not with much welcome.

Jacka---s, was how he described both sides, meaning the white nationalists, who billed the gathering as Unite the Right, and the counterprotesters, many marching under the banner of Antifa, for anti-fascist. Yingling also criticized police, saying that officers were poorly prepared for the violence and not assertive enough in combating it and that they should have enlisted the militiamen to help prevent the mayhem.

Instead, about five hours after Yingling and his platoon arrived at 7:30a.m., they were ordered by police to leave the area, he said. By 1:42p.m. when a man reputed to be a neo-Nazi adherent allegedly drove his car intentionally through a crowded pedestrian mall and into a sedan, killing a 32-year-old woman and injuring 19 others the militiamen were far from Charlottesville, headed back to their encampment 50 miles northeast of the city, Yingling said.

He said several of his troops were battered and bloodied, having been attacked by people on both sides of the demonstration, yet they did not retaliate.

He said he does not know the suspect in the car killing, James Alex Fields, 20, of Ohio, or any of the white nationalists involved in Saturdays demonstration.

Virginias secretary of public safety, Brian Moran, rejected the assertion that police were ill-equipped to handle Saturdays unrest. To say we were unprepared or inexperienced is absolutely wrong, Moran declared Sunday, adding, We unequivocally acted at the right time and with the appropriate response.

He said: The fighting in the street was sporadic. But soon after it started, we began to have conversations about when to go in. The concern was that the fighting was in the middle of the crowd and that if we went in there, we would lose formation, lose contact. We would be putting the public and law enforcement in jeopardy.

Saturday marked the first time in 28 years the Virginia National Guard was used to help quell a civil disturbance. The militia showed up with long rifles, and we were concerned about that in the mix, Moran said. They seemed like they werent there to cause trouble, but it was a concern to have rifles of that kind in that environment.

Authorities also were worried that Yingling who was carrying a Sig Sauer AR-556 semiautomatic weapon and his troops would be mistaken for National Guard members by the public, Moran said.

Yingling called the weapons one hell of a visual deterrent to would-be attackers from either side. Although the weapons magazines were fully loaded, he said, the days standard procedure was that anyone who was carrying a long gun was not to have a round in the chamber. Now, our sidearms are generally chambered and ready to go.

The Pennsylvania Light Foot Militia is one of several Light Foot Militia outfits in states nationwide. In addition to having overall command of units in Pennsylvania, Yingling said, he is the leader of his home unit, the Light Foot Militia Laurel Highlands Ghost Company, based near his home in New Derry, Pa., about 50 miles east of Pittsburgh. The Ghost Company has about a dozen members, he said.

The Southern Poverty Law Center, a nonprofit watchdog group that monitors extremist organizations, classifies 276 militias in the country as antigovernment groups, meaning they generally define themselves as opposed to the New World Order, engage in groundless conspiracy theorizing, or advocate or adhere to extreme antigovernment doctrines.

The Pennsylvania Light Foot Militia is on the list, as are Light Foot Militia units in South Carolina, Utah, Wisconsin, Idaho, Nevada and Oregon. But the SPLC points out that inclusion on its list does not imply that the groups themselves advocate or engage in violence or other criminal activity, or are racist.

Yingling said he abhors racism and that his company, which usually trains in the woods once or twice a month, is open to prospective members of all races and creeds, although its active roster is entirely white.

A Navy veteran of Operation Desert Storm, Yingling said he was an aviation machinists mate for three years before leaving the service in 1993 as a petty officer third class, meaning he was four rungs up the enlisted ranks.

I joined the military to avoid the addictive lifestyle of my parents, he wrote in a Facebook post. I was raised in a VERY dysfunctional, abusive home. The military gave me the structure I needed. After his discharge, however, I quickly fell right into the lifestyle I had known all my life with my parents. I quit going to church, I started using drugs and alcohol, heavily becoming addicted to both. It started a... downward spiral which led to an eventual suicide attempt.

Then, in 2008, President Barack Obama was elected. Yingling said he was drawn then to right-wing, anti-government extremism.

I left my old addictive lifestyle behind and traded it for the lifestyle of a patriot, he wrote. I had found my calling as a militiaman. I founded The Westmoreland County Militia, Regulators 1st Battalion with two fellow patriots. He later left the unit and formed the Laurel Highlands Ghost Company.

No, I dont think the government, as a whole, is out to get us, he said in the interview, but a lot of people in society are self-absorbed. They dont get involved with the Constitution and defending the freedoms that it gives us. We need to defend those freedoms for everyone, on all sides of the political debate or eventually well lose them.

About a month ago, when he learned the Unite the Right event was being planned, Yingling said, I, like most militia commanders, did not want to touch it with a 10-foot pole for fear of being wrongly perceived as an ally of white supremacists. But after talking it over with a fellow Light Foot commander, in Upstate New York, he decided he had a duty to defend the right of free speech on the streets of Charlottesville.

Through Facebook and various militia chat rooms, he said, he recruited militia members from various East Coast units and organized a rendezvous Friday night at a farm in Unionville, Va. He said he was angered and embarrassed that only 32people showed up. Many others, he said, were afraid of being publicly branded as racists.

We knew what we were walking into, he said on Facebook Live. We knew what the results were going to be. And yet we walked in anyway. We werent afraid. And we didnt give a good damn about our image or about what anybody thought about us. And I still dont.

Originally posted here:
Militiamen came to Charlottesville as neutral First Amendment protectors, commander says - Washington Post

The hateful signs and speech of the infamous Westboro Baptist Church have become synonymous with soldiers funerals.

As deplorable as their message is, it is protected under the First Amendment and must remain so.

In that vein, the Eighth Circuit Court of Appeals struck an appropriate balance in upholding Nebraskas funeral picketing law as constitutional in a ruling released Friday morning. The 500-foot buffer allows funeral-goers space to grieve while not infringing upon protesters right to free speech.

Even the churchs despicable rhetoric merits protection. The First Amendment makes no distinction between popular speech productive to society and speech that is abhorrent. Celebrating the deaths of soldiers as some twisted sign that God is punishing the United States for tolerating homosexuality is certainly the latter.

The case that came before the court centered on the 2011 funeral of Navy SEAL Caleb Nelson in Omaha. There, Westboro members were still allowed to picket and share signs that read God Hates Fags with passersby. Nelsons family and friends, meanwhile, could grieve without being forced to consume Westboros venom as should be the case.

As Judge Bobby Shepherd wrote in the opinion: The First Amendment guarantees free speech, not forced listeners.

"This law strikes the appropriate balance between First Amendment free speech rights and the rights of grieving families to bury their loved ones in peace," Nebraska Attorney General Doug Peterson said in a release after the ruling.

Though first written more than 230 years ago, the First Amendment remains under a microscope for interpretation in the present era. The boundaries of speech and expression are always being pushed by a new group, aiming to win over hearts and minds, regardless of the content of that message even if its one we wish could be silenced.

Part of the irony of Westboros ongoing crusade to parlay the deaths of soldiers into a megaphone for the churchs message of hate is that the freedoms for which these men and women fought and died still protect Westboros right to spread its vile opinions.

Judges and attorneys constantly have to take into consideration speech and dissemination the Founding Fathers never would have dreamed of seeing and few entities are more responsible for that evolution than Westboro. After all, the churchs success in a previous court case invalidated Nebraskas previous 300-foot buffer, which was replaced by the 500-foot limit upheld this week by the courts.

The outcome of Fridays ruling was the best of both worlds preserving families chance to grieve in peace without restricting Westboros ability to deliver its appalling message.

Read more:
Editorial, 8/13: Court strikes right balance on Westboro ruling - Lincoln Journal Star

ANALYSIS/OPINION:

Several Republican governors have joined President Trump in an exclusive but growing club: They are being sued by left-wing organizations for removing persistent critics from their Facebook or Twitter pages.

In many cases, were talking about trolls, the people who post inflammatory, irrelevant or offensive comments. The latest to face the trolls wrath is Maine Gov. Paul LePage, who the American Civil Liberties Union (ACLU) sued last Tuesday in U.S. District Court for the District of Maine on behalf of two clients who say they were unconstitutionally blocked from Mr. LePages Facebook page.

Mr. LePage responded immediately on his Facebook page: This page was started by volunteers in the governors first campaign to support his candidacy. After that time it became his official political page. This page has never been managed by taxpayer-funded state employees. Under the about section of this Facebook page it states that is Paul LePages official politician page not a government page.

Well, so what, the ACLU suit says, in effect. Youre a public figure and must open yourself to any and all criticism.

On Aug. 1, the ACLU sued Maryland Gov. Larry Hogan on behalf of four disappointed commenters. The complaint, filed in U.S. District Court for the District of Maryland, includes a request for an injunction to block any more removals and to force the reinstatement of several hundred blockheads, er, Mr. Hogans spokespeople call the suit frivolous and note that his site reserves the right to block any comment that is profane, obscene, vulgar, pornographic, defaming, threatening or amounts to spam or repetitiveness. In February, his office reported that they had blocked 450 people for abusive language or spamming.

The ACLU managed to find some clients whose posts they say were none of the above, but the complaints enforcement would effectively stop any blocking.

On July 11, the Knight First Amendment Institute at Columbia University filed a federal suit against President Trump and two aides (former press secretary Sean Spicer and social media director Dan Scavino) in the Southern District of New York for blocking users critical of him from his private Twitter account. The key word here is private. Mr. Trump had the account before becoming president, and the First Amendment does not apply to non-governmental entities. It doesnt matter how big the audience is.

Mr. Trump has in excess of 33 million followers on his @realDonaldTrump Twitter feed and has tweeted more than 35,000 times since first starting the account in 2009, according to USA Today.

One of the plaintiffs, Rebecca Buckwalter of Washington, D.C., is a fellow at the Center for American Progress, a George Soros-funded left-wing think tank. She complained that her response to a June 6 Trump tweet was removed.

Trump: Sorry folks, but if I would have relied on the Fake News of CNN, NBC, ABC, CBS washpost or nytimes, I would have had ZERO chance winning WH.

Buckwalter: To be fair you didnt win the WH: Russia won it for you.

Should Mr. Trump be forced to keep her conspiracy theory tweet on his non-governmental site?

On July 31, the ACLU of Kentucky sued Kentucky Gov. Matt Bevin in the U.S. District Court for the Eastern District of Kentucky for removing trolls from his Facebook page. Two blocked users are demanding that they and 600 other blockees be reinstated.

Bevin spokesman Woody Maglinger responded that blocking these people in no way violates their right to free speech under the U.S. or Kentucky Constitutions, nor does it prohibit them from expressing their opinion in an open forum.

Not all cases involve Republicans. A federal judge ruled on July 25 that Loudoun County, Virginia county board Chairwoman Phyllis J. Randall, a Democrat, committed a cardinal sin under the First Amendment when she blocked a constituents criticism for half a day from her official Facebook page.

But in his ruling, U.S. District Judge James Cacheris also said public officials are allowed to moderate comments to defend against harassment and against those who take over an online forum in such a way that violates the free speech rights of others.

Given the prevalence of online trolls, this is no mere hypothetical risk, the judge said.

The issue of public officials social media management will eventually wind up at the Supreme Court, where perhaps a clear distinction will be made between public and private communications.

Until the courts definitively rule, troll-beset lawmakers might want to have different social media accounts for different purposes, like Maines Gov. LePage:

This FB page has always noted it is for those who support the governor. This page is not a tool for organized, nationally-connected political protests against the governor. Those organizations wishing to attack and protest Gov. Paul LePage can create their own pages.

Robert Knight is a senior fellow for the American Civil Rights Union.

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Beyond the First Amendment - Washington Times

Two Chinese tourists were arrested last Sunday after taking photos of each other giving the Nazi salute in front of the Reichstag building in Berlin. Unlike in the United States, certain types of speech are illegal in Germany, including almost any Nazi symbolism.

Supposed comedian Chelsea Handler, weighed in on the story, suggesting the U.S. be more like Germany, which would require eliminating the First Amendment.

Most people in a civilized society agree that Nazi salutes are offensive, even if given in jest. Labeling speech that we all agree to be wrong as "hate speech" and then banning it by law might seem like a simple solution to the problem of occasionally hearing things that decent people don't like. However, passing laws to weaken our own rights in response to somebody else's poor behavior is not the solution.

If we want to be aware of what can transpire on the fringe of society, everyone should be free to express all of their opinions, even the ones that offend us. The Constitution treats us as grown-ups, depending on us to have the sense to reject opinions that are genuinely evil.

Take the Westboro Baptist Church for example, a group consisting mostly of family members. They scream obscenities and anti-gay slurs as they picket events such as papal visits and the funerals of service members killed overseas. They offend virtually everyone on earth. America, with its population of over 300 million people, seems to have collectively ostracized the 70-member group despite our government never making it a law to do so. No one is terribly worried that their annoying behavior is causing a trend.

Making any type of speech illegal would in itself destroy the First Amendment, which contrary to the claims of some washed up politicians, contains no exception for hate speech. Nor should it. The definition of hate speech is subject to continuous change. There are words no decent person will say, but the banning of even one word would eliminate the right to freedom of speech, replacing it with a subjective list of prohibited terms to which the government could and would add to over time.

It is strange that those who depend on free speech to make their living are often its most vocal opponents. Handler, for example, wants to ban offensive speech, but she engages in it quite often, as when she made fun of the first lady's accent, claiming Melania Trump barely speaks English. It's her right to tell that joke, of course. But it might not be if she had her own way.

Today's "safe space" culture has created the concept that words -- not threats, mind you, just unkind words -- are equivalent to physical harm. It just isn't so. And the First Amendment is a treasure, even if it does subject us all to Kathy Griffin posing in ISIS-inspired photoshoots, Johnny Depp expressing his envy of John Wilkes Booth, and Snoop Dogg shooting a clown dressed as Trump in a music video. As always, the proper answer to offsensive speech is more speech, not violence or government coercion.

At a moment when leftists can't seem to get enough of speaking out against the current administration, their sudden turn against the First Amendment is a puzzling and troubling development. Their short-sighted talk of giving our government unacceptable authority to regulate our personal lives should be rejected like all the other bad ideas that people are free to express.

Alana Mastrangelo is a political activist and writer.

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Liberals need to stop messing with the First Amendment - Washington Examiner

WASHINGTON (Sinclair Broadcast Group)

The American Civil Liberties Union (ACLU) is representing individuals in Kentucky, Maine and Maryland who argue that the governors in those states have violated the First Amendment by deleting comments and blocking users on the governors' Facebook and Twitter pages.

The plaintiffs in each case argue that they were shut out of a public political forum because they had been critical of the governors' policies or expressed views were at odds with their state's chief executive. By blocking comments and users, the plaintiffs say their governor has violated their right to free speech and their right to petition the government for redress of grievances.

One of the issues at stake is whether public figures can use their social media accounts to sanction other users based private preferences. More fundamentally the cases could determine whether political speech is protected in the social media age.

"In this new world of social media, government officials and constituents are using these platforms as a powerful tool to connect with each other," said Meagan Sway, Justice Fellow with the Maine ACLU chapter. "But when that happens, the First Amendment applies."

Maine Gov. Paul LePage (R) has been accused of using his Facebook account in an official government capacity to conduct official government business. He has also taken advantage of the platform's features to block certain constituents. According to the ACLU, "that's unconstitutional censorship."

The arguments are similar in Kentucky and Maryland, where numerous constituents have come forward to challenge the 21st century version of being banished from the public commons. In Utah, the ACLU has put the state's federal congressional delegation on notice after similar complaints from constituents.

Already, experts anticipate the cases in Kentucky, Maine and Maryland will shape the environment for the high-profile case involving President Donald Trump blocking Twitter users.

The Knight First Amendment Institute filed suit against the president in June arguing it is unconstitutional for an elected public official using a "designated public forum," like Twitter, to block speech just because it is critical or disagreeable.

"It's a new area of law," Sway said in an interview with WGME News. "We think courts will agree with us ... that this is an open platform, that the government cannot kick people off just because [they] dont agree with them."

Roy Gutterman, director of the Tully Center for Free Speech at Syracuse University, said the pending social media cases beg for a "firm declaration" from the courts that blocking political speech on social media a violation of the First Amendment.

"If you're a government official, your social media is an extension of your office and you cant block people for innocuous reasons, or for political reasons" he emphasized. "If you're a government official, especially a governor, I don't think you can bifurcate your personal speech from your official speech."

In Maine, LePage has worked to do just that and distance his official position from his official social media accounts.

A few weeks ago, the governor's "about" page on Facebook was updated. It now states that the page is "official-but not managed by gov't officials," was a fan page but is now home to LePage supporters. However, the page was verified on behalf of the governor and LePage even opted into Facebook's "Town Hall" feature, which helps connect constituents and their government representatives.

Shortly after taking office in 2015, Gov. Larry Hogan of Maryland set up Facebook and Twitter accounts and by January 2017, Hogan had reportedly blocked 450 people.

"He didnt like [the posts], but thats not enough," Legal Director for ACLU Maryland Deborah Jeon told WBFF earlier this month. "People have a First-Amendment right to their own opinions. And when the governor establishes a forum for speech between constituents and the government, then he has to listen to what they have to say, whether or not he likes it."

The governor never responded to the ACLU's letter asking him to reinstate the seven individuals banned.

Hogan reacted to the lawsuit saying it was "frivolous" and motivated by partisan politics.

"Its silly, its ridiculous," Hogan told reporters last week. "We have about a million people a week on our Facebook page. Four of them were blocked for violating our Facebook policy and now the Maryland Democratic party got them to file suit with the ACLU."

The governor has defended blocking constituents on the basis of his office's "social media policy," which ACLU claims violates the state's social media policy. Under Hogan's personal policy, comments and users can be blocked if they are deemed irrelevant to the governor's announcements or initiatives, and if the users engage in a "Coordinated Effort" to petition the office. The office claims the right to block users and comments "at any time without prior notice or without providing justification."

"I don't buy that argument," he noted, adding that such arguments get into "untested" legal areas. "This is public business. This is clearly a first amendment issue with political speech implications and the right to petition government."

In Kentucky, Gov. Matt Bevin has argued that the only comments or users being blocked are "abusive trolls" and others who are posting obscene or inappropriate content.

"Gov. Bevin is a strong advocate of constructive dialogue," his communications directed said responding to the ACLU suit. "Blocking individuals from engaging in ... inappropriate conduct on social media in no way violates their free speech right under the U.S. or Kentucky constitutions, nor does it prohibit them from expressing their opinion in an open forum."

According to the plaintiffs, there are "hundreds" of users who have been permanently blocked by Bevin, including "Kentuckians Against Matt Bevin," a public Facebook group with over 1,900 followers.

One of the plaintiffs in the case, Mary Hargis, noted that while she has been critical of the governor on certain issues she was "shocked" to discover he had blocked her. "I may not have voted for Governor Bevin, but I'm one of his constituents," she said. "He shouldn't be permanently dismissing my views and concerns with a click."

As these suits are litigated and President Trump squares off against his blocked Twitter followers, it is unclear how the courts will rule, though U.S. courts tend to rule firmly in favor of protecting political speech.

"If these cases keep getting litigated and appealed ... I can actually see the Supreme Court weighing in on this a year or two down the road," Gutterman suggested. "I think it would be a soft ball."

Just recently the Court handed down its first major decision on a social media case in June, ruling unanimously that the First Amendment protected an individual from being refused access to social media. The question before the court was whether a convicted sex offender could be blocked from Facebook , Twitter and other popular social media sites.

The Supreme Court ruling is likely to provide a strong argument for the plaintiffs as the Facebook blocking cases move forward.

"Political speech ... has always been the highest level of First Amendment activity," Gutterman stated. "There's clear First Amendment action here. You've got government activity, government action and citizen expression."

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First Amendment lawsuits pile up against governors who block ... - WJLA