Category Archives: First Amendment

Free speech and its limitations are on Americans minds. In the past year weve seen Nazis and white supremacists rally in our cities, angry protesters chase provocateurs off of college campuses, a comedian wield a bloody effigy of the presidents severed head, and slurs and overt racial animus made a staple of political discourse. Controversial speech has people talking about what restrictions, if any, society can enforce on words we despise.

That inquiry isnt inherently bad. Its good for citizens to want to learn more about the contours of our constitutional rights. The dilemma is that the public debate about free speech relies on useless cliches, not on accurate information about the law.

Here are some of the most popular misleading slogans:

This slogan is true, but rarely helpful. The Supreme Court has called the few exceptions to the 1st Amendment well-defined and narrowly limited. They include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. First Amendment exceptions are not an open-ended category, and the Supreme Court has repeatedly declined to add to them, especially in the last generation. Merely observing that some exceptions exist does not help anyone determine whether particular speech falls into one of those exceptions. Its a non sequitur.

Imagine youre bitten by a snake on a hike, and you want to know rather urgently whether the snake is venomous. You describe the snake to your doctor. Well, not all snakes are venomous, your doctor responds. Not very helpful, it is?

Almost 100 years ago, Supreme Court Justice Oliver Wendel Holmes, Jr. coined a version of this now-familiar metaphor. Holmes used it to explain why the Supreme Court was upholding the criminal conviction of Charles Shenck, who was jailed merely for distributing materials urging peaceful resistance to the draft in World War I. Fortunately, the Supreme Court often led by Holmes himself retreated from this terrible precedent, eventually ruling that speech cant be punished as incitement unless it is intended and likely to provoke imminent lawless action. In other words, this favorite rhetorical apologia for censorship was used in the course of a decision now universally recognized as bad law.

Holmes usually misquoted slogan (he said that the law allows us to punish someone for falsely shouting fire in a crowded theater) is really just another way to observe that not all speech is protected and there are limits to 1st Amendment protections. As I said before thats not in dispute, but invoking the truism does nothing to resolve whether any particular speech falls within the well-defined and narrow exceptions to the 1st Amendment.

This popular saying reflects our contempt for bigotry, but its not a correct statement of law. There is no general 1st Amendment exception allowing the government to punish hate speech that denigrates people based on their identity. Things we call hate speech might occasionally fall into an existing 1st Amendment exception: a racist speech might seek to incite imminent violence against a group, or might be reasonably interpreted as an immediate threat to do harm. But hate speech, like other ugly types of speech we despise, is broadly protected.

Censorship advocates often tell us we need to balance the freedom of speak with the harm that speech does. This is arguable philosophically, but it is wrong legally. American courts dont decide whether to protect speech by balancing its harm against its benefit; they ask only if it falls into a specific 1st Amendment exception. As the Supreme Court recently put it, [t]he First Amendments guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.

Years ago the Supreme Court recognized a very narrow 1st Amendment exception for fighting words. If the exception still survives, its limited to in-person face-to-face insults directed at a particular person and likely to provoke a violent response from that person. It doesnt apply broadly to offensive speech, even though its often invoked to justify censoring such speech.

The Supreme Courts approach to constitutional rights can change very quickly. For instance, it took less than a generation for the court to reverse course on whether the government could punish gay sex. But for decades the court has been moving towards more vigorous protection of free speech, not less. Some of the most controversial and unpopular speech to come before the court like videos of animals being tortured, or incendiary Westboro Baptist Church protests at funerals have yielded solid 8-to-1 majorities in favor of protecting speech. Theres no sign of a growing appetite for censorship on the court.

Even as a free speech advocate and critic of censorship, Im happy to see a public debate about the limits of free speech. Any debate that raises consciousness about our rights can be productive. But the free speech debate should proceed based on facts and well-established law, not empty rhetoric. Familiarity with our rights and how they work is a civic obligation.

Ken White is a 1st Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los Angeles.

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Actually, hate speech is protected speech - LA Times - Los Angeles Times

In a letter to Trump on Tuesday, lawyers from the Knight First Amendment Institute at Columbia University called on the president to unblock people on Twitter (TWTR, Tech30). The group is representing two Twitter users who were blocked by the president after they tweeted critical statements to him.

The lawyers argue that Trump can't exclude people from engaging with him on Twitter based on their viewpoints.

"Your Twitter account is a designated public forum for essentially the same reasons that open city council meetings and school board meetings are," the lawyers wrote in the letter.

The letter is directed at the @RealDonaldTrump account, but lawyers say it applies to the @POTUS account as well.

When someone is blocked on Twitter, they are unable to follow the account, view the account's tweets when logged in to the service, or view tweets the account has liked.

Related: Trump appears to take his cues from Fox News in tweets on London attack

The letter raises interesting questions about how government social media accounts should be treated. The lawyers aren't saying all Twitter blocking violates the First Amendment, but if government officials use Twitter in an official capacity, they shouldn't be able to block people for expressing an opinion.

"While [the letter] relates to our most prominent Twitter user, the principles we seek to vindicate apply to all public officials and public entities that use social media to conduct government business and allow the public to participate," Katie Fallow, senior attorney at the Knight First Amendment Institute, told CNN Tech.

Nearly all high level public officials use Twitter -- many of them to engage in official business.

Courts have previously said public social media accounts used as public forums should not censor opinions. In Davison v. Loudoun County Board of Supervisors, the plaintiff argued that deleting a post on the Facebook page of a County Supervisor violated the plaintiff's First Amendment rights. The court agreed, saying the county can't discriminate or block people based on their views.

On Tuesday, press secretary Sean Spicer said Trump's tweets are considered official White House statements.

If Trump doesn't unblock Twitter users, Fallow said the Knight First Amendment Institute would consider a lawsuit.

CNNMoney (San Francisco) First published June 6, 2017: 6:03 PM ET

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Trump blocking Twitter critics raises First Amendment ...

Forbes

Tuned In To The First Amendment: Court Upholds Satellite Radio's Right To Choose Advertisers Forbes Business entities have endured increasingly strident criticism of their free speech rights in recent years. Thankfully, the US Supreme Court and most lower federal courts have declined to embrace critics' ideologically-driven perspective that the First ...

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Tuned In To The First Amendment: Court Upholds Satellite Radio's Right To Choose Advertisers - Forbes

Hundreds of people commented on Bernard Weisberger's widely shared article on the dangers Donald Trump poses to press freedom.

Your Turn: Red Alert The First [...]

President Donald Trump speaks during a press conference at the White House on Feb. 16, 2017. Trump berated the media repeatedly, calling CNN, The New York Times and other outlets "dishonest" and "very fake news" for reporting unfavorable stories about him. (Photo by Jabin Botsford/The Washington Post via Getty Images)

In a recent article for BillMoyers.com, Red Alert: The First Amendment Is in Danger, Bernard Weisberger wrote that Donald Trump is threatening freedom of speech in America with his frequent attacks on the press. In Trumps eyes, Weisberger writes, the most villainous persecutors are the mainstream fake news organizations that dare to oppose his actions and expose his lies. Weisberger reminds us that another US president, John Adams, despised criticism and, with the help of Congress, was able to crack down on the press. In the midst of a national emergency in 1798, Adams signed the Sedition Act, a direct violation of the Constitutions guarantee of freedom of speech. A number of journalists were prosecuted and locked up for speech critical of the government. Weisberger says it could happen again.

Hundreds of people wrote on Facebook page in response to the post; a sampling of these lightly edited comments can be seen below, including a response by Weisberger.

BY Bernard Weisberger | June 2, 2017

Excluding the media

Earlier this year at one of Sean Spicers off-camera briefings, The New York Times, CNN and other news sources were excluded. EXCLUDED from an administration-sponsored forum designed to facilitate getting news out! In my mind this is a clear violation of the First Amendment. John Connett

The covfefe heard around the world

Were already experiencing how Trump manipulates the press. For example, when a stupid typo (covfefe) can make the headlines on the first page for a week while shoving the Russian investigation to the back page or not mentioning it at all. Its only one of many examples of how Trump has succeeded Stay focused; we can walk and chew gum at the same time, so prove it and while investigating Trumps numerous missteps and misleads, stop making them the main story for days on end; always keep the Russian investigation on the front burner. Margi Underwood

What about Obama?

How quickly we forgot the Obama administrations war on whistleblowers. Good thing there wasnt any genuine trouble there. Michael Peck [Note: Peck made a number of related comments, which can be viewed in this thread.]

Mr. Peck, you are clutching at straws to make it seem that Obama was no better than Trump is now. Prosecuting those who broke a law against revealing state secrets is not the same as demanding a law that makes it a crime to criticize the president and thereby suppress all political opposition. Bernard Weisberger

One of many threats

The GOP is attacking our Constitution on every front rule of law, free and independent press, free and fair elections, First Amendment guarantee of free speech yet no one seems concerned that America is on the verge of becoming an autocracy! If you havent already, read Timothy Snyders On Tyranny: Twenty Lessons from the Twentieth Century for a reality jolt. Jack Wall

Like Russia or Turkey

Everyone who cares had better contact their senators and representatives because criticism is driving Trump off the cliff. They have already cut off the White House press corps, refuse to answer questions and advocated locking up protestors. How does that make us different from Russia or Turkey or any other authoritarian state? Trump is a baby. He is not strong. He would go to any lengths to shut down the negative press. Beware. It is up to you to protect our Constitution. Trump has never read it. Sheila Karlson

Stifling speech makes us all losers

We have a voice and need to keep using it. Everyone loses when free speech is stifled. Trump and his administration have been trying to undermine and control the media from the beginning of his campaign. We have to continually pull ourselves out of the weeds and not be duped by all the noise. Stay focused and do your research. Dont forget hate begets hate so be careful to not let anger become a distraction. Rhonda Donaldson Combs

Theodore Roosevelt on criticizing the president

To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public. Nothing but the truth should be spoken about him or any one else. Theodore Roosevelt quote, shared by Simone Carbone

Enough with Big Data: Knock on Doors and Talk to Voters

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Your Turn: Red Alert The First Amendment Is in Danger - BillMoyers.com

If you're fed up with President Donald Trump's early morning tweetstorms, you may be compelled to unfollow him or maybe even block his account, and apparently that's the same way he feels about you.

A free speech advocacy group from Columbia University complained on Tuesday that Trump blocks the Twitter accounts of people he doesn't agree with. That blocking constitutes a violation of the First Amendment, the Knight First Amendment Instituteargued, because the government has designated Trump's Twitter account as a public forum.

"Though the architects of the Constitution surely didn't contemplate presidential Twitter accounts, they understood that the President must not be allowed to banish views from public discourse simply because he finds them objectionable," Knight Institute Executive Director Jameel Jaffer said in astatementon Tuesday. "Having opened this forum to all comers, the President can't exclude people from it merely because he dislikes what they're saying."

Twitter'sblocking featureis meant to be used as "an effective way to handle unwanted interactions from accounts you do not want to engage with," according to the company. A blocked account cannot view tweets, lists of followers, likesor lists of the user who blocked it.

The Knight Institute demanded that Trump unblock the accounts of people whom he blocked because of their views, but it did not threaten legal action. No word on if muting -- which just blocks someone's tweets from appearing on Trump's timeline -- would be acceptable.

Whether or not access to Trump's tweets is protected under the First Amendment, it's clear that the government itselfconsiders his personal tweets to be public recordsunder the Presidential Records Act, which means that they must be preserved. In other words, if Trump doesn't unblock you, you'll eventually be able to visit the National Archives to see his tweets, assuming you still care about his early morning rants by the time they're preserved. (Or you could justlook at his Twitter pagewhile not signed into your account.)

Tom is PCMag's San Francisco-based news reporter.

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Does Trump's Twitter Blocking Violate the First Amendment? - Entrepreneur

First Amendment

Posted Jun 08, 2017 07:00 am CDT

By Debra Cassens Weiss

Shutterstock

A Wisconsin county is fighting a First Amendment lawsuit that challenges its attempt to regulate augmented reality games like Pokmon Go.

In a May 31 motion, Milwaukee County says there is no court precedent giving First Amendment protection to augmented reality games and the suit by app developer Candy Lab should be tossed.

Candy Lab is challenging a county ordinance that requires augmented reality game makers to get a permit before the games can be played in public parks.

Augmented reality technology superimposes computer-generated images on live smartphone video. Candy Lab uses the technology for its Texas Rope Em poker game. Players start with two random cards and must travel to designated locations to collect additional cards.

Candy Labs April 21 suit (PDF) says the Milwaukee County ordinance amounts to a prior restraint on its speech, is unconstitutionally vague, and restricts its speech on the basis of content. The Hollywood Reporter, the Associated Press, Courthouse News Service and the Register have stories.

Milwaukee County counters that Texas Rope Em isnt entitled to First Amendment protection because it doesnt convey any messages or ideas, the dismissal motion (PDF) says. The game has no plot, no storylines, no characters and no dialogue, the county argues.

Nor is there any federal court decision extending First Amendment protection to augmented reality games, the dismissal motion says.

Candy Labs complaint is full of ad hominem attacks on Milwaukee County and colorful allegations about all the ways in which the new ordinance violates its First Amendment rights, the dismissal motion says. But Candy Lab forgets one thing. There can be no First Amendment violation where there is no First Amendment right.

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Does First Amendment protect augmented reality games like Pokmon Go? Suit raises the issue - ABA Journal

National Constitution Center president and CEOJeffrey Rosen recently interviewedFloyd Abrams, the legendary First Amendment attorney of firmCahill Gordon who argued Citizens United and the Pentagon Papers case, among many, many others.

In the interview, Abrams discusses his new book, The Soul of the First Amendment, which explores how and why America protects free speech more often, more intensely, and more controversially than anywhere else in the world.

The program was part of Americas Town Hall, the Constitution Centers ongoing series of constitutional conversations and debates held in Philadelphia and across the country. Visit constitutioncenter.org/debate to learn more.

Todays show was engineered by David Stotzand edited byJason Gregory.It wasproduced by Nicandro Iannacci. The host of We the People is Jeffrey Rosen.

Continue todays conversation onFacebookandTwitterusing@ConstitutionCtr.

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Podcast: The soul of the First Amendment - Constitution Daily (blog)

By Win McNamee/Getty.

Even Donald Trump, who plans to stop tweeting approximately never and may even live-tweet during former F.B.I. director James Comeys testimony on Thursday like its an episode of The Bachelor, doesnt want everyone following him on Twitter. Like any half-sane person on the social-media platform, he has blocked a number of people from seeing or responding to his tweets. Unlike the rest of us, however, Trump is also president of the United States, and, as White House press secretary Sean Spicer said on Tuesday, Trump tweets should be considered official statements by the president. Which means that Trump may be violating the First Amendment rights of the people he has blocked.

Thats the argument being made by lawyers for two Twitter users who were blocked by the president, closing off access to what they say he is using as an official, public platform. This Twitter account operates as a designated public forum for First Amendment purposes, and accordingly the viewpoint-based blocking of our clients is unconstitutional, nonprofit organization Knight First Amendment Institute said in a letter to Trump on Tuesday. We ask that you unblock them and any others who have been blocked for similar reasons. Some legal experts are more dubious. Ken White, a First Amendment expert and former assistant U.S. attorney, says he finds the case ridiculous. Theres also an argument to be made that Trump is merely behaving within the terms of service of Twitter, a privately held company.

Whatever the merits of the case, it is undeniable that Twitter has become a central feature of the Trump presidency, and one of its greatest vulnerabilities. White House aides and allies have implored Trump to stop tweeting, to vet his posts with a lawyer first, or to at least limit what has become a deeply self-destructive habit. The tweeting makes everybody crazy, Trumps close friend Tom Barrack, the chairman of Colony Northstar, said at a Bloomberg conference this week. Theres just no gain in doing it.

In the past few days alone, he has attacked the London mayor, Sadiq Khan, after a terrorist attack that left seven dead, and appeared to undermine his own legal teams efforts to defend his immigration executive order before the Supreme Court, using a tweet to call it a TRAVEL BAN and drawing a remarkable rebuke from Kellyanne Conways husband, George, who noted on Twitter that the presidents online posts may have sabotaged his own case. Voters want Trump to stop tweeting, too: a new Politico poll says that 69 percent of voters say the president uses Twitter too much. Fifty-nine percent say his Twitter habit is a bad thing, and even 53 percent of G.O.P. voters say he should cut down on his use of the platform.

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Is Trump Violating the First Amendment by Blocking People on Twitter? - Vanity Fair

Portland Mayor Ted Wheeler took several positions on the First Amendment during the past two weeks.

On May 29, Wheeler asked the federal government to block a downtown Portland rally organized by right-wing protesters, saying visiting extremists had no legal right to hate speech. That request was denied by the feds, decried by civil liberties watchdogs, and sneered at by "alt-right" leaders.

Worse, he was wrong: The protections of the U.S. Constitution are designed to forbid the government, including Portland mayors, from deciding what citizens can and cannot say, even when it is deeply offensive.

By this week, Wheeler's office reversed itself again, saying the mayor had misspoken.

Wednesday, May 24 In a WW story on the street brawls that had already occurred between alt-right and antifascist groups, Wheeler's spokesman Michael Cox said: "Portland is going to continue with our strategy: honoring First Amendment rights while not tolerating acts of violence, vandalism or blocking transit."

Monday, May 29 Three days after a double murder on a MAX train, Wheeler called for revoking federal permits for the alt-right rally:

"My main concern is that they are coming to peddle a message of hatred and of bigotry. And I am reminded constantly that they have a First Amendment right to speak, but my pushback on that is that hate speech is not protected."

Wednesday, May 31 Wheeler wrote an op-ed in USA Today, backing away from his interpretation of the Constitution from a day earlier:

"I am a firm supporter of the First Amendment. While this planned demonstration is constitutional, it is highly irresponsible."

Monday, June 5 Cox said Wheeler didn't really mean hate speech was unconstitutional:

"He was being a being a bit imprecise. He was really talking about words meant to incite violence."

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Mayor Ted Wheeler Changed His Mind About the First Amendment, More Than Once - Willamette Week

NEW YORK President Donald Trump may be the nations tweeter-in-chief, but some Twitter users say hes violating the First Amendment by blocking people from his feed after they posted scornful comments.

Lawyers for two Twitter users sent the White House a letter Tuesday demanding they be un-blocked from the Republican presidents @realDonaldTrump account.

The viewpoint-based blocking of our clients is unconstitutional, wrote attorneys at the Knight First Amendment Institute at Columbia University in New York.

The White House didnt immediately respond to a request for comment.

The tweeters one a liberal activist, the other a cyclist who says hes a registered Republican have posted and retweeted plenty of complaints and jokes about Trump.

They say they found themselves blocked after replying to a couple of his recent tweets.

The activist, Holly OReilly, posted a video of Pope Francis casting a sidelong look at Trump and suggested this was how the whole world sees you. The cyclist, Joe Papp, responded to the presidents weekly address by asking why he hadnt attended a rally by supporters and adding, with a hashtag, fakeleader.

Blocking people on Twitter means they cant easily see or reply to the blockers tweets.

Although Trump started @realDonaldTrump as a private citizen and Twitter isnt government-run, the Knight institute lawyers argue that hes made it a government-designated public forum by using it to discuss policies and engage with citizens. Indeed, White House press secretary Sean Spicer said Tuesday that Trumps tweets are considered official statements by the president.

The institutes executive director, Jameel Jaffer, compares Trumps Twitter account to a politician renting a privately-owned hall and inviting the public to a meeting.

The crucial question is whether a government official has opened up some space, whether public or private, for expressive activity, and theres no question that Trump has done that here, Jaffer said. The consequence of that is that he cant exclude people based solely on his disagreement with them.

The users werent told why they were blocked. Their lawyers maintain that the connection between their criticisms and the cutoff was plain.

Still, theres scant law on free speech and social media blocking, legal scholars note.

This is an emerging issue, says Helen Norton, a University of Colorado Law School professor who specializes in First Amendment law.

Morgan Weiland, an affiliate scholar with Stanford Law Schools Center for Internet and Society, says the blocked tweeters complaint could air key questions if it ends up in court. Does the public forum concept apply in privately run social media? Does it matter if an account is a politicians personal account, not an official one?

San Francisco-based Twitter Inc. declined to comment. The tweeters arent raising complaints about the company.

38.907192 -77.036871

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Twitter users blocked by Trump say he's violating the First Amendment - New York's PIX11 / WPIX-TV