Category Archives: First Amendment

Now that Dr. Scott Gottlieb is safely installed as FDA Commissioner, we at DDLaw can end our moratorium on blogposts about First Amendment issues. There was no way we wanted to give his opponents any ammunition by saying nice things about Dr. Gottlieb before his confirmation.

Not so now.

Given what Dr. Gottlieb has said and is saying we doubt that the FDAs absolutist ban on truthful industry speech about off-label uses (pejoratively called promotion) will continue much longer in its current form. For instance, on the FDAs website, Dr. Gottlieb is quoted here as giving a speech saying:

The question we need to ask ourselves is this: Should a patient receive one or even two-year-old care just because the wheels of my government institution and its meticulous work may take longer to turn than the wheels of clinical science? Some people believe that patients should be treated only according to the clinical evidence included in a drugs approved indications. Yet this evidence may be two or maybe three years old, especially in a fast-changing field like cancer, where off label use of medicines provide important opportunities for patients to get access to the latest clinical practice and for doctors to tailor their patients treatment plans based on medical need and personal preferences.

Efforts to limit prescription and scientific exchange to indications only specified on a label could retard the most important advances in 21st century medicine. The development and deployment of drugs is becoming more and more closely linked to understanding of mechanism of action, which means that physicians can use drugs in more sophisticated ways that cannot all be anticipated on a label, or easily or quickly studied in prospective studies. . . . More important, medicine is becoming more personalized as tools like genomics make it possible to tailor treatments on an individual basis. Physicians will not be able to always wait for FDA to approve a new label for every one of their patients, and drug companies will not be able to conduct a trial to explore every possible contingency. In the future, personalization of care could mean that we will have much more off-label use of new medicines, guided by the latest literature, at least until our regulatory approaches are able to fully adapt to a different paradigm where treatment is highly specific to individual patients. Yet policy forces are tugging in exactly the opposite direction by placing restrictions on the exchange of some of the most pertinent information.

(Emphasis added). Defendants in cases involving off-label-use-related allegations should consider having their FDA experts review and, if appropriate, rely upon the current FDA Commissioners positions particularly to rebut contrary views offered by former FDA officials.

Dr. Gottliebs non-FDA writings show similar solicitude for scientific speech whether or not that speech originates with FDA-regulated manufacturers. In an article for the American Enterprise Institute, Dr. Gottlieb criticized FDA policies that prohibited a manufacturer with a drug undergoing supplemental FDA approval for a new use from distributing the findings or educating doctors on the new use through sponsored medical education. [A] more measured approach to the regulation of promotion would allow sharing of useful information that falls within the bounds of appropriate clinical care.

Those who pursue a rigid adherence to restrictions on the exchange of off-label information, and who fail to recognize that the sharing of scientific evidence can sometimes have important public health benefits, are guilty of pursuing a rigid standard that does not take measure of the consequences. . . . [E]stablishing the FDA label as the only determinant for acceptable scientific speech loses sight of the fact that these labels are slow to incorporate important medical results about the effectiveness of medical products. They are not the sole basis for medical practice.

In another AEI article a few years later shortly after the government lost United States v. Caronia, 703 F.3d 149 (2d Cir. 2012) Dr. Gottliebs criticism of the FDAs prohibition of truthful speech about off-label uses was even more pointed.

When this [off-label] speech is truthful, nonmisleading, and promulgated in an educational context, it is quite possible that the speech would be deemed constitutionally protected by the courts under doctrines that recognize commercial speech as being subject to First Amendment considerations.

(Footnote omitted). Basically, Dr. Gottlieb took issue with whether scientific speech concerning off-label uses could ever be considered illegal promotion:

A core principle of Americas constitutional speech protections is that the government should not establish what is orthodox, especially when it comes to politics, the arts, religion, and science. The founders recognized that these matters are by their nature iterative, and that it would be dangerous in a democratic society for the government to use its resources to pick a side in these debates. Matters that are subject to their own evolution a core feature of how new science unfolds are better addressed by adding voices to the debate, not suppressing them.

Dr. Gottlieb even urged FDA regulated manufacturers to stand up and challenge the constitutionality of off-label informational restrictions promulgated by the FDA the agency he now leads:

[T]he drug industry needs to be willing to take the prerogative to challenge the facts in some of these cases and have that day in court. When investigations turn on the sharing of truthful, nonmisleading information about widely accepted uses of drugs, in fast moving fields like cancer, there is a legitimate question about whether public health is being served by suppressing this sort of information. However, until these cases are challenged in court, there will remain ambiguity around where the appropriate lines rest, what speech is constitutionally protected commercial speech or clearly violative, and how public health is best served.

(Emphasis added). Not long after that, a company took up Dr. Gottliebs challenge, and the result was Amarin Pharma, Inc. v. FDA, 119 F. Supp.3d 196 (S.D.N.Y. 2015).

To some extent, where one stands depends upon where one sits, but Dr. Gottlieb has enough of a track record on truthful manufacturer speech about off-label uses of drugs and medical devices, and the constitutional and medical implications of suppressing it, that we are more hopeful now than we have ever been that the FDA will see reason, respect the First Amendment, trust physicians, and change its science-suppressing ways.

With that in mind, we examine the newest First Amendment precedent rejecting governmental prohibition of a manufacturers truthful speech about its product, Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228 (11th Cir. 2017). Ocheesee is a food (skim milk) case, but doesnt involve the FDA it doesnt even involve the federal government. Instead, Ocheesee is a demonstration that, when given the chance, state regulators are still equally capable of behaving just as badly towards the First Amendment as the feds, albeit on a smaller scale.

It may be that Ocheesee doesnt involve interstate commerce, see 851 F.3d at 1231 n.1, or it may be that there is something peculiar about milk regulation that we dont know, but the State of Florida (not the FDA or any other federal entity) came down on the plaintiff, described as a small dairy creamery located on its owners farm that sells all-natural dairy items, like a ton of bricks. Id. Apparently, the process of skimming the cream from whole milk depletes almost all the vitamin A naturally present in whole milk because vitamin A is fat-soluble and is thus removed with the cream. Id. Thus Florida agricultural regulations require vitamin A to be added to skim milk before it can be sold as skim milk. Id.

That was a problem for the plaintiff because, as a matter of philosophy, this business prides itself on selling only all-natural, additive-free products. Id. It therefore refuse[d] to replace the lost vitamin A in its skim milk with a vitamin A additive as Florida law required. Id. The State of Florida thus prevented the plaintiff from calling its product skim milk, even though that product contains no ingredients other than skim milk. Id. Instead (and ironically) the state sought to require the plaintiff to call its product imitation milk. Id. at 1232. Not surprisingly, the plaintiff refused and sued instead.

Readers attuned to the First Amendment no doubt see the problem already. Calling such a product skim milk is truthful. The State of Florida like the FDA with truthful off-label speech sought to suppress the plaintiffs truthful speech in a commercial context, using the public health (vitamin A is not just good for you, but essential to health) as its reason for doing so. Who wins the First Amendment right to engage in truthful commercial speech, or the states public-health-based rationale for suppressing such speech?

In Ocheesee, freedom of speech prevailed. 851 F.3d at 1233 (The sole issue on appeal is whether the States actions prohibiting . . . truthful use of the term skim milk violate the First Amendment. We hold that they do.).

First, the lay of the constitutional land. Ocheesee applied the now-venerable Central Hudson intermediate scrutiny test for constitutionality of governmental restrictions of commercial speech. 851 F.3d at 1233 (citing Central Hudson Gas & Electric Corp. v. Public Service Commn, 447 U.S. 557, 563-64 (1980)). Thus, Ocheesee did not apply the more speech protective tests enunciated in Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (heightened scrutiny) (see our discussions here, here, here, and here); and Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) (strict scrutiny) (see our discussion here). That doesnt mean that the Eleventh Circuit was unaware of these cases quite the contrary:

There is some question as to whether under the Supreme Courts decisions in Sorrell and Reed an analysis to determine if the restriction is content based or speaker focused must precede any evaluation of the regulation based on traditional commercial speech jurisprudence, and if so, whether this would alter the Central Hudson framework. In Sorrell, the Supreme Court found the restriction at issue to be content based but nevertheless cited, articulated, and applied the Central Hudson test. And in Reed, the Court arguably broadened the test for determining whether a law is content based. . . . We need not wade into these troubled waters, however, because the State cannot survive Central Hudson scrutiny, and in any event the [plaintiff] does not argue the States restriction was content based or speaker focused.

851 F.3d at 1235 n.7. Thus, the favorable First Amendment decision in Ocheesee sets a floor for the protection of truthful commercial speech in the Eleventh Circuit that parties arguing Sorrell and Reed may exceed.

Under the Central Hudson criteria, as a threshold question, the government (which always has the burden of proof) had to establish that the suppressed speech either concerned unlawful conduct or was false or inherently misleading. 851 F.3d at 1235-36. It failed because selling the plaintiffs product was not unlawful the state would have allowed its sale under the imitation description. Id. at 1237. Note the parallel to off-label speech doctors are free to engage in off-label use, and products so used may be lawfully sold. [T]he only difference between the two courses of conduct is the speech. Id.

Nor could the speech be considered false or misleading. The state could not simply define a product in whatever way it chose, and declare anything not meeting that definition misleading. The court rejected such self-evidently circular reasoning:

Such a per se rule would eviscerate Central Hudson, rendering all but the threshold question superfluous. All a state would need to do in order to regulate speech would be to redefine the pertinent language in accordance with its regulatory goals.

Id. at 1238. Again, any resemblence to the FDAs salami slicing of intended uses is entirely intentional. Consumer unfamiliarity is not synonymous with misinformation. Id. at 1239 (citation and quotation marks omitted).

Next up in Ocheesee was the three-pronged intermediate scrutiny Central Hudson test: (1) was the asserted governmental interest substantial? (2) did the regulation directly advance the that substantial governmental interest? And (3) was the restriction on speech more extensive than is necessary to serve that interest? 851 F.3d at 1235-36.

As in off-label promotion cases, the substantiality of the governments interest in combating deception and in establishing nutritional that is to say product safety and effectiveness standards was concededly substantial. Id. at 1240. Ocheesee jumped over the second prong and went right to the third, because the measure is clearly more extensive than necessary to achieve its goals. Id.

In all commercial speech cases, the preferred remedy is more disclosure, rather than less. Id. (Supreme Court citation omitted). Floridas flat ban on use of the term skim milk failed because a disclaimer would serve the same purpose in a less restrictive and more precise way. Id. [A]llowing skim milk to be called what it is and merely requiring a disclosure that it lacks vitamin A was sufficient to serve [the state] interest in preventing deception and ensuring adequate nutritional standards. Id.

The First Amendment thus prevailed where the speech is truthful without the court going even having to go to the trouble of relying on heightened (Sorrell) or strict (Reed) scrutiny, both of which would be argued in truthful off-label speech cases. Visions of shattered backboards come to mind. We dont think Dr. Gottlieb wants the FDA to end up like Bill Robinzine, so were looking for a more reasonable off-label speech policy to emerge from the FDA, before a court has to do so for the agency.

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Speaking of the First Amendment. . . . - Lexology (registration)

By Roy S. Gutterman By Roy S. Gutterman May 19 at 9:43 AM

Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.

When protesters recently shouted conservative firebrands Ann Coulter and Milo Yiannopoulos off the University of California at Berkeley campus, the irony surrounding these two separate but related incidents was as bright as the fires that the protesters ignited, nearly burning down an academic building. How could the birthplace of the 1960s free speech movement be so hostile to opposing viewpoints?

A university should be a place where discussion and debate flourish. In this case, speakers on one side of the debate had no trouble articulating their viewpoint, while they silenced speakers on the other side of the table. This not only stifles the marketplace of ideas, it also runs counter to the values of the First Amendment.

While conservative opinions were targeted at Berkeley, challenges to free speech come from across the political spectrum. President Trumps declaration that the press is the enemy of the American people was one of his sharpest attacks against journalists and the Fourth Estate. It built on his other promises to crack down on leaks to journalists, as well as his campaign rhetoric naming and personally insulting reporters, and pledging to crack down on opponents and open up libel law to make it easier to recover damages from the press.

[Pray for the First Amendment. Now.]

Yet in the face of the rhetoric, the vitriol and the tweets, citizens and the press are still able to draw on the power and permanence of the First Amendment. Floyd Abrams, perhaps the countrys most prominent First Amendment and media lawyer, makes his latest case defending free speech and press rights in his book The Soul of the First Amendment. Abramss thesis is that speech and press rights are woven into the fabric of America and set the United States apart from the rest of the world. These inherently human rights are akin to freedom of conscience and lead citizens to achieve self-fulfillment through speech, expression, publication and the free flow of information.

A series of six essays, The Soul of the First Amendment is a quick read, and at about 140 pages, considerably thinner than Abramss other books on the topic, particularly his recent books Friend of the Court (2013) and Speaking Freely (2005). These essays are readable and comprehensible to both a specialized audience of lawyers and laypeople just looking to understand a little more about these rights.

The books brevity does not detract from its substance or clarity as Abrams explains the origins and tensions of the First Amendment. He dives into historic and contemporary controversies that test our adherence to these principles, noting, Speech is sometimes ugly, outrageous, even dangerous.

The journey of the First Amendment begins at the Constitutional Convention in 1787 and with the vision of James Madison and the framers who emerged from the Revolution skeptical of governments power over the people, and governments propensity to abuse that power through censorship or aggressive application of laws to punish speech or dissent.

The notion that First Amendment interests are served whenever laws genuinely reflect public opinion also seems to overlook the reality that the public too often seeks to suppress speech it disapproves of, he writes.

The road, however, is littered with the carcasses of dissidents and offensive speakers. Threats to speech are discussed throughout the book, including the Sedition Act of 1798; the Espionage Act of 1917; and the jailing of abolitionist journalists during the Civil War or communists and socialists during the Red Scare, McCarthyism and the Cold War. American history is replete with examples of attacking, punishing, ostracizing or censoring a range unpopular or offensive speakers.

[Our First Amendment test is here. We cant afford to flunk it.]

As the country has evolved, so has our protection of and tolerance for free speech and the marketplace of ideas.

Abrams supports much of his thesis in a lawyerly fashion, pointing to Supreme Court precedents and sprinkling in points from caselaw. It reads like a First Amendments Greatest Hits compilation. He cites such cases as New York Times v. Sullivan (1964), which revolutionized libel law and facilitated robust debate and criticism of public officials and public policy, particularly civil rights. He describes how in New York Times v. United States (1971), the Pentagon Papers case, the Supreme Court stood up to the Nixon administration by refusing to allow the government to block publication or censor the Times and The Washington Post, which were running stories based on leaked top-secret government documents.

The historic and the contemporary are explained and juxtaposed. For example, Abrams draws comparisons between the Pentagon Papers and WikiLeaks and the Edward Snowden stories published by the Guardian. Discussions of public officials and public figures litigating against the press are compared with recent threats by President Trump, as well as the Hulk Hogan invasion-of-privacy verdict against Gawker.

Other recent First Amendment challenges are also part of the discussion, including offensive religious protesters at military funerals, virtual child pornography, videos depicting animal abuse, flag burning and other outrageous speech. This illustrates another theme: It is easy to protect speech that does not rankle people, but the First Amendment protects ugly and offensive speech, too. Abrams also devotes a sizable portion of a chapter to defending the controversial Citizens United case.

Resting nicely on the pedestal Abrams builds, the First Amendment might be akin to Americas crown jewels, setting us apart from dictatorships and even other democracies. He writes that the gulf between the legal protections afforded to free expression in the United States and those afforded in Europe remains oceanic.

The explication begins with an anecdote from a family cruise in 1976, when his son, Dan, got into a tiff with the ships British staff, which barred the youth from a viewing of the PG-rated All the Presidents Men because of profanity. The aggrieved Dan, who grew up to be a lawyer and legal affairs reporter, chortled, Thats why we have the First Amendment.

Of course, the protections of the First Amendment apply only to government action and do not reach beyond our borders. However, this personal story sets the tone that Madison was really onto something unique.

Many other countries have laws protecting and supporting freedom of speech. However, Abrams notes that in many places, these pronouncements are mere lip service to such freedoms, especially in places where journalists and dissidents are censored, harassed, imprisoned or killed for expressing themselves.

With these countries, there is no comparison and never will be. Abrams also distinguishes between American values and European countries, particularly Britain and the European Union, where libel laws are more plaintiff-friendly and the right to be forgotten has forced websites and search engines such as Google to remove hundreds of thousands of articles. International plaintiffs seek and sometimes find hospitable jurisdictions in which to litigate and punish the press through libel tourism.

As much as the First Amendment grants us rights to speak and express ourselves, the amendments construction is a bar on government power and potentially abuse. Congress shall make no law is a declaration to people around the world that the United States reveres our speakers and our government shall not abuse them.

Abrams has spent a lifetime fighting for First Amendment rights in courtrooms and the court of public opinion. It takes lawyers and judges to protect these rights and to write the story of the First Amendment. Abramss tribute to the amendment comes at a time when many believe that freedom of the press and freedom of speech are under attack from the highest levels of government.

Lets hope Abrams is writing an homage to the First Amendment, not its obituary.

The Soul of the First Amendment

By Floyd Abrams

Yale. 145 pp. $26

The rest is here:
First Amendment: often challenged but consistently enduring - Washington Post

After reading a column titled "Setting the record straight," written by Pat Mitchell and published in the Saturday, May 13, edition of the Vail Daily, a concerned community member emailed me, calling into question my decision to allow Mitchell to use the newspaper as a forum to share his thoughts on homosexuality and the church.

As journalists, we live and die by the First Amendment, which protects all manner of expression, with a few notable exceptions. These exceptions have been defined by case law and include such things as obscenity, child pornography and inciting others to lawlessness.

When it comes to determining whether a submission makes it onto the commentary pages of the Vail Daily, the above-mentioned exceptions to free speech rarely, if ever, come into play. The three categories we are much more likely to come across are defamation, or in our case, since it's written, libel; what's called a "true threat," which is a verbal assault that threatens physical harm to a specific person; and fighting words.

Fighting words are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace," wrote Justice Frank Murphy in the 1942 U.S. Supreme Court decision for Chaplinsky vs. New Hampshire, a case that helped define those unprotected elements of speech.

Mitchell concluded his column by saying, "The Bible accepts homosexuals, both men and women, to the faith. They don't, however, condone their sexual behavior. Churches welcome them willingly as they would adulterers, thieves and others seeking forgiveness."

By describing homosexuals in the same breath as adulterers and thieves, was Mitchell using fighting words, inciting immediate action from those who read his remarks and thereby wandering into the narrow realm of speech not protected by the First Amendment? I don't believe so.

Whether or not I agree with Mitchell's conclusion did not factor into my decision to print his column. If I censored every opinion that ran contrary to my own, then I would not be a very good steward of this newspaper. Instead, I weighed his words against established tenets of free speech and, after careful consideration, published his column.

I believe it's critical that submissions to the commentary pages of the Vail Daily remain as free from my or anyone else's intrusion as is possible under the law, in order to cultivate a robust community dialogue. As a newspaper, we cannot demand the protections provided us by the First Amendment if we don't also uphold them within these pages.

Krista Driscoll is the editor of the Vail Daily. You can reach her at kdriscoll@vaildaily.com.

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Vail Daily column: First Amendment and the commentary page - Vail Daily News

ANALYSIS/OPINION:

Sometimes theres a nugget of something good in the daily ration of bad news. A T-shirt printer in Lexington, Ky., one Blaine Adamson, won a state court ruling early this month that he was within his First Amendment rights to refuse to print an offensive message on T-shirts ordered by the Gay and Lesbian Services Organization for a gay pride parade.

The court overturned a ruling by the Lexington-Fayette Urban County Human Rights Commission that Mr. Adamsons firm, called Hands On Originals Christian Outfitters, violated a city ordinance barring discrimination based on sexual orientation.

Writing for the court majority, Chief Judge Joy Kramer agreed that the ordinance prohibits such discrimination, but discrimination was not at issue. Objecting to being compelled to propagate a message Mr. Adamson finds odious is not the same as refusing to serve the group because of the sexual orientation of its members.

The right of free speech does not guarantee to any person the right to use someone elses property, Judge Kramer wrote. The conduct [that] Hands On Originals chose not to promote was pure speech. Nothing in the fairness ordinance prohibits Hands On Originals, a private business, from engaging in viewpoint or message censorship.

Indeed, Mr. Adamson said hes willing to print LGBT T-shirts as long as the message he is asked to print on them does not promote homosexuality. Hands On Originals prints messages on mugs, pens and other things as well as T-shirts. Mr. Adamson has in the past declined printing jobs for a strip joint and for pens promoting a sexually explicit video.

The Kentucky ruling runs contrary to similar cases in Colorado, Oregon, New Mexico and elsewhere, in which Christian bakers, photographers and florists were penalized for exercising religious beliefs in refusing to participate in same-sex weddings.

The Kentucky ruling should encourage Jack Phillips, owner of the Masterpiece Cakeshop of Lakewood, Colo., who has appealed to the U.S. Supreme Court to reverse a 2013 ruling by the Colorado Civil Rights Commission, upheld by state courts, to punish him for refusing, for religious reasons to bake a cake for a same-sex wedding reception.

The high court has avoided taking the Phillips appeal for months while the court lacked a ninth justice in the wake of the death of Justice Antonin Scalia. With the confirmation of Neil Gorsuch as the ninth justice, the high court is now fully manned and ready for business.

See more here:
EDITORIAL: Good First Amendment news - Washington Times - Washington Times

From Brennan v. U.S. Dept of Homeland Sec., decided Tuesday by the Ninth Circuit:

When Transportation Security Administration (TSA) officers at Portland International Airport told John Brennan that he needed to undergo additional security screening because he tested positive for explosives, Brennan, in the middle of a TSA checkpoint, stripped naked. When TSA officers told Brennan to get dressed, he refused three times. After TSA officers had to close down the checkpoint and surround Brennans naked body with bins until the police arrived to remove him, the TSA fined Brennan $500 for interfering with screening personnel in the performance of their duties. See 49 C.F.R. 1540.109 (No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.). Brennan petitioned for our review. We have jurisdiction under 49 U.S.C. 46110, and we deny the petition.

Brennans core contention is that stripping naked in the middle of a TSA checkpoint is expressive conduct protected by the First Amendment. But Brennan fails to carry his burden of showing that a viewer would have understood his stripping naked to be communicative. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). Therefore, his conduct is not protected by the First Amendment.

Brennan also argues that his conduct did not violate the TSA regulation and that even if it did, the regulation is too vague to survive challenge under the Due Process Clause. Neither argument has merit. The regulation prohibits interfer[ing] with screening personnel in the performance of their screening duties. 49 C.F.R. 1540.109. A regulation is unconstitutionally vague if it fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement. In making this judgment, we provide greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.

Brennans conduct falls squarely within the regulations ordinary, contemporary, common meaning. We have long recognized that interfere has such a clear, specific and well-known meaning as not to require more than the use of the word[] in a criminal statute. In other words, the word has a settled legal meaning[]. And courts have often defined and applied it, but never in a way that would lead a person of ordinary intelligence to think that he or she could strip naked at a TSA checkpoint and refuse to get dressed, leading to the closure of the checkpoint.

The petition for review is DENIED.

Note that Brennans Oregon state court prosecution for public nudity ended with an acquittal:

The judge sided with the defense, which cited a 1985 Oregon Court of Appeals ruling stating that nudity laws dont apply in cases of protest.

It is the speech itself that the state is seeking to punish, and that it cannot do, Circuit Judge David Rees said. [Oregonian, Aimee Green.]

But the Ninth Circuit wasnt bound by this conclusion; state acquittals dont preclude federal claims, and in any event criminal acquittals dont preclude civil claims, which rely on a lower standard of proof. (Remember O.J.?)

Go here to read the rest:
Naked TSA Checkpoint Guy loses First Amendment challenge to $500 fine - Washington Post

On the same day the president of Northwestern University told the Wall Street Journal it was sometimes appropriate to restrict speech on campus, disruptive students prevented an in-class speech by an official from U.S. Immigration and Customs Enforcement.

An ICE spokeswoman was scheduled to talk to a Northwestern sociology class on Tuesdayone half of a two-part lesson, now cancelled, that would have also included a speech by an undocumented immigrant.

Protestors initially stood outside the classroom chanting F**k ICE. They were then admitted to the classroom, where they interrupted the talk and aggressively confronted both the ICE representative and the professor who had invited her, the student newspaper reported. The ICE officer left without completing her speech.

That same day, the Wall Street Journal published an interview with Northwesterns president, Morton Schapiro, where he defended safe spaces and said that offensive speech targeting specific individuals or groups might, in some circumstances, be considered assault, not free speech.

You want to protect the First Amendment, obviously, but it isnt absolute, Schapiro said. People reduce it to slogans or free speech at all costs.

Schapiro also said: I will just say that if you shut down freedom of speech, you better have a really good reason. I think if you shut down anything, you better be really sure that you have a moral and legal justification to do it. Thats my view.

The protestors came from MEChA, a campus Chicano group; Black Lives Matter, the Immigrant Justice Project, the Asian American Pacific Coalition and various LGBT campus groups, the Daily Northwestern reported.

On Facebook, MEChA defended shutting down the ICE officials talk:

Dialogue with any ICE official legitimizes their position as state actors of violence.The presence of an ICE PR agent whose sole purpose is to make ICE look good and recruit students implies university complicity and encouragement of the actions of this organization. We do not engage in conversations with ICE in any way, shape or form regardless of their position.

Citing security and privacy concerns, Beth Redbird, the professor who invited the ICE official to speak, said she had cancelled a scheduled talk by an undocumented immigrant. Her class focuses on inequality in American society with an emphasis on race, class and gender.

In a discussion with students, Redbird defended her decision to invite the ICE representative, the Daily Northwestern reported. All they did was come here today to answer questions so you know whats going on, so that you are informed and so you can make decisions. If you want to make change in a community, you need to know whats going on, she said.

In a jointstatement, Schapiro and Northwesterns provost said they were deeply disappointed in students disrespectful, inappropriate behavior Tuesday.

While we understand the point of view expressed by the students protesting the guest lecturers invited to speak here, the resulting disturbance not only limited the academic inquiry central to our campus, it also forced invited speakers to leave and violated the rights of other enrolled students who were present to learn. Free expression must be protected and should be countered with more debate, close examination and critical thinkingnot censorship, their statement said.

The university also said it was reviewing the facts around the protests so it could take appropriate action.

Earlier this week, the Northwestern chapter of Students for Justice in Palestine hosted Rasmea Odeh, a woman convicted for a terrorist attack; her group, the PopularFront for the Liberation of Palestine had planted a bomb in a box of candy, which killed two college studentswhen it detonated agrocery storein Jerusalem.Pro-Israel groups on campuscondemned the event as an affront to the sanctity of life, saying it crosses a moral line.

In a statement, Northwestern Hillel announced it would hold a silent vigil for Odehs victims outside of the venue. This will be a silent, non-confrontational vigil, the group said. We will not attempt to disrupt the event in any way.Our goal is not to protest free speech, but instead to mourn the victims ofthe convicted terrorist who is speaking on our campus.

Schapiro joined about 150 students, professors and staffers who attended the vigil.

Jillian Kay Melchior writes for Heat Street and is a fellow for the Steamboat Institute and the Independent Womens Forum.

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Northwestern Students Shut Down Speech as President Says First Amendment 'Not Absolute' - Heat Street

On Tuesday, protesters outside the Turkish embassy in Washington were beaten up, allegedly by security guards for Turkey's president, Recep Tayyip Erdogan. Video showed protesters being kicked and stomped, sometimes in the head. Eleven people were injured, including a D.C. police officer. Two men were arrested, and police are seeking more suspects though if they are members of Ergodan's security detail, they may have diplomatic immunity. The Trump administration has stayed silent on the violence in the nation's capital.

Also Tuesday, in The New York Times' bombshell story about then-FBI Director James Comey being asked by Trump to lay off the investigation over Russian meddling in the 2016 election, there was this disturbing tidbit: Trump, an associate of Comey's said, told Comey to think about putting reporters in prison for publishing classified data. Marty Baron, executive editor of The Washington Post, told The Times that Trump's request was "an act of intimidation."

On Wednesday, after a speech to the graduating class of the Coast Guard Academy in which he complained about his treatment by the media, Donald Trump was presented with a ceremonial saber. With the mic still on, John Kelly, Trump's Homeland Security secretary, joked to Trump, "Use that on the press, sir." Trump laughed.

Each of these examples, in isolation, would be troubling coming from "the leader of the free world," as we often call the president of the United States. But these are just the latest examples of a clear pattern of disrespect and distrust from a man who has called the press an "enemy of the people."

PEN America, the human-rights organization that defends writers, recently issued a report detailing the attacks on the press in the first 100 days Trump has been in office. For lovers of free expression and good journalism, it reads like something by Stephen King.

In the report, PEN America listed 76 instances of Trump or his people undermining the press by attacking either the media in general or specific outlets as "fake news," or by restricting access to government officials. The administration has placed gag orders on government employees, threatening them with their jobs if they talk to reporters.

Other actions don't just affect journalists, PEN America reports. The administration has removed information from government websites. It has accused people at marches, rallies and town halls of being paid professionals, an effort to delegitimize peaceful protest. It requires travelers to give U.S. border agents access to their electronic devices, including passwords to their social media which could have a chilling effect on free expression.

The reason these attacks from Trump are so dangerous is the same reason the Founding Fathers made the press the one profession mentioned in the Bill of Rights. It's because without a free press, vigorously keeping a check on the government, there would be no democracy and no United States of America.

Sean P. Means writes The Cricket in daily blog form at http://www.sltrib.com/blogs/moviecricket. Follow him on Twitter @moviecricket. Email him at spmeans@sltrib.com.

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Sean P. Means: Trump's attacks on First Amendment aren't just saber-rattling - Salt Lake Tribune

Representative Val Demings may be the first Democrat to admit to how the left views the First Amendment. The Florida Congresswoman replied to a critical comment by saying, My First Amendment Right is different from yours. Any honest political observer has to admit that this is a salvo in the war the left and Democrats are currently waging on free speech. They try their best to silence any speech that does not fit their dogma, and Demings, intentionally or not, just revealed the game plan.

Whether it comes in the form of campuses silencing speakers who offend their student snowflakes or via government officials regulating elections, efforts to stop or limit opposing viewpoints should be deeply troubling to all. Most troubling are the movements being led by Democrat lawyers and liberal law professors, the very people who traditionally have been defenders of the First Amendment.

The American legal system tells us that Justice is blind, but someone should tell that to the Democrats who propose election speech initiatives that only benefit their side. A great example is Sen. Chuck Schumers, and other Senate Democrats, sponsorship of the very-misnamed We the People reform package. This package would restructure the Federal Election Commission (FEC) to include three members of the Presidents party and two of the opposition party, a change from its current composition of three Democrats and three Republicans with the possibility of deadlock as a check on power.

The FEC is set up to limit partisan restrictions of speech by one party or the other by making the FEC evenly split between the parties, with the votes of four commissionersa minimum of bipartisan agreementrequired for it to take any action. This legislation was an obvious effort by Schumer and Democrats to chill or limit the political speech of Republicans, libertarians, Green Party members, and even non-establishment Democrats when they thought Hillary Clinton was a lock to win the White House. It comes as no surprise they have not reintroduced the proposal under President Trump.

No one should doubt the lefts ideals on speech go only one way. Democrat members on the FEC went after Fox News for get this too much speech in allowing too many candidates in a Republican primary debate the network hosted, while ignoring CNN when it did the same thing. Fortunately, the three Republicans on the commission blocked their colleagues, followed the law and were ideologically consistent in opposing efforts to go after CNN and Fox, so nothing came of the Democrat witch hunt.

One of those Democratic commissioners, Ann Ravel, who has since resigned, even proposed regulating the internet, including individual Facebook and blog posts. She even voted to regulate internet speech despite a longstanding FEC policy not to regulate such speech. Is there any doubt that three Democrat commissioners under the Schumer FEC plan would fine and regulate Republican posts while ignoring Democrat posts? (In fairness, Democrat party leaders would also go after an outsider candidate like Bernie Sanders over an establishment candidate like Hillary Clinton. Remember the leaked DNC emails?)

More frightening than limiting and regulating the speech of everyday Americans trying to speak on political issues is government seeking to punish and prosecute those who want to speak out against them. Make no mistake, the IRSs political targeting of Tea Party and other conservative non-profit groups beginning in 2010 was an attempt to silence opposition voices that were not friendly to Democrats or government power.

The left continues to double down and stop opposing speech even among its own members. Consider the liberal outcry against the Presidential Advisory Commission on Election Integrity. Yes, Democrats oppose integrity in the electoral system, apparently.

Marc Elias, Hillarys lawyer and now the lawyer of choice in Democrat fights against free speech, leveled a warning to any Democrat who serves on a commission to study vote fraud and how to make elections better. He said: No Democrat should serve on Trumps new voter suppression commission. Period. Similarly, Bob Bauer, President Obamas lawyer and Elias current colleague, said: [E]lection administration experts should keep their distance from the commission. Professor Rick Hasen, promoter of liberal talking points, wrote on his Election Law Blog Not sure what Democrat or election professional would be on a commission with Secretary of State Kris Kobach or former Secretary of State Ken Blackwell. Hasens probably correct: its safe to assume few Democrats are courageous enough to cross Elias.

And remember, freedom of association is part of our First Amendment rights. But according to Elias, Bauer, and Hasen, a Democrat cannot even associate with Republicans without repercussions.

Fortunately for the country, some Democrats are willing stand up to the bullying from the Democrat legal establishment. The commission does include Democrats, including arguably the most qualified election official in the country and longest-serving Secretary of State, William Gardner of New Hampshire, the only truly purple state in the Northeast. Gardner has done such a good job in the opinion of the people of New Hampshire that he has survived the changing tides of Republican and Democrat leadership.

The real problem for Elias, Bauer, and Hasen is they fear that Gardner will be an honest broker, not a blind partisan, who will look past who is President and how much the results of the commission benefit Democrats. He will assess the true state of elections in this country, determine public confidence in election results, evaluate election integrity, and very likely not simply regurgitate Democratic talking points.

One wonders if the establishment left fears free speech in our electoral process so much because in a free debate, they will lose. And lets not forget that Democrats, including Elias, are privately very concerned about ineligible voters, but only when their favored candidates victories are at stake.

To his credit, Bernie Sanders showed that at least some Democrats still support free speech and intellectual discussion, even if they are increasingly outsiders within their own party. Sanders condemned the successful effort to stop Ann Coulter from speaking at UC Berkeley: But you know, people have a right to . . . give a speech, without fear of violence and intimidation. . . . To me, its a sign of intellectual weakness . . . . Confront her intellectually. Booing people down, or intimidating people, or shutting down events, I dont think that that works in any way.

Of course, that sort of intellectual discussion and competition is what establishment Democrats fear most. Dissent is not allowed among todays establishment Democrats, which may be why they rigged the primary to defeat Sanders and continue to fight every effort to protect the right to speak freely regardless of political party or ideology.

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Democrats Think Their First Amendment Is Different (And Superior) - The Daily Caller

On May 3, Desiree A. Fairooz, of Virginia, was convicted of disorderly conduct for laughing during the Jan. 10 confirmation hearing of U.S. Attorney General Jeff Sessions.

On May 10, reporter Dan Heyman, of Public News Service, was arrested after questioning U.S. Secretary of Health and Human Services Tom Price at the Charleston, S.C., Capitol building. Police charged Heyman with misdemeanor willful disruption of state government processes after he repeatedly asked Price whether domestic abuse would qualify as a preexisting condition under President Donald Trump's health care reform bill. Heyman said he was simply being persistent after the secretary refused to answer.

Meanwhile, also on May 10, Trump met with top Russian officials in the Oval Office, but prohibited U.S. reporters from entering the room. Instead, a photographer from state-run Russian news agency TASS was permitted to serve as witness. Since Trump's closed-door chat with Russian Foreign Minister Sergei Lavrov and Ambassador Sergey Kislyak, it has been reported Trump divulged sensitive intelligence information, further rocking his already tempest-tossed administration.

On May 14, in one of his customary crack-of-dawn Twitter meltdowns, Trump pooh-poohed the idea that his "surrogates" should be expected to speak to the press with "perfect accuracy," and suggested he may "cancel all future 'press briefings'" in favor of prepared, written statements.

If the events of the past two weeks or so have you feeling a little jittery about the safety of the First Amendment, it probably means you've been paying attention. In this edition of Boise Weekly, we have two stories that deal with free speech.

The first, on Page 6, digs into yet another lawsuit filed against Idaho State Police for busting a burlesque show, ostensibly because it mingled "obscenity" with alcohol. The second, on Page 8, highlights a recent legal victory over ISP for conducting just such a sting, and how artists will be celebrating with a risque cabaretfeaturing plenty of libations with which to toast the mighty First Amendment.

Zach Hagadone

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Toasting the First Amendment - Boise Weekly

CHARLOTTESVILLE, Va. (NEWSPLEX) -- The First Amendment, at its core, protects all forms of speech. That includes hate speech.

So while people are taking issue with the rallies this weekend in Charlottesville over the Robert E. Lee Statue, under the First Amendment, those rallies are protected even from city permits.

"Under the First Amendment, free speech is free," explained John Whitehead from The Rutherford Institute.

Whitehead said the creation of the First Amendment was to empower people to speak up, and protect people from their own government.

"The government cannot target one specific group or several groups and say 'You don't have the right to speech because we don't agree,'" he said.

According to Whitehead, even though certain forms of speech make people uncomfortable like hate speech, it is still protected by the Constitution.

"You can say 'I hate this. I hate that. I don't like these people.' Whatever, but that's protected," Whitehead said.

The reason for allowing hate speech, explained Whitehead, is because that type of speech can actually drive a conversation about an issue.

"If I say something to you that really offends you out there listening to this program, it makes you think. It makes you want to debate. And that's what the founding fathers wanted," he said. "They wanted a debate."

However, Charlottesville city code states people should get permits for large gatherings like Saturday's alt-right rally in Lee Park.

"People are suppose to get permits when they do these things on public property," said City Councilor Bob Fenwick. "No permit was applied for. It was an ambush, a sneak attack. It was one of the dumbest things I have seen in my life."

Regardless, the First Amendment lets demonstrators hold rallies without getting the proper permission from localities.

"While we prefer protesters get permits like any other event, such assemblies are protected by the First Amendment and we do not interfere unless we perceive a legal or safety issue," added a Charlottesville city spokesperson.

But there is a point at which the First Amendment stops protecting speech.

"If you're advocating violence, that's where it stops," said Whitehead. "In other words, you're saying 'Lets go out, blow them up, lets shoot them, kill them,' That's no longer protected under the law."

Reflecting on the rallies over the weekend, Whitehead said people who did not like what they saw should speak up and express their opinions. He said that is why the First Amendment was created.

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Weekend rallies protected by First Amendment, including torch burning - The Charlottesville Newsplex