Category Archives: First Amendment

This article first appeared on the Just Security site.

Theres been substantial discussion in the news over the past week about the specter of a criminal prosecution of Julian Assange arising from his role in facilitating various disclosures of classified national security information, and its potential implications for press freedom in the United States.

Much like the Q&A we did back in February about Michael Flynn and the Logan Act, we thought it would be helpful to flesh out why the Assange case could pose such a troubling precedent for the press, and what the major unanswered questions are.

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Ryan to Steve : Let me start with a softball question before getting to four tougher ones. Why should journalists, as well as others concerned about freedom of the press, care about whether the government decides to prosecute Julian Assange?

WikiLeaks founder Julian Assange looks out of the window of the Ecuadorian embassy in central London on February 5, 2016. Ryan Goodman and Steve Vladeck write that a successful Assange prosecution in the U.S. could pose a troubling precedent for the press. NIKLAS HALLE'N/AFP/Getty

Steve to Ryan : Theres a lot to say here. The problem arises from two related but distinct phenomena.

First, the statute getting the most press here is the Espionage Act ( the relevant provision of which is

793 (e)

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;

which could theoretically apply to any third party who willfully transmits information relating to the national defense, or even retains it without authorization.

Second, although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause.

So if theres a First Amendment defense to the unlawful disclosure of classified national security information, the test (if not its application) should be the same regardless of whether the disclosure is by someone we all agree is a reporter, someone whos actually a foreign agent, or none of the above.

The breadth and concomitant lack of nuance of 793(e), about which Ive written previously, may help to explain why the government has almost never tried to prosecute a third party under that provisionand has instead focused on prosecuting those directly responsible for the unauthorized disclosure of national security information ( e.g. , spies and leakers).

The only attempted prosecution of third parties under 793(e), the 2005 indictment of two AIPAC lobbyists for their role in facilitating the transmission of classified information to Israel, fell apartbut without setting a clear precedent about how the First Amendment would protect unauthorized disclosure of national security information (if at all).

Finally, and turning to the First Amendment question, the Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information.

Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.

To be sure, the Court has held that, in some circumstances, the First Amendment protects public disclosure of confidential information (and has applied whats known as Pickering balancing to assess when the public interest in disclosure outweighs the governments interest in preserving confidentiality), but even the Bartnicki decision in which the Court ruled that the First Amendment protects a radio stations broadcasting of an unlawfully recorded audio conversationturned to a large degree on the parties stipulation that the radio station itself had acquired the recording lawfully.

Because of the Espionage Act, theres no way for a third party lawfully to acquire classified national security information that they are unauthorized to possess.

So Im skeptical that Assange (or the New York Times , for that matter) would have a clear-cut First Amendment defense to the publication of classified information in anything but the most extreme case of public concern (and perhaps even then).

Thats not to say that there arent incredibly serious First Amendment concerns lurking in the background here; among other things, I have to think that the First Amendment might at least protect a right to publish information on unlawful government programs (which, by law, could not properly be kept secret in the first place), especially where the existence of the program is a matter of significant public concern.

Im just not that sanguine about the prospect of the Supreme Court recognizing a First Amendment right to publish national security secrets in anything but such a compelling case (and wonder, for example, if Snowdens disclosures, at least of the phone records program, would fit the bill).

Simply put, the principal historical constraint on prosecutions of the press for publishing national security secrets has been prosecutorial discretion, not constitutional law.

And so one does not need to have a particular view about Assange (or think that he is or is not a journalist) to have a view on the implications here; the key is if hes prosecuted as a third party under the Espionage Act, which, of itself, would set a dangerous precedent for press freedom.

Ryan to Steve : What if the governments case against Julian Assange is based primarily and lets say for the sake of analysis, exclusively on allegations that he was directly involved in procuring classified information?

For example, imagine if Assange specifically encouraged Chelsea Manning or others to disclose the information. In a Washington Post Op-ed, Jonathan Adler wrote likely many journalists who cover national security have encouraged their sources to obtain and leak secrets, too. Would they also be at risk?

But whats wrong with drawing that line, and telling journalists they can publish classified information that someone hands to them, but they must never be directly involved in encouraging someone with access to classified information to break the law in procuring it?

Steve to Ryan : This is a really important distinction, but the devil is in the details. If the governments claim against Assange is not about publication or retention of national security information, but instead looks more like a solicitation or conspiracy claim (or some other way in which Assange was directly involved in facilitating the original wrongful disclosureand can be charged under an accessory theory for the underlying leak), then that might provide a thin-enough reed on which to rest a prosecution without crossing the line discussed above.

But nuance really matters here; Hollywood depictions to the contrary notwithstanding, most leaks dont involve uncoordinated dead-drops of materials into a journalists mailbox, but are rather the result of careful relationship building and cultivation of sources.

That is to say, its not as obvious as it might seem at first blush that providing technical assistance to Manning is categorically different (in kind, if not degree) from the kind of newsgathering that produces front-page stories derived from national security leaks, for example.

Some readers might react to this as proof that both examples ought to be prosecuted; I dont mean to take a position on that here. My point is just that, unless Assange was even more involved in the underlying theft of materials than weve been led to believe, there are still serious line-drawing problems.

Ryan to Steve : What if the governments case against Julian Assange were based exclusively on materials he disclosed that can be shown to have no public interest whatsoever or any evidence of legal wrongdoing on the part of the government?

Imagine if Assange disclosed US troop locations in Afghanistan. In your view would Assanges action in that case be free speech protected under the First Amendment?

Do you think any of Wikileaks disclosures come close to that line?

Steve to Ryan : Per the above, Im not especially optimistic that, should it come to this point, courts would recognize a First Amendment defense in Assanges case.

But thats why this is potentially such a dangerous precedent: If Assange becomes the first successful prosecution of a third party under the Espionage Act, then that gives the government a whole lot of leverage it might previously have not thought it possessed to be much more aggressive in investigating the medias role in national security leaks.

Yes, its possible to imagine a case in which courts would recognize a First Amendment defense, but by that point the constitutional Rubicon would already have been crossed.

That is to say, the issue is not whether Assange violated the Espionage Act (my own view is that he did), or whether he should have a First Amendment defense. The issue is the precedent it sets for future investigationsand, as such, chillingof even the most responsible and important national security journalism.

Ryan to Steve : If the government in pursuing a case against Assange stipulated that it was only doing so because it could prove that Assange was motivated to harm the United States would that satisfy you?

Should that satisfy First Amendment critics of a Justice Department decision to prosecute Assange?

Steve to Ryan : Motive has never been a critical factor in Espionage Act cases, and for good reason. If the harm from unauthorized disclosure of national security information is the fact that the information is out there, whether the perpetrator has good or bad motives shouldnt affect whether the disclosure is or is not lawful.

Thats why Pickering balancing, insofar as it would apply here, looks instead to the extent to which the speech involves a matter of public concern. So even if the reason for the prosecution was because Assange, unlike, say, Times and Post reporters, was motivated to harm the United States, the law wouldnt careand the precedent would still be set.

Thats why, if youre asking what would satisfy me, the answer would be a theory of criminal liability that wouldnt draw a straight line to what we would all agree is professional journalism.

Ryan to Steve : Where do you draw the legal limit? There is widespread agreement that the Espionage Act is currently drafted in excessively broad terms. But if you were legal counsel to a congressional committee interested in redrafting the Espionage Act, what elements would you suggest could be left in place with low risk of raising a First Amendment problem?

Steve to Ryan : As it turns out, Ive testified (five different times) on this exact subject, including at two different hearings that were specific responses to Wikileaks.

The real problem from a First Amendment perspective is that the statute is old and ambiguousand not drafted with the kind of specificity that usually characterizes speech-restricting statutes that survive constitutional challenge.

Heres how I concluded my testimony at a March 2010 House Judiciary hearing on the Espionage Act and Wikileaks:

First, introduce a clear and precise specific intent requirement that constrains the scope of the Espionage Act to cases where the defendant specifically intends the disclosure to harm national security and/or to benefit a foreign power. . . .

Second, create a separate, lesser offense for unauthorized disclosures and retention of classified information and specifically provide either that such a prohibition does or does not cover the public redistribution of such information, including by the press.

If this Committee and body does decide to include press publication, my own view is that the First Amendment requires the availability of any number of affirmative defenses [including] that the disclosure was in good faith; that the information was improperly classified; that the information was already in the public domain; and/or that the public good resulting from the disclosure outweighs the potential harm to national security.

Third, and finally, include in both the Espionage Act and any new unauthorized disclosure statute an express exemption for any disclosure that is covered by an applicable Federal whistleblower statute.

Ryan Goodman is co-editor-in-chief of Just Security and the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16).

Steve Vladeck is co-editor-in-chief of Just Security and a professor of law at the University of Texas School of Law.

See the rest here:
Could Assange Claim a First Amendment Defense? - Newsweek - Newsweek

Last week, federal judge David Hale ruled that Trumps exhortation for the audience at a March 2016 rally in Louisville, Kentucky, to get em [three protesters] out of here could be incitement. That is unusual enough to make headlines, especially because the defendant is Donald Trump. But the real shocker is that last week, the ACLU publicly defended Trump. The ACLU has defended Trump. The ACLU. Donald Trump. Defended.

I am a professor of law at the University of Louisville. I studied constitutional law with Erwin Chemerinsky at the University of Southern California and I received a PhD in Law at Queen Mary University of London. I have previously written on comparative constitutional law, including freedom of expression. And, I have to say, Judge Hales opinion was almost shocking to me. Incitement always seemed to me, from my early days in law school, to be this almost impossible standard that has resulted in a remarkably unchanging doctrine. I havent heard of an incitement argument being accepted by a court in years, if not decades.

That all changed earlier this month. The incitement case against Trump, Nwanguma v. Trump, was filed after three protesterssaidthey werephysically assaulted at a Trump rally. The three protesters, who stated they were at the rally to protest peacefully, were allegedly shoved and punched by rally attendees. The entire exchange was captured on film and widely broadcast in the media. In their lawsuit, the three plaintiffs have alleged that the violence occurred as a result of Trumps command to his audience to get them out of the building. Their claim that Trump incited the crowd is part of their argument that Trumps speech should not be protected by the First Amendment, leaving him open to the rest of their legal claims. [Disclosure: The lawyer representing the plaintiffs in the case against Donald Trump and his supporters has written for Salon.]

What makes the Trump incitement case so unusual is that it concerns political speech, both from the alleged inciter and the victims of the incitement. Political speech, particularly speech at political rallies, is basically the sweet spot for First Amendment protection. You cant get much more in tune with what the Constitution was meant to protect, at least according to the Supreme Court.

So what happens when political speakers collide, literally? On one hand you have the protesters, silently holding signs that insulted or criticized Donald Trump. (Ms. Nwanguma held a poster of Mr. Trumps face transposed on the body of a pig.) This is clearly political, protected speech. On the other hand, you have Donald Trump, a fiery presidential candidate, telling adoring masses about his candidacy and how he wants to make the country better. Again, political speech.

Whom is the First Amendment supposed to protect?

According to Trumps lawyers, Trump did not commit incitement because forcefully ejecting the protesters was not an unlawful act. Why? Because the protesters were trespassing. By conflating property owners and property possessors, Trumps attorneys actually argue that people who come to a public rally can be subjected to violence if the people who are using the space at the time decide that they dont want them there. Somehow, it was the trespassers silently holding signs that were breaching the peace and not the people shoving and grabbing at them.

Another argument made by Trumps lawyers is that when he said get em out of here, he meant to do it nicely. Apparently, Trumps later statement dont hurt them proves his intent was for a calm, peaceful removal of the protesters. Again, this intent is belied by the video of the event as well as Trumps prior statements about protesters. As Judge Hale noted, Trumps dont hurt them was said much more meekly. Compared to his fiery and repeated prior orders to eject the protesters, this statement does nothing to show that Trump was not getting exactly what he wanted when the crowd forcibly ejected the protesters from the building.

Trumps attorneys have also attempted to minimize the impact of Trumps prior statements that advocated violence against protesters, arguing that the plaintiffs identified only three prior speeches that included advocacy of violence against protesters, and no violence occurred then so those speeches dont provide valuable context for the Louisville rally. However, three prior speeches where a presidential candidate specifically approved of violence against protesters who attended his rallies is actually a lot. Certainly a lot more than other presidential candidates, who generally dont advocate violence at all. It is disingenuous to ignore the build-up of highly publicized rhetoric or to act as though Trumps prior statements were not in his fans minds that day. Unsurprisingly, Judge Hale did not agree with any of these assertions.

No, it is the ACLU thathas jumped to Trumps defense after Judge Hale issued his decision. According to Lee Rowland, a staff attorney for the ACLU, although a close call, Trumps speech did not amount to incitement.

Rowland actually agrees that what Trumps supporters did was unlawful because the protesters were not entitled to protest at Trumps privately run rally. As Rowland notes, Trump had the right to tell them to leave. Unfortunately, thats not what Trump did. He didnt talk to the protesters; he spoke to the crowd and told them to eject the protesters. Second, Rowland argues that Trump disavowed violence simply by adding dont hurt them later, noting that Trump also told the crowd I cant say go get em or Ill get in trouble. Judge Hale found that to be evidence that Trump didnt really mean to call off the mob; he just didnt want to be blamed for his own actions. For some reason, the ACLU is a lot kinder to Trump than a federal judge.

The final piece of the ACLUs defense of Trump, and the one that gets deepest into First Amendment cases, is Rowlands argument that Trumps words were not likely to incite violence. To make this argument, Rowland brushes off the claims of one of the assailants who counter-sued Trump by arguing that he did take Trumps words as an order, which he obeyed.

In this Bizarro-World scenario, this bleeding-heart-liberal legal academic has to come out and say something I didnt think I would ever have to say: I think the ACLU is wrong. I think ACLU has misinterpreted the requirements for incitement.

The seminal incitement cases cited in the ACLU blog were decided in the 1960s and 1970s and involved civil rights issues or anti-war protests. Brandenburg v. Ohio involved a filmed speech of a Ku Klux Klan leader burning a cross and giving a speech that denigrated black people and stated that they might need to take revengeance against the government if it continued to suppress the Caucasian race. According to the Supreme Court in Brandenburg, that speech was not incitement because, in order to legally incite a crowd, you cant just be advocating for criminal activity, you have to be preparing a group for violent action and steeling it to such action.

The other cases cited by the ACLU in its defense of Trump largely say the same thing. Hess v. Indiana (an anti-war protestor who said Well take the fucking streets later) and NAACP v. Claiborne Hardware (civil rights icon Charles Evers, who threatened to break the damn neck of anyone who broke the boycott) both show that threats arent enough. It has to be aimed to produce a response, and an immediate one. Hesss speech wasnt incitement because there was no immediate call to action. Evers speech was also just a threat, and one contingent on someone acting a certain way in the future. Threats, no matter how graphic, do not constitute incitement.

Since then, incitement has been argued in a surprising variety of cases, and almost always unsuccessfully. For example, incitement claims have been unsuccessfully tried against violent video games, giving advice on how to be a successful gang member, and requesting (but not possessing) child pornography. It is not unexpected that these and Im being charitable here creative arguments for incitement did not persuade the courts to expand its reach. In those cases, there was no command to violence and the resulting harm (if any was found) was too temporally removed from the speech.

But there have been some recent cases where a court has allowed a claim of incitement to go forward, and those cases shed some light on what is happening here. A 2009 case, United States v. Stewart, found that a spiritual leaders publicized withdrawal of support for a cease-fire could be seen as a call to arms to his followers to commit violence, placing it in the realm of incitement.

Another 2009 case, United States v. Fulmer, found potential incitement where leaders of an animal rights group used their website and email to urge supporters to participate in [illegal] electronic civil disobedience at a specified time. The defendants were found to have engaged in incitement because they clearly had control over the timing of the illegal virtual sit-ins that clogged websites of targeted companies they stated when a virtual sit-in was to start and, when they announced it had been successful, the virtual sit-in stopped.

Both Stewart and Fulmer show how incitement can be found in modern scenarios, and Trumps speech fits right in. Indeed, Trumps order to get em out of here is a much more explicit call to arms than the statements made in Stewart. The immediacy of his order the implied get them out now makes the harm more imminent than in the case of Fulmer.

And the most damning piece of evidence against Trump, and the ACLUs defense of him, is that his other statements approving of violence against protesters clearly are not incitement. Just looking at two of the most offensive of Trumps statements made at prior rallies shows the difference the legally significant difference between what was said before and what was said in Louisville.

First, at a rally on Feb. 1, 2016, Trump told the crowd [i]f you see somebody getting ready to throw a tomato, knock the crap out of them . . . Just knock the hell out of them. I promise you, I will pay for the legal fees.

Like the speech made by Evers in the Claiborne Hardware case, Trumps words at the February rally were not orders or commands to an audience because they contained a contingency: Act violently only if something specific happens. The contingency is key because it removes the immediacy and the command aspects of the speech. Instead, the speech is just advocacy of potential future violence if certain conditions are met.

At his Feb. 23 rally, which was mere days before the Louisville rally, Trump told the crowd, [h]eres a guy, throwing punches, nasty as hell, screaming at everything else, when were talking. . . Id like to punch him in the face, I tell ya. This statement is even further from incitement. Its a statement of approval of violent action, but it isnt even suggesting that others engage in that behavior.

Thats what makes the Louisville rally so unique. Trump didnt say well get them out or if they dont leave, well take them out. There was no promise of future violence, no contingency upon which violence could occur. He didnt express a desire to inflict violence or say he hoped that someone would get them out. He told his audience to get em out. It was a call to act, to get the protesters out of the building. Immediately. According to the complaint, at the Louisville rally, Trump spoke, knowing that violence was likely to occur as a result of his words. And violence did occur.

Rowlands main point in her article is that we shouldnt allow our distaste of Trump to allow courts to shrink the protections of the First Amendment. To that argument, I would counter that we shouldnt allow our love of the First Amendment to blind us to the fact that a man commanded a room to use force against peaceful protesters. Donald Trumps words dont deserve First Amendment protection, even under the very stringent Brandenburg standard. What he did was precisely why the incitement doctrine was created to stop speech that leads directly to violence. This was not advocacy; it was a call to arms.

With all due respect to the ACLU, what Trump did was textbook incitement. The First Amendment should provide him no safe harbor.

More:
Not covered under the First Amendment: The ACLU is wrong about ... - Salon

It was a collision of Hollywood and the nations capital on the eve of the White House Correspondents Association (WHCA) dinner, with one of Los Angeles biggest talent agencies and a news outlet teaming up to host a VIP-filled soiree in Washington.

United Talent Agency and Mediaites Friday event at Fiola Mare restaurant in Washington a fave of former President Obama and Michelle ObamaMichelle ObamaHollywood, DC come together for First Amendment-themed VIP party Capitol File partygoers praise low-key start to correspondents dinner weekend USDA to ease school meal standards MORE was billed as a way to celebrate the First Amendment and excellence in journalism.

The packed bash which blasted tunes such as D.J. Khaleds All I Do is Win and the 2010 Cali Swag District hit Teach Me How to Dougie boasted an impressive crowd of Los Angeles and D.C. types.

Sen. Patrick LeahyPatrick LeahyHollywood, DC come together for First Amendment-themed VIP party The Hill's 12:30 Report Lawmakers talk climate for Earth Day, Science March MORE (D-Vt.) who has connections to Hollywood after making appearances in several Batman movies over the years perused an expansive raw bar before grabbing an oyster.

Veteran journalist Carl Bernstein, whos poised to present awards at the WHCA dinner on Saturday, was eyed doing a thorough investigation of the same raw bar before filling up his cocktail plate.

United Talent Agency made headlines earlier this year after canceling its annual Oscars party to protest President Trumps immigration ban. The agency instead announced it would hold a rally and make a donation to the American Civil Liberties Union and the International Rescue Committee.

Hosted by United Talent Agencys Jay Sures and Mediaites Dan Abrams, among the power-fueled crowd spotted at the festivities Friday: lobbyist Heather Podesta; MSNBCs Greta Van Susteren and husband, lawyer John Coale; SiriusXM Howard Stern Show executive producer Gary DellAbate and his wife, Mary (gushing about how beautiful Washington is); ABC News Rick Klein; Sen. Sheldon WhitehouseSheldon WhitehouseHollywood, DC come together for First Amendment-themed VIP party Overnight Energy: Trump set to sign offshore drilling order Trump's FDA nominee clears key Senate committee MORE (D-R.I.); Designated Survivor actor Kal Penn; model and Top Chef host Padma Lakshmi; CNNs Jake Tapper, Don Lemon, Gloria Borger, Nia-Malika Henderson and Mary Katharine Ham; Tammy Haddad; NBC News Ali Velshi Shark Tank star Kevin OLeary; GOP strategist Ron Bonjean and wife Sara; and CNN Washington Bureau Chief Sam Feist.

See original here:
Hollywood, DC come together for First Amendment-themed VIP party - The Hill (blog)

TRIGGER WARNING The following column contains opinions that you might not share. Despite all cultural signals, this columnist is going to go ahead and write what he thinks. If you believe theres a chance that the columnist, based on past reading experiences or sheer hunch, might have an alternative opinion to your own, please proceed at your own risk.

People who regularly read newspaper columns dont need that warning, because theyve already signed up for free thought. Others cant handle the terrifying possibility that something that someone writes or says might influence the intricate but delicate worldview theyve carefully constructed in the sterile laboratory of their own minds.

This is why we cant possibly have someone as tall and blond as Ann Coulter saying words at the University of California at Berkeley. While Coulters a cult hero to some on the right, shes not my cup of tea, but Id defend her right to speak anywhere even though I probably wont listen, and Id guess shed defend my right to pen columns shed never read.

This phenomenon is flaring up again just after we stopped hearing about safe spaces where puppets and Play-Doh help college students more than the age of 18 process their icky feelings.

I came across a paper released last week by Jeffrey Herbst, president and CEO of Newseum, about what he considered a crisis on college campuses regarding free expression.

With little comment, an alternate understanding of the First Amendment has emerged among young people that can be called the right to nonoffensive speech, Herbst wrote.

The intentions are good, but although I havent been there yet, Tripadvisor says thats the odd thing about the road surface on the boulevard to Hell.

Many millennials just believe that members of certain groups should be protected from offensive speech.

Thats hardly a radical notion. Its actually quite humane. We can call out others for using offensive slurs wherever we like, on campus, on social media, even in your friendly neighborhood Letters to the Editor pages.

The danger lies in tasking the government with legally determining what can and what cannot be said. If the past two election cycles taught us anything, its that the political pendulum of the government swings mightily, and we should expect the definition of offensive speech to swing with it.

I am among the last of people whod complain about millennials on my lawn playing their loud hip hop cassettes, but there does seem to be some generational peculiarities.

According to a recent Pew Foundation poll, 40 percent of millennials support limiting speech that is offensive to minorities. By contrast, only 27 percent of my nihilist Generation Xers, 24 percent of Baby Boomers and 12 percent of the Silent Generation said that government should limit speech in those circumstances.

College campuses are where minds should be challenged most. This is something that education will have to correct, and while their are generational differences with respect to some speech, I still frequently get confused about calls, emails and letters from people who I guarantee are well past 50 about content they disagree with in the newspaper.

Yes, that political cartoon is, in fact, biased. Thats the definition of a political cartoon and thats why The Family Circus isnt on the Opinion Page. No, I dont necessarily expect you to agree with the person quoted in that story. In fact, the controversy about the subject matter is kind of what made it newsworthy in the first place.

Heres a deep, dark editors secret: I dont agree with everything in the newspaper, and I have something to do with a few things that go into it. I disagree with columns, cartoons, points of view in stories on a daily basis. The same goes for other key newspaper employees. We just dont assume that our opinions are the only ones that matter. If we work for a newspaper, we happen to believe in a free marketplace of ideas.

But a newspaper is different from the government. We edit and self-censor. We dont make a habit of offending minority groups. The difference is that we arent subject to the whim of government regulation. Were allowed to have our own principles and our readers help guide them. We welcome the criticism from readers, but if the government wants to censor us, they can expect a fight.

What we do know is that there is not a homogeneous point of view even in relatively conservative McHenry County. There isnt one on college campuses, no matter how much some colleges might wish for one. And letting bad ideas be heard is the only way people know that theyre bad ideas.

We need to fight this tendency to refuse to hear anything we dont want to hear. Were a better country than this and weve been better by allowing speech to remain free for a few centuries now.

Feel free to disagree. Its your right.

Kevin Lyons is managing editor of the Northwest Herald. Email him at kelyons@shawmedia.com. Follow him on Twitter @KevinLyonsNWH.

Original post:
From the Editor's Desk: First Amendment can't be just a fad - Northwest Herald

ANALYSIS/OPINION:

The only thing anyone is allowed to hear on campus is a slogan. Thinking is so 20th century (and early 20th century at that). The adults paid to be in charge have retreated to a safe place, where never is heard an encouraging word and the skies are cloudy all day.

The First Amendment has been under the latest assault for months, and this week Howard Dean, the former governor of Vermont and onetime chairman of the Democratic Party, finally said out loud what certain prominent Democrats have hinted at and alluded to, that free speech does not necessarily include extending it to anyone who disagrees with them.

This poison spread, like so much of the toxic stuff polluting the body politic, from the campuses of the elite. Particularly the University of California at Berkeley, where visiting speakers with something to say cant say it because it might offend the sophomore class. Cowardice rules in the university presidents office and ignorance rules in Sproul Plaza. A speech by Ann Coulter, the firebrand columnist, was canceled because everyone was afraid of what she might say.

Miss Coulter, a slender woman who might weigh 90 pounds stepping out of a shower, was eager to take her chances facing down the mob to say her piece, whatever that piece might have been, but the Berkeley cops, the university administration, the sponsoring Young Americas Foundation and the College Republicans, all trembled, looked one way and then the other, and took a powder lest the hooded brownshirts dressed in black with robbers masks, actually disrupt the tranquility of the campus.

The editors of National Review magazine observed with a bit of acid that Janet Napolitano, the president of the University of California System, was Barack Obamas Director of Homeland Security and was responsible for keeping al Qaeda out of New York and Washington, but she cant secure a lecture hall on a California college campus.

But even in defending free speech and all that free speech means, the editors prefaced their condemnation of cowardice and outrage at Berkeley with something of an apology for defending Miss Coulter: We have had our differences with Ann Coulter over the years, differences that led to our eventually declining to continue publishing her work. She is charming and funny and sometimes brilliant. She is also a glib and irresponsible self-promoter. We suspect that she will not like having that written about her. We suspect that she might write something in reply. But the editors think it is nevertheless wrong, or at least inappropriate, to chase her off the campus. Probably.

Howard Dean likes free speech and the First Amendment well enough, but with appropriate edits and the proper emendations. He looked at the work of the Founding Fathers with a physicians eye and saw that the guarantee was not absolute, as the Founding Fathers thought it was. The amendment does not protect hate speech, which he thinks is anything unpleasant for a good fellow like him to hear.

The Founding Fathers thought they succeeded in writing the guarantee in stark, plain English so plain and so clear, in fact, that even a lawyer could understand it: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. No ifs, ands, or buts, and not a single whereas. Nothing there about hate speech, exclusions, preclusions or exceptions.

This gives some people palpitations. Its no mystery why such people are invariably at the likes of Berkeley and Yale and Middlebury. Youre not as likely to see or hear proposed footnotes to the First Amendment at the likes of Southeast North Dakota State, Utah A&M or Ouachita Baptist College.

In First Amendment law, says Glenn Harlan Reynolds, the distinguished professor of constitutional law at the University of Tennessee, the term hate speech is meaningless. All speech is equally protected whether its hateful or cheerful. It doesnt matter if its racist, sexist or in poor taste, unless speech falls into a few very narrow categories like true threats, which have to address a specific individual, or incitement, which must constitute an immediate and intentional encouragement to imminent lawless action its protected.

Theres a reason why the Founders put the First Amendment first. Its the most important part of the Constitution, and as important as the rest of the Bill of Rights is, the First Amendment is the most important. With free speech, the people are armed to protect all other rights. Without it, the people are disarmed, and tyrants, the vile and ignorant like the students on certain campuses among us, rule. We allow that at our deadly peril.

Wesley Pruden is editor in chief emeritus of The Times.

More:
First Amendment under attack by liberals - Washington Times

That's it. That's the entirety of our Constitution's First Amendment, the central animus of our American way of life that gets dragged out every time someone's banned from Twitter.

There's a lot going on in those few sentences, and it's important to know when and how it applies to common situations -- and, equally as important, when it doesn't.

Let's look at some common First Amendment arguments; illuminated and debunked by a constitutional expert.

If it's a private institution, it's probably not a First Amendment issue.

If it's a public institution, the lines can get blurry.

"If you invite someone to speak on your campus and are a public university, you have to respect their First Amendment rights," Nott says. That doesn't mean you can't put regulations on a speech, like dictating the time, place, venue and suggestions for subject matter. It just means you can't do so in a way that discriminates against a certain point of view.

If students protesting play a hand in moving or canceling a speaker, that presents a different free speech challenge.

"If a speaker were to take legal action for being blocked from speaking, they can't do it against the students. You can't take constitutional action against a group of private citizens," she adds.

Such a complaint would have to go against the school, for allowing the constitutional breach to happen.

This is not a First Amendment issue though plenty of people think it is.

This scenario illustrates one of the biggest misconceptions people have about the First Amendment. Bottom line: It protects you from the government punishing or censoring or oppressing your speech. It doesn't apply to private organizations. "So if, say, Twitter decides to ban you, you'd be a bit out of luck," Nott says. "You can't make a First Amendment claim in court."

However, while it's not unconstitutional, if private platforms outright ban certain types of protected speech, it sets an uncomfortable precedent for the values of free speech.

If you work for a private company, it's probably not a First Amendment issue.

"It's the company's right to discipline their employees' speech," Nott says.

If you're a government employee, it's complicated.

Institutions like police departments, public schools and local government branches can't restrict employee's free speech rights, but they do need to assure that such speech doesn't keep the employee from doing their job. It's definitely a balancing act, and the rise of social media has made it harder for such institutions to regulate their employee's speech in a constitutional manner.

Definitely a First Amendment issue.

But, like pretty much everything in law, there are exceptions and nuances.

"It's definitely unconstitutional, unless you are trying to incite people to violence with your speech," Nott says. Even then, it needs to be a true threat -- one that has immediacy and some sort of actual intent.

It's a private company, so it's not a First Amendment issue.

There's that refrain again: Private companies, like social media sites, can do whatever they want.

But regulating conversations and posts online is a delicate balance for social media giants like Facebook.

"That says, if you are an internet company and you have some way for people to post or leave comments, you are not liable for what they do," Nott says. This covers things like obscenity, violence and threats.

The problem is, this protection often butts up against the enforcement of basic community standards.

"Facebook is under enormous pressure to take down, not just violent and illegal content, but fake news," Nott says. "And the more it starts to play editor for its own site, the more likely it is to lose that Section 230 protection."

This is a First Amendment issue, at the very least in spirit.

"Symbolic speech is protected by the constitution," Nott says. "In essence, you have the right to not speak. You have the right to silence."

In theory, a private employer could require you to stand for the anthem or say the Pledge of Allegiance, but such a requirement may run afoul of the Civil Rights Act. Even in schools, where there have been some cases of students being singled out for sitting or kneeling for the anthem, it would be hard to provide justification for punishment.

"This is an act of political speech, the most protected type of speech," Nott says. "It's completely not disruptive because it's silent." Plus, it is buttressed by court cases that have decided there is no requirement to salute the flag.

A First Amendment issue -- usually.

You are fully within your rights to record the police doing their job in public. And if you get arrested while doing so, your constitutional rights are being violated.

This is, unless you were doing something unlawful at the time of your arrest.

In a heated situation with police, that can also become a gray area. Physical assault or threats could obviously get you arrested, but what about if you were just yelling at the police while recording, say, to get them to stop an act or to pay attention?

"That's tough," Nott says. "If you were disturbing the peace, you can get arrested for that, or for other things. But the bottom line is it's not a crime to record police activities in a public space."

If it's a student publication, it's a First Amendment issue.

Nott points to a landmark Supreme Court cases from 1969 that has acted as a standard for cases involving free speech at public universities and colleges. That's Tinker v. Des Moines Independent Community School District, which you can read more about below.

Another case, Bazaar v. Fortune from 1973, helps tailor these guidelines to the student press by stating that schools cannot act as "private publishers" just because they fund a student publication or program. In other words, they can't punish the publication -- whether it be through student firings, budget cuts or withdrawals or a ban -- just for printing or broadcasting something they don't like.

Now, a gentle reminder that this is just for PUBLIC schools. All together now: Private institutions can (usually) do what they want!

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The First Amendment doesn't guarantee you the rights you ...

That's it. That's the entirety of our Constitution's First Amendment, the central animus of our American way of life that gets dragged out every time someone's banned from Twitter.

There's a lot going on in those few sentences, and it's important to know when and how it applies to common situations -- and, equally as important, when it doesn't.

Let's look at some common First Amendment arguments; illuminated and debunked by a constitutional expert.

If it's a private institution, it's probably not a First Amendment issue.

If it's a public institution, the lines can get blurry.

"If you invite someone to speak on your campus and are a public university, you have to respect their First Amendment rights," Nott says. That doesn't mean you can't put regulations on a speech, like dictating the time, place, venue and suggestions for subject matter. It just means you can't do so in a way that discriminates against a certain point of view.

If students protesting play a hand in moving or canceling a speaker, that presents a different free speech challenge.

"If a speaker were to take legal action for being blocked from speaking, they can't do it against the students. You can't take constitutional action against a group of private citizens," she adds.

Such a complaint would have to go against the school, for allowing the constitutional breach to happen.

This is not a First Amendment issue though plenty of people think it is.

This scenario illustrates one of the biggest misconceptions people have about the First Amendment. Bottom line: It protects you from the government punishing or censoring or oppressing your speech. It doesn't apply to private organizations. "So if, say, Twitter decides to ban you, you'd be a bit out of luck," Nott says. "You can't make a First Amendment claim in court."

However, while it's not unconstitutional, if private platforms outright ban certain types of protected speech, it sets an uncomfortable precedent for the values of free speech.

If you work for a private company, it's probably not a First Amendment issue.

"It's the company's right to discipline their employees' speech," Nott says.

If you're a government employee, it's complicated.

Institutions like police departments, public schools and local government branches can't restrict employee's free speech rights, but they do need to assure that such speech doesn't keep the employee from doing their job. It's definitely a balancing act, and the rise of social media has made it harder for such institutions to regulate their employee's speech in a constitutional manner.

Definitely a First Amendment issue.

But, like pretty much everything in law, there are exceptions and nuances.

"It's definitely unconstitutional, unless you are trying to incite people to violence with your speech," Nott says. Even then, it needs to be a true threat -- one that has immediacy and some sort of actual intent.

It's a private company, so it's not a First Amendment issue.

There's that refrain again: Private companies, like social media sites, can do whatever they want.

But regulating conversations and posts online is a delicate balance for social media giants like Facebook.

"That says, if you are an internet company and you have some way for people to post or leave comments, you are not liable for what they do," Nott says. This covers things like obscenity, violence and threats.

The problem is, this protection often butts up against the enforcement of basic community standards.

"Facebook is under enormous pressure to take down, not just violent and illegal content, but fake news," Nott says. "And the more it starts to play editor for its own site, the more likely it is to lose that Section 230 protection."

This is a First Amendment issue, at the very least in spirit.

"Symbolic speech is protected by the constitution," Nott says. "In essence, you have the right to not speak. You have the right to silence."

In theory, a private employer could require you to stand for the anthem or say the Pledge of Allegiance, but such a requirement may run afoul of the Civil Rights Act. Even in schools, where there have been some cases of students being singled out for sitting or kneeling for the anthem, it would be hard to provide justification for punishment.

"This is an act of political speech, the most protected type of speech," Nott says. "It's completely not disruptive because it's silent." Plus, it is buttressed by court cases that have decided there is no requirement to salute the flag.

A First Amendment issue -- usually.

You are fully within your rights to record the police doing their job in public. And if you get arrested while doing so, your constitutional rights are being violated.

This is, unless you were doing something unlawful at the time of your arrest.

In a heated situation with police, that can also become a gray area. Physical assault or threats could obviously get you arrested, but what about if you were just yelling at the police while recording, say, to get them to stop an act or to pay attention?

"That's tough," Nott says. "If you were disturbing the peace, you can get arrested for that, or for other things. But the bottom line is it's not a crime to record police activities in a public space."

If it's a student publication, it's a First Amendment issue.

Nott points to a landmark Supreme Court cases from 1969 that has acted as a standard for cases involving free speech at public universities and colleges. That's Tinker v. Des Moines Independent Community School District, which you can read more about below.

Another case, Bazaar v. Fortune from 1973, helps tailor these guidelines to the student press by stating that schools cannot act as "private publishers" just because they fund a student publication or program. In other words, they can't punish the publication -- whether it be through student firings, budget cuts or withdrawals or a ban -- just for printing or broadcasting something they don't like.

Now, a gentle reminder that this is just for PUBLIC schools. All together now: Private institutions can (usually) do what they want!

View original post here:
The First Amendment doesn't guarantee you the rights you think it ... - CNN

Last Wednesday, officials of the University of California Berkeley announced that they were canceling a speech to be given by conservative writer Ann Coulter scheduled for April 27. Then last Thursday, facing the prospect of a lawsuit, caught between the First Amendment and the fear of violence, university officials proposed that Coulters speech be moved to May 2 a move she and her supporters quickly rejected, pointing out that there would be no students on campus, as it coincided with a reading period before final exams.

This was a low point for the birthplace of the free-speech movement.

Ive known Ann Coulter for years, and Ive gone to great lengths truly great lengths to disagree with her. After she published a book called Godless, which accused liberalism of being a godless religion, I wrote a book called Soulless, which attacked the right-wing church of hate. I even donned her trademark sleeveless black dress, added about 10 inches of long blonde hair and posed for a cover that looked almost as sexy as hers.

We agree on almost nothing, except for the importance of free speech and public discourse. And we have always gotten along just fine.

Last summer, when a reporter went to her for comments about me, she could not have been more gracious. Thats how it should be in a democracy.

Our Founding Fathers understood something that seems to be getting lost in the ugly partisanship that has gripped our country. You dont deal with speech you dont like by shutting it down. You deal with it by speaking up yourself.Speech is powerful; it is protected not because it is harmless but because the alternative is even worse.And that alternative is what were facing now.

It is not just at Berkeley that this issue is rearing its ugly head. In response to the cancellation of a speech at Claremont-McKenna College by Heather Mac Donald, the president of Pomona College (part of the Claremont Colleges consortium) wrote an open letter defending the principle of free speech. To my shock, frankly, a group of African-American students went on the attack, claiming that white supremacists (Mac Donald is a fellow of the conservative Manhattan Institute, not the Klan) have no right to free speech. Come again? Who is supposed to decide who gets to speak? Do these students not understand that it is precisely oppressed minorities who have historically needed the protection of the First Amendment the most? Do they really think that if speech is regulated, they will be the beneficiaries? On which planet? Under which president?

For those who disagree with Coulter, shutting down her speech only elevates her position. Instead of speaking before a group of students two weeks before exams, the cancellation has brought her national attention and brought Berkeley the criticism it must surely have expected.

But blaming Berkeley is the easy way out. One way or another, the great majority of Americans who support the Constitution must stand up to the minority who think violence and censorship is the answer to speech they dont like. You cannot pick and choose which civil liberties to support, which opinions deserve protection.

As a writer myself, I get more than my share of ugly emails from people who disagree with me. No one enjoys reading those. And as a woman and a Jew, I have sharply felt the sting of hatred. But unless there is a threat of violence (the Constitution provides for shutting down speech if it poses an imminent threat of violence or an imminent threat to national security), the way to handle such ugly emails is simply hitting the Trash button, or better yet, responding with more speech.

Because if you shut down free speech this time, next time, the one who is shut down might be you.

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Is the First Amendment dead? - Times-Enterprise

By Katie Tabeling | Apr 27, 2017

(April 28, 2017) Boardwalk performers who disagree with Ocean City governments registration system could have their day in court, as a U.S. District Court judge has denied the citys motion to dismiss their lawsuit.

The decision issued last Tuesday by Judge William M. Nickerson was that the plaintiffs argument that the regulations restrict their First Amendment rights have merit.

In 2015, several Boardwalk buskers and local activist Tony Christ filed suit seeking $1 million in punitive and compensatory damages as a result of the citys ordinance that established a first come, first serve sign-up system for roughly 30 spaces. The performers and Christ also sought injunctive relief.

Last year, Ocean City adjusted its regulations to a lottery drawing for spaces and officials worked with performers to hear their complaints this past summer. However, the lawsuit continued.

The suit was rejected twice by the court because of procedural missteps, but then attorney David Gray Wright took the case on behalf of the plaintiffs and filed a third suit last September.

While not reaching the merits of the motions to dismiss it is clear that Plaintiffs action arises under the First Amendment of the United States

Constitution, which can be enforced against municipalities through due process clause [in the 14th Amendment, Nickerson wrote in his opinion.

Last year, City Solicitor Guy Ayres filed a motion to dismiss the lawsuit, arguing that the complaint was little more than legal conclusions that the ordinance violates the First Amendment.

Nickerson disagreed and said that the third complaint detailed exactly how performers were limited.

Significantly, in support of this portion of its motion [to dismiss], Ocean City cites no case law in any way related to free speech and expressions claims, he wrote. Upon review of the allegations in the third amended complaint and the relevant case law, the court concludes that the plaintiffs allegations are more than sufficient to state claims for relief.

Several examples Nickerson referenced included magician and ventriloquist Joseph Smith, whose act draws large crowds and would need a larger space than permitted by the ordinance.

Another example was Bob Peasley, a singer and guitar player who suffers from partial paralysis and uses a wheelchair. His physical restrictions make it difficult for him to be physically present for the weekly lottery, the complaint contends.

Considering that, Nickerson wrote that the complaint aptly demonstrates how the ordinance has limited buskers artistic endeavors.

They have further alleged that these restrictions are substantially broader than necessary to achieve Ocean Citys interest, he wrote. While Ocean City may be able to refute those allegations, at this stage in the proceedings, the court must accept them as true and draw all inferences in the plaintiffs favor.

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Buskers' First Amendment lawsuit allowed to proceed - Ocean City Today

NEWSEUM FACEBOOK The U.S. received a barely passing grade for its treatment of First Amendment protections.

The United States earned a C+ overall grade in the Newseum Institutes inaugural First Amendment Report Card, which analyzed the state of the freedoms of religion, speech, press, assembly and petition.

The freedoms of assembly and petition received the highest grades, each earning a B-, while the freedoms of religion and speech each obtained a mark of C+. The panelists gave the freedom of the press the lowest grade: a C-.

Newseum Institute Chief Operating Officer Gene Policinski said these grades may be the results of a citizenry that has taken its First Amendment freedoms for granted, or that has defined these freedoms in narrow ways, according to a piece published on the Newseums News and Commentary section.

With respect to the freedom of the press, Policinski specifically cites surveys dating back to the 1990s that show growing public apprehension about whether the media continues to play a watchdog role.

Policinski also cites the resource dearth that many journalists and media employees now face.

Ken Paulson, the president of the Newseum Institutes First Amendment Center, said the grades given in the First Amendment Report Card are likely related to the current administrations expressed views on the media and press.

President Donald Trump recently announced he will not attend the White House Correspondents Dinner, making him the first sitting president in 36 years to miss the dinner. He has repeatedly attacked news organizations that report unfavorably about his administration, including CNN and The New York Times.

Most notably, Trump called the press the enemy of the American people in a Feb. 17 tweet, while Press Secretary Sean Spicer prevented journalists from The Times and other news organizations from attending an informal briefing on Feb. 24. White House Chief Strategist Stephen Bannon labelled the news media as the opposition party in a Jan. 25 interview with The New York Times.

There are issues involving the presidents stance toward the news media that are of concern. When you single out a free press as being the enemy of the people, thats going to have an unfortunate effect on both the news media and the public perception of the news media, Paulson said in an interview with The Hoya.

Adjudicated by a panel of 15 First Amendment scholars, lawyers, journalists and activists, the rating, released April 20, reported a 2.39 average out of 5 after individually scoring the state of freedom of religion, speech, the press, assembly and petition based on legislation, executive orders, judicial decisions and public opinion during the past year.

The Newseum Institute serves as a branch of Washington, D.C.s Newseum, a museum dedicated to documenting the history of the First Amendment in the United States, and works to promote, explain and defend individual liberties.

Georgetown School of Continuing Studies journalism professor Alan Bjerga said it is difficult to judge these ratings, due to the fact that this is the inaugural First Amendment Report Card.

Its tough to tell because its a first-time rating. You dont know what its relative to, Bjerga said in an interview with The Hoya. C, B, thats very subjective. I would say that being a journalist is not getting any easier.

Bjerga said reporters face unique challenges today, especially as so-called fake news and misinformation spread on the internet and on radio.

Journalists face the challenge of an environment where inaccurate information can be propagated very widely, while accurate, at times less sensational information may struggle to be heard or distributed as widely. At the same time, I think there is a rising appreciation of the necessity and the value of quality journalism, Bjerga said.

Bjerga said he was optimistic about the future for press freedoms, saying journalists are rising to the challenge and determined to thrive in response to the current political climate.

Lata Nott, the executive director of the Newseum Institutes First Amendment Center, reviewed the results, pointing out that while few As were awarded, no failing grades were given.

Nott said Americans need to be more conscious and watchful of problems related to the First Amendment.

Theres a sense that our freedoms need to be watched carefully, that theyre threatened. Theres concerns about what might happen in the future. But at the same time, there was also a sense that these freedoms are resilient. As Americans, we do think that theyre important, Nott said in an interview with The Hoya.

Nott said some problems, like the continuing lack of laws for protecting journalists and privacy, will persist during Trumps administration.

People are probably more worried about the First Amendment than they were before because the Trump administration has taken some action that have been contrary to the First Amendment, Nott said. Theres no federal shield law for reporters. They can be compelled to give up their sources or be jailed, when it comes to federal matters. The thing is, thats always been the case.

Nott emphasized the importance of tracking the quality of the First Amendment freedoms and the importance of dialogue regarding these freedoms. Paulson said he continues to hope the United States moves toward being a more free state.

As a nation, we really need to remember that our strength comes not just from the freedom to speak. Its also about the willingness to listen. Were not making the most of our core freedoms when we are so polarized that we cant benefit from each others ideas, Paulson said. That has to change, and that more than anything else would improve the report card for the First Amendment.

Have a reaction to this article? Write a letter to the editor.

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United States Earns C+ in First Amendment Report Card - Georgetown University The Hoya