Category Archives: First Amendment

Columbia University's Knight First Amendment Institute wants to know why device searches at the border have skyrocketed since the beginning of this year. As was reported earlier this month, the number of devices searched in February 2017 equals the total searched in all of 2015. Even last year's jump from 5,000 to 25,000 searches looks miniscule in comparison. Border device searches are on track to more than double last year's numbers. (h/t The Intercept)

The Knight First Amendment Institute filed FOIA requests with the DHS, ICE, and CBP for "statistical, policy, and assessment records" related to the steep increase in device searches. It's also looking for any legal interpretations the agencies might have on hand that explain their take on the Supreme Court's Riley decision, which instituted a warrant requirement for cell phone searches.

It asked for expedited handling given the significant public interest in all things immigration and border-related, which has climbed along with the device searches thanks to several presidential directives, some of which are being challenged in court.

As the lawsuit [PDF] notes, the public definitely should be apprised of the policies and procedures governing border device searches. If there's been an increase in searches, the public should be made aware of why this is happening, as well as their rights and remedies when it comes to entering or leaving the United States. The suit also points out that several recent reports suggest devices have been taken by government agents by force, or "consent" obtained through threats of further detention and/or violence.

Naturally, the FOIA requests have been greeted with non-responses and indifference by these agencies, which has prompted the Institute's FOIA lawsuit. The FOIA requesters seek the court's assistance in pushing the agencies into quicker responses. To date, it's received nothing but acknowledgements. There have been no estimates of time needed to fulfill the requests or any indication the agencies have even begun searching for responsive documents.

Of course, this immediate lawsuit strategy could backfire. The government has been pushing back against FOIA requesters' lawsuits filed shortly after the statutory response period has expired. It claims these immediate lawsuits are nothing more than certain requesters hoping to push their requests to the front of the line, rather than allow theirs to be ignored/mishandled/stonewalled in the order it was received. Of course, the government's arguments would be more sympathetic if multiple federal agencies didn't repeatedly engage in these tactics and do whatever they can to keep requested documents out of requesters' hands.

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First Amendment Institute Sues Government Over Records Related ... - Techdirt

Washington Examiner

Planned Parenthood and the First Amendment Wall Street Journal (subscription) If the videographers at the Center for Medical Progress had wanted to avoid prosecution, they should have secretly recorded conversations with Michael Flynn. But instead they chose to conduct guerrilla journalism against Planned Parenthood and its ... In first big test in the Trump era, the press fails miserablyWashington Examiner Pence breaks tie in Senate vote targeting Planned Parenthood fundingPolitico Senate Lets States Defund Clinics That Perform AbortionsNew York Times all 189 news articles »

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Planned Parenthood and the First Amendment - Wall Street Journal (subscription)

President Donald Trump complains about news coverage incessantly, but on Thursday he took it to a whole new level. Trump raised the specter of taking the New York Times to court.

Heres the tweet:

The New York Post op-ed by John Crudele that Trump cited is fairly conspiratorial, essentially defending Trumps disproved claim that former President Barack Obama had wiretapped Trump Tower.

This isnt the first time Trump has suggested this kind of thing, previously saying on the campaign trail that he wants to open up libel laws to go after the press. He went on: So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected.

Setting aside that there are no federal libel laws for Trump to change or open up, this is a clear affront to First Amendment protections for free speech and media. The press is purposely given a lot of leeway in the US Constitution as long as its not printing something it knows is false or with reckless disregard as to whether its false to write about and criticize public figures, especially someone like the president.

The Supreme Court has ruled on this several times, with perhaps the most famous case being New York Times Company v. Sullivan. Without this freedom, the press would be stifled, since it would be unable to run anything critical of the president or other public figures without fearing a crippling lawsuit.

This offhand tweet shouldnt be dismissed. This is the president of the United States advocating the rollback of key American institutions and values the First Amendment, free speech, and freedom of the press. Making such threats to the foundation of Americas democracy is a move toward illiberalism. Its not just a tweet.

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Trump just casually attacked the First Amendment - Vox

Patch.com

Colbeck Aims To Restore Clergy's First Amendment Rights - Patch Patch.com Plymouth-Canton, MI - The Canton Republican recently introduced a bill that would allow clergy members to make political statements from the pulpit. and more »

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Colbeck Aims To Restore Clergy's First Amendment Rights - Patch - Patch.com

Forbes

Cash Price Or Credit? Supreme Court Says That Might Be First Amendment Question Forbes A New York law prohibiting merchants from charging extra for credit card transactions might violate the constitutional protection for free speech, the U.S. Supreme Court ruled today, in a unanimous decision that raised questions about the First ... Restrictions on how businesses label credit card/cash price differences are speech restrictionsWashington Post Supreme Court hands win to retailersDrug Store News Supreme Court Says New York Is Regulating Speech But Refuses ...Huffington Post JD Supra (press release) -Reason (blog) -Law.com (subscription) -Supreme Court all 62 news articles »

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Cash Price Or Credit? Supreme Court Says That Might Be First Amendment Question - Forbes

While Democrats and Republicans are increasingly polarized over contentious issues like healthcare and tax reform, they are quietly coalescing around the issue of free speech in states like Colorado.

Consider the free speech bill that unanimously passed Colorados House of Representatives last week. The bill reaffirms the U.S. Constitutions First Amendment freedom of speech and freedom of assembly protections for students at Colorados public universities.

The bill was crafted by Democrat Rep. Jeff Bridges and conservative Republicans Rep. Stephen Humphrey and Sen. Tim Neville. It also had input from the Steamboat Institutes Emerging Leaders Advisory Council members Marcus Fotenos and Colton Lyons, who are co-student body presidents at University of Colorado-Boulder.

The bill ensures the right of students to speak in any way in a public forum and forbids universities from imposing unreasonable restrictions on the time, place and manner of student speech. In practice this means eliminating the use of so-called free speech zones, which cordon off speech to a particular spot on campus.

Free speech zones are a relic of the 1960s when Vietnam War protests were common. According to a tally by the Foundation for Individual Rights in Education, roughly one in six of the countrys top universities have free speech zones that shunt potentially disagreeable speech out of public view.

For instance, University of Colorado Colorado Springs officials recently sent student Brandon Leiser to a free speech zone for campaigning on school property for then-U.S. Senate candidate Darryl Glenn.

Of course, free speech zones are the height of irony. They restrict speech while ostensibly promoting it.

The First Amendments clause, Congress shall make no law abridging the freedom of speech clearly implies all U.S. public property, including college campuses, are protected for free speech. In an Orwellian twist, attorneys for many universities posit that unscheduled speech must take place in the campus free speech zones. Fortunately, CUs student government leaders recognized this irony and are leading the charge to restore free speech across campus.

But the arguments for protecting free speech extend beyond just constitutional principle and fundamental human rights. Free speech should also be encouraged on campus for its utilitarian aspects of fostering learning and understanding the purpose of the college experience. College campuses have increasingly become ideological bubbles, which only can be pierced by exposing students to multiple points of view.

Limiting speech on campus is completely antithetical to everything that university life stands for, says Fotenos. Restricting students ability to express their ideas freely diminishes the quality of debate and discussion that helps individuals progress in their thoughts and ideas.

Yet at college campuses across the country, free speech is under attack. University of California, Berkeley officials were forced to cancel a planned speech by conservative commentator Milo Yiannopoulos earlier this year after students rioted and caused $100,000 worth of damage and physically attacked college Republicans.

Students at Middlebury College last month attacked a professor escorting conservative scholar Charles Murray, sending her to the emergency room with a concussion. A California State University of Los Angeles professor called on students to respond to micro-aggressions (perceived verbal slights) with macro-aggressions, i.e. physical violence. And a University of Missouri professor was fired last year after asking for muscle to forcibly stop a student from exercising his First Amendment rights.

This bill would help stop these abuses and protect Colorados students. It follows similar legislation to outlaw free speech zones and uphold the First Amendment in states like Virginia, North Dakota, and North Carolina.

The Steamboat Institute is committed to such free speech in both principle and practice. Its events, like its annual Freedom Conference, feature speakers who challenge the political status quo and could only occur in a country where free speech rights are sacrosanct.

In todays climate of growing partisanship, its heartening to see politicians from both sides of the political spectrum coming together to support this founding principle. Hopefully, they can continue this momentum on others.

Jennifer Schubert-Akin is the CEO of the Steamboat Institute.

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Jennifer Schubert-Akin: Bill would reaffirm students' First Amendment rights - Steamboat Pilot & Today

Why accept victory when you can keep on fighting and lose?I dont have an answer to this question. If you do, let me know.For a stunning example of this sort of battle, check out Seventh Circuit ruling from last week called Simic v. Chicago, in which a woman challenged a city ordinance against texting while driving.

She didnt have to.

After refusing to pay a ticket for texting and getting hit with an extra $440 penalty for not paying the $100 fine, she made enough of a fuss that the city gave up and said she didnt have to pay.

Some of us might have walked away happy at that point. Tamara Simic filed a class action claiming the ordinance was unconstitutional because it violated the Due Process Clause and the Excessive Fines Clause.

Dont expect an explanation from me. The Seventh Circuit seemed befuddled too.

I bring this up not only because its entertaining but also because there was a missed opportunity here.

Why didnt she challenge the law on First Amendment grounds?

That would have given those judges some pause. After all, texting is a form of speech. It may also be a form of press.

(Interesting side issue: Does freedom of the press apply to radio, TV and fake news? There are no presses involved.)

Can the government ban a form of speech simply because a person is driving?

What if, say, the president of the United States were at the wheel of his armored car and decided he needs to tweet a message to the country? Doesnt he have a constitutional right to do so?

I know there are safety issues involved. Texting can be distracting.

But when the First Amendment is involved, laws must be narrowly tailored to achieve their purpose without infringing on our rights. A blanket ban is clearly overbroad.

Id ban anything involving emojis or weird initials. You need too much attention to figure them out.

Someone please file a class action.

If you need inspiration, take a look at another fascinating First Amendment dispute described in a ruling from the 11th Circuit, also released last week, called Ocheesee Creamery v. Putnam.

The issue: Can Florida prohibit a dairy from calling skim milk skim milk?

The state and the dairy have been fighting over this for four and a half years.

Florida insisted that the skim milk in question created by skimming cream off the top of milk be labeled a milk product, and not skim milk.

Skim milk, at least in Florida, has to have Vitamin A added to it which youd think would make it a milk product, rather than natural skim milk, but the state said the opposite was true. Dont look for logic here. The state was also fine with labeling real milk as imitation milk.

Favorite line from a footnote in the ruling: When questioned at oral argument whether an imitation milk permit is even issuable for a milk product such as skim milk, the state conceded it was something of a square peg in a round hole.

I might have sued on the basis of silliness, but the dairy took the constitutional route its First Amendment right to say skim milk was being infringed.

Now we have a 22-page ruling upholding the right to say skim milk (though not necessarily in a crowded theater).

We also have a First Amendment rulinglast week from a federal judge in California that says its OK for a public university to stop funding a satirical student newspaper because the school stopped funding all student print publications.

You can stop the presses as long theres equal protection (actually, equal non-protection).

Fair enough. Schools shouldnt have to fund newspapers if they dont want to. This case, however Koala v. Khosla is one for our collection of seriously impractical battles.

Before it was cutoff, the newspaper the Koala got $453 for winter quarter last year.

Im guessing federal litigation has cost a little more.

Maybe the lawsuit was meant to be satirical.

Excerpt from:
First Amendment Battles - Courthouse News Service

The U.S. border has been thrown into the spotlight these last few months, with border agents detaining travelers for hours, demanding travelers unlock devices, and even demanding passwords and social media handles as a prerequisite for certain travelers entering the country. As the U.S. government issues a dizzying array of new rules and regulations, people in the U.S. and abroad are asking: are there meaningful constitutional limits on the ability of border agents to seize and search the data on your electronic devices and in the cloud?

The answer is: Yes. As well explain in a series of posts on the Bill of Rights at the border and discuss in detail in our border search guide, border agents and their activities are not exempt from constitutional scrutiny.

In this first post, well focus on the First Amendment.

The First Amendment is meant to safeguard five fundamental rights: speech, assembly, religion, press, and petition to the government for redress of grievances. The First Amendment also protects the right to exercise these basic rights anonymously because, as Supreme Court Justice John Paul Stevens wrote:

But when border agents scrutinize the massive volume of sensitive information in our digital devices or in the cloud, they infringe on First Amendment rights in at least four distinct ways.

Border searches of our digital devices and cloud data thus implicate core free speech rights. Therefore, border agents should at least be required to obtain a warrant supported by probable cause before any such search of our private digital information.

Indeed, the First Amendment requires even more. For example, when police officers demand purchasing records from booksellers (implicating the right to access information anonymously), the First Amendment requires not only probable cause, but a compelling need, the exhaustion of less restrictive investigative methods, and a substantial nexus between the information sought and the investigation. Given that a digital device search is far more invasive upon First Amendment rights than disclosure of what books a person buys at a single bookseller, border agents should be required to do the same.

And the government should take special care with respect to journalists. The Privacy Protection Act prohibits the government from searching or seizing a journalists materials without probable cause that the journalist has committed a crime. While the statute exempts border searches for the purpose of enforcing the customs laws, it does not exempt border searches for other purposes, such as a criminal investigation.

Unfortunately, so far, courts have refused to recognize the free speech implications of digital border searches. But we hope and expect that will change as courts are forced to weigh the increasing amount of sensitive information easily accessible on our devices and in the cloud, and the increasing frequency and scope of border searches of this information.

Without First Amendment protections at the border, the threat of self-censorship looms large. Travelers faced with the risk of border agent intrusion into such sensitive data are more prone to self-censorship when expressing themselves, when considering private membership in political groups, or when deciding whether to access certain reading or media material. This is especially true for people who belong to unpopular groups, who espouse unpopular opinions, or who read unpopular books or view unpopular movies.

Likewise, confidential sources that provide invaluable information to the public about government or corporate malfeasance may refrain from whistleblowing if they fear journalists cannot protect their identities during border crossings. This is why EFF is calling for stronger Constitutional protection of your digital information and urging people to contact Congress on this issue today.

Were also collecting stories of border search abuses at: borders@eff.org

The good news is theres a lot you can do at the border to protect your digital privacy. Take the time to review our pocket guides on Knowing Your Rights and Protecting your Digital Data at the border. And for a deeper dive into these issues, take a look at our Border Search Guide on protecting the data on your devices and in the cloud.

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The Bill of Rights at The Border: The First Amendment and the Right ... - EFF

While it is unlikely that Barack Obama would sue President Trump for libel, he very likely has a strong case.CreditPHOTOGRAPH BY DOMINICK REUTER / AFP / GETTY

One of the strangest sentences in American law comes from Justice Lewis F. Powell, Jr. Under the First Amendment, he wrote, in 1974, there is no such thing as a false idea. That is not a decree that the world brims with truth. He meant that we rely on the marketplace of ideas, rather than on judges and juries, to sort out truth from falsehoodand to continually check our understanding of the truth. The Justice was restating the central tenet embraced inNew York Times v. Sullivan, in 1964, the Supreme Courts most important decision about freedom of speech and of the press. The Court extended the scope of the First Amendment to libel law and held that, even if a citizen stated or a newspaper published criticism about a public official that was incorrect, that mistake could be punished as libel only if the critic knew or suspected that the criticism was false. In 1967, the Court applied this rule to public figures as well.

The premise of the marketplace applies broadly, not just to libel law. The First Amendment protects a lot of harmful speech, including much that is incendiary, offensive, and untrue. That protection covers President Trump, even if he does not believe the torrent of falsehoods he has uttered. Experts on crowd size estimate that his Inauguration attracted a crowd of about a hundred and fifty thousand, but Trump is free to say that there were as many as a million and a half people there. Public officials who oversaw the 2016 election reported that there were scant numbers of votes cast illegallyvirtually none compared to the more than 137.7 million ballots castin totalbut Trumpcan claim that, had it not been for massive voter fraud, he would have won the popular vote, which Hillary Clinton won by 2.9 million votes, or 2.1 per cent of the total.

Justice Oliver Wendell Holmes introduced this concept into American law almost a century ago, writing that the best test of truth is the power of the thought to get itself accepted in the competition of the market. That includes Trumps views that journalists are among the most dishonest human beings on Earth and the enemy of the American people, and that the federal appeals-court ruling that struck down his first travel ban, a month ago, jeopardized the security of the country.

A wide body of scholarship has poked holes in Holmess idea. Fifty years ago, Jerome A. Barron, of George Washington University Law School, instructed that the marketplace fails because it assumes incorrectly that all citizens have access to it, that truth is always among the ideas in the marketplace, and that citizens are rational and will see the truth, rather than being irrational or simply subjective.

Frederick Schauer, of the University of Virginia, summarized the case against the marketplace concept: placing faith in the superiority of truth to persuadeover the authority of a speaker, the frequency with which he makes an assertion, the consistency between the assertion and what a listener believes, and other factors, such aswhether an assertion is illustrated or notrequires an almost willful disregard of the masses of scientific and marketing research to the contrary. (Elizabeth Kolbert wrote last month about new cognitive research that shows the limits of reason.) Schauer wrote that the belief that a good remedy for false speech is more speech, or that truth will prevail in the long run, may itself be an example of the resistance of false factual propositions to argument and counterexample.

These days, the most obvious problem with the notion of a marketplace of ideas is balkanization: instead of there being an overarching marketplace where truth can vanquish falsehood, there are at least two very separate marketsfilter bubbles, as Amanda Hessdescribedthem in theTimesfor Trump supporters and opponents, resulting from the tendency of social networks like Facebook and Twitter to lock users into personalized feedback loops, each with its own news sources, cultural touchstones and political inclinations.

There is also the problem that some bubbles are more counterfactual than others. This was clear from the proliferation of bogus news in support of the Trump campaign,likewhat came out of the Macedonian town of Veles, with its 100 pro-Trump websites, many of them filled with sensationalist, utterly fake news, during the Presidential election, asWiredreported. That counterfeit content energized Trumps partisans, the scholars Michael C. Dorf and Sidney Tarrow wrote recently, and may have been decisive in securing Trumps victory.

Regardless of all the evidence underscoring the limitations of the marketplace concept, it remains good law and the ideas underlying it generally shield Trump. While his claims about the size of his inaugural crowd and voter fraud are clearly wrong, they are, arguably, opinions, and hyperbolic, and they do not disparage anyone directly. Even if we are convinced that they are lies and regard them as damagingif we believe, as the Times columnist David Leonhardt wrote, that Trump lies in ways that no American politician ever has beforethe premise of the marketplace is that our society is better off permitting some lying than censoring all of it. Trumps characterizations of the press are clearly opinions, and obviously polemical, though they are ominous, as the Republican Senator John McCainsaidlast month, because attacks on the press like Trumps are how dictators get started.

But, with a series of tweets early this monthbeginning with Terrible! Just found out that Obama had my wires tapped in Trump Tower just before the victory. Nothing found. This is McCarthyism!Trump crossed an important line. The President used the power of his office to accuse his predecessor, without any proof, of ordering a wiretap, which would be illegal. Last week, Senator Richard Burr, the Republican chairman of the Senate Select Committee on Intelligence, and Senator Mark Warner, the Democratic vice-chairman of that committee, released a letter saying that, based on the information available to us, we see no indications that Trump Tower was the subject of surveillance by any element of the United States government either before or after Election Day 2016. This week, F.B.I. Director James B. Comey testified before Congress that the Bureau has no information to support Trumps claim that Obama wiretapped Trump Tower. Admiral Michael S. Rogers, the director of the National Security Administration, testified, Ive seen nothing on the N.S.A. side that we engaged in such activity, nor that anyone engaged in such activity, and said that he had no information to support Trumps claim that British intelligence wiretapped him at Obamas request.

While it is unlikely that former President Barack Obama would sue Trump for libel, he very likely has a strong case. The First Amendment scholar Geoffrey Stonewrotein theChicago Sun-Timesthat there seems no doubt that Trumps statement was false, defamatory, and at the very least made with reckless disregard for the truth. That is the test for damaging the reputation of a public figure or official: Trump either made his assertions with knowledge of their falsity or with disregard of a high degree of probability that they were false. Obama, Stone is confident, could prove that Trump made his false charge, as the Supreme Court defined the standard, with actual malice.

But his charge of McCarthyism against Obama points in a different direction. In 1954, Senator Joseph McCarthy was censured by the Senate, 6722, for bringing it into dishonor and disrepute and obstructing the constitutional process. The scale of the damage that McCarthy did during his four-year witch hunt for communists in the federal government dwarfs what Trump has done so far, in less than two months in office. The nature of what Trump did, however, by accusing his predecessor of an illegal act without providing any support for the charge, amounts to the same offense that the Senate condemned McCarthy for: abuse of power.

While the libel against Obama as a former President is serious damage, even worse is the damage that Trump did by increasing distrust about his own ability to serve as President. The Constitution reposed a stunning amount of power in the Presidency, the legal scholar Akhil Amar wrote. To retain it, a President must preserve the confidence of the American people that he is exercising it with integrity. Lying destroys that confidence and subverts democratic government.

In the current issue of TheNew York Review of Books, David Cole, the legal director of the A.C.L.U.,writes, The best argument for protecting speech is not that the free marketplace of ideas will lead us to truth, but that it is superior to all the alternatives. The free-speech and free-press clauses of the First Amendment give citizens and journalists protection to criticize public officials, including the President. The reason for that protection, the Supreme Court wrote inNew York Times v. Sullivan,is the peoples distrust of concentrated power, and of power itself at all levels. It is a weighty form of ballast, giving citizens and journalists the freedom to check the tendency of government officials to abuse the authority that voters entrust to them.

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How the First Amendment Applies to Trump's Presidency - The New Yorker

PORTSMOUTH

More than 75 people, including politicians and public arts advocates, gathered around the steps of the Portsmouth Main Library on Wednesday for the unveiling of the sculpture Our First Freedom.

The work by Sue Landerman, commissioned by Support Portsmouth Public Art, honors the First Amendment and longtime Virginian-Pilot columnist Ida Kay Jordan, pictured bottom left at the event.

Landermans sculpture is based on Jordans desk at the newspapers former Portsmouth office and includes a manual typewriter, a pair of glasses, a notepad and, of course, a stack of newspapers.

On top of the pile is an issue of Currents, in which Jordan still has a weekly column.

Members of the arts group, as well as Landerman, Jordan and Mayor John Rowe addressed the crowd.

Teri Winslow, The Pilot

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Virginian-Pilot columnist Ida Kay Jordan honored with First Amendment sculpture in Portsmouth - Virginian-Pilot