Category Archives: First Amendment

At Harvard, 133 members of the faculty have joined the Council on Academic Freedom at Harvard, dedicated to upholding the free speech guidelines adopted by the university in 1990:

Free speech is uniquely important to the university because we are a community committed to reason and rational discourse. Free interchange of ideas is vital for our primary function of discovering and disseminating ideas through research, teaching and learning.

Steven Pinker, a psychology professor at the school and a founder of the group, wrote in an email that achieving this goal is much tougher than generally believed:

To understand the recent assaults on free speech, we need to flip the question: not why diverse opinions are being suppressed, but why they are tolerated. Freedom of speech is an exotic, counterintuitive concept. Whats intuitive is that the people who disagree with me are spreading dangerous falsehoods and must be stifled for the greater good. The realization that everyone feels this way, that all humans are fallible, that however confident I am in my beliefs, I may be wrong and that the only way we can collectively approach the truth is to allow opinions to be expressed and then evaluate them, requires feats of abstraction and self-control.

The example I cited at the beginning of this column the charge that the Biden administration colluded with big tech and disinformation partners to censor the claims of election deniers has proved to be a case study of a successful Republican tactic on several fronts.

Republicans claimed the moral high ground as the victims of censorship, throwing their adversaries on the defensive and quieting their opponents.

On June 6, The Washington Post reported, in These Academics Studied Falsehoods Spread by Trump. Now the G.O.P. Wants Answers, that

the pressure has forced some researchers to change their approach or step back, even as disinformation is rising ahead of the 2024 election. As artificial intelligence makes deception easier and platforms relax their rules on political hoaxes, industry veterans say they fear that young scholars will avoid studying disinformation.

One of the underlying issues in the free speech debate is the unequal distribution of power. Paul Frymer, a political scientist at Princeton, raised a question in reply to my email: I wonder if the century-long standard for why we defend free speech that we need a fairly absolute marketplace of ideas to allow all ideas to be heard (with a few exceptions), deliberated upon and that the truth will ultimately win out is a bit dated in this modern era of social media, algorithms and, most importantly, profound corporate power.

While there has always been a corporate skew to speech, Frymer argued,

in the modern era, technology enables such an overwhelming drowning out of different ideas. How long are we hanging on to the protection of a hypothetical that someone will find the truth on the 40th page of a Google search or a podcast with no corporate backing? How long do we defend a hypothetical when the reality is so strongly skewed toward the suppression of the meaningful exercise of free speech?

Frymer contended that

we do seem to need regulation of speech, in some form, more than ever. Im not convinced we cant find a way to do it that would enable our society to be more just and informed. The stakes the fragility of democracy, the increasing hatred and violence on the basis of demographic categories and the health of our planet are extremely high to defend a single idea with no compromise.

Frymer suggested that ultimately

we cant consider free speech without at least some understanding of power. We cant assume in all contexts that the truth will ever come out; unregulated speech does not mean free speech.

From a different vantage point, Robert C. Post, a law professor at Yale, argued in an email that the censorship/free speech debate has run amok:

It certainly has gone haywire. The way I understand it is that freedom of speech has not been a principled commitment but has been used instrumentally to attain other political ends. The very folks who were so active in demanding freedom of speech in universities have turned around and imposed unconscionable censorship on schools and libraries. The very folks who have demanded a freedom of speech for minority groups have sought to suppress offensive and racist speech.

The framing in the current debate over free speech and the First Amendment, Post contended, is dangerously off-kilter. He sent me an article he wrote that will be published shortly by the scholarly journal Daedalus, The Unfortunate Consequences of a Misguided Free Speech Principle. In it he notes that the issues are not just more complex than generally recognized but also are distorted by false assumptions.

Post makes the case that there is a widespread tendency to conceptualize the problem as one of free speech. We imagine that the crisis would be resolved if only we could speak more freely. In fact, he writes, the difficulty we face is not one of free speech, but of politics. Our capacity to speak has been disrupted because our politics has become diseased.

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Opinion | Behold the Free Speech Chutzpah of the Republican Party - The New York Times

In an updated federal lawsuit, the UB chapter of the Young Americans for Freedom (YAF) is suing the UB Student Association (SA) and three UB administrators. The conservative student club is taking legal action in response to SA policies that allegedly infringed on YAFs constitutional rights to free speech and association.

The lawsuit stems from SAs controversial policy banning certain clubs, including UBs YAF chapter, from affiliating with outside organizations like the Young Americas Foundation, which provides funding to thousands of high school and college chapters across the nation. The SA Senate narrowly passed that policy this March, weeks after a YAF-sponsored speech by right-wing commentator Michael Knowles led to a condemnation of "hateful and dehumanizing rhetoric" from UB President Satish Tripathi and large protests.

At the time of the vote, SA President Becky Paul-Odionhin said a ban on outside affiliations would protect SA from conflicts with outside organizations policies. While SA leaders never referenced YAF by name, Paul-Odionhin told senators, We all know why were doing this.

The ban drew harsh criticism from other affected clubs, including Islamic Relief, Amnesty International and Circle K. They argued that the policy would disproportionately harm service groups and circulated a petition against the ban that drew over 300 signatures.

The UB chapter of YAF originally sued SA in federal court on June 1, claiming the affiliation ban was designed to discriminate against YAF and that it infringed upon the groups freedom of speech. Lawyers for YAF moved to temporarily overturn the ban, and on July 6, the SA Executive Committee repealed the ban, replacing it with a new Acknowledgement of Club Officer Responsibilities. That document lists certain requirements that club officers must agree to before taking office, including that no SA club may be a separate legal entity from SA.

Policies like the [one the] Student Association passed, which ban someone from having an affiliation with a national organization thats blatantly unconstitutional, and there should be policies in place at the university level that prevent that type of discrimination from taking place in the first place, said Caleb Dalton, an attorney representing YAFs UB chapter in the case and a senior counsel with the Alliance Defending Freedom (ADF).

Despite the rule change, YAF amended its suit in late July, claiming that a long-standing SA bylaw prohibiting clubs from being independent legal entities or taking legal actions is unconstitutional and alleging that SA has exhibited bias against YAF because of its conservative political viewpoint.

We believe the latest version of the lawsuit against the UB Student Association like the previous one is without legal merit, and is instead cynically designed to generate headlines and attention instead of protecting the rights of students, SA attorney Aaron Saykin said in an email.

YAFs lawyer, Dalton, primarily works on cases involving higher education. He said most student governments allow clubs to handle their own contracts. He said YAFs difficulty obtaining a contract through SA for Michael Knowles speech was tantamount to an obstacle on the clubs freedom of speech.

Dalton also asserts that by giving SA unbridled discretion to make such rules, UB administrators neglected their duty to protect students rights, an allegation rejected by UB administrators.

We have yet to go through discovery and see how other contracts have been handled, but whether thats through mismanagement or through malfeasance, neither one is acceptable, Dalton said.

SA is a separate, self-governing non-profit organization, led by elected student leaders who serve and represent undergraduate students at the university, UB spokesperson John Della Contrada said in an email. Elected student leaders develop and establish SA policies independent of the university.

The Spectrum has been covering the University at Buffalo since 1950, your donation today could help #SaveStudentNewsrooms. Please consider giving today.

Dalton said that regardless of UBs claims, the university has a responsibility to prevent SA from violating students rights.

The university itself is the one who owns all the fora which students are getting access to by being student organizations, Dalton said. Its the universitys classrooms, the universitys facility space, which are being regulated by the Student Association. The university cant absolve itself from First Amendment responsibility by simply saying, Oh, we delegated that to the Student Association.

ADF is a conservative Christian legal group that is representing YAF in the case. ADF describes itself as the worlds largest legal organization committed to protecting religious freedom, free speech, marriage and family, parental rights, and the sanctity of life and is labeled a hate group by the Southern Poverty Law Center.

ADF has represented YAF chapters in other lawsuits against universities, including an unsuccessful lawsuit against the University of Minnesota and an ongoing suit against SUNY Binghamton.

Sol Hauser is a news editor and can be reached at sol.hauser@ubspectrum.com

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YAF sues SA and UB officials for First Amendment violations - University at Buffalo The Spectrum

A project to prevent sewage overflow north of Tennessee Tech is now expected to cost more than $8 million.

The Cookeville City Council this week will consider an $826,760 amendment to an engineering contract with Gresham Smith for the TTU Pump Station and Storage Facility project.

Most of Tennessee Tech's campus as well as houses in the general area drain to the 17th Street and Lee Avenue sewer pump station, which will be replaced and upgraded. The construction of a 1.5 million-gallon, above-ground, concrete wet weather storage facility is expected to prevent sewer overflows.

"We've been spending a lot of money out there doing sewer rehab trying to get it contained,"Cookeville Water Quality Control Department Director Barry Turner said. "We make some progress, then new leaks happen."

Turner said the sewage overflows happen about eight times a year, during intense rainfall events, primarily at a manhole on Byrne Avenue and one off 10th Street.

"The lines are old," he said. "There are broken clean outs. We have some sump pumps tied on. There are downspouts in the area. We've done smoke testing, CCTV work to look for defects. I think a lot of the problems are on the homeowners' portion of the sewer line."

When the sewer does overflow, Turner said the department has to notify the state, check to make sure pumps are running correctly and clean up any debris.

"It's unsightly and environmentally not sound," he said. "There's potential for people coming in contact with it if it were to get out. What overflows is real diluted from the the rainwater, but we recognize as it as a problem and still want to get it fixed."

The wet weather storage facility is the first project of its kind for the city, according to Turner. But they've been built in other cities such as Knoxville, Nashville and Springfield in recent years as heavy rain events become more common.

Turner said they'll be able to pump water into the wet weather storage facility during a heavy rain event.

"We'll shut off our normal pump station and not pump anything downstream and allow another pump to use the capacity," he said.

The engineering contract was first approved in May 2021 by the council for $118,589. The first amendment to the contract was approved in September 2021 for $9,199, and a second amendment was approved in July 2022 for $1,036,474.

With the third amendment, the cost of the site suitability and preliminary engineering report is expected to increase to $1,991,022.

Turner said the work requires "a more skilled person than we have on most jobs. It's got a lot of controls to determine when to pump to the storage tank rather than going down the system. The inspectors cost quite a bit more than usual."

Turner said he's hoping the construction of the project, which is expected to take 18-22 months, will be ready to bid by the end of this year.

Back in 2020-21, the total project was estimated to cost $6-$7 million. Now it's estimated to cost $8 or $9 million and will be spread over multiple budget years.

Also on the council's agenda this week:

Reappointments to the Alcoholic Beverage Control Board.

Set a public hearing on an ordinance to amend the zoning code relative to recreational vehicles in nonconforming mobile home parks.

Declare surplus vehicles for the customer service department.

Bid for two 225 KVA pad transformers and a pricing adjustment on transformer bids previously approved by the council for the electric department.

Amendments to the bylaws related to membership of the Tennessee Central Railroad Authority.

Wellness Screening Program Agreement for city employees.

Participation in the Tennessee Municipal League's Risk Management Pool Safety Partners Matching Grant Program.

An ordinance to establish an updated Occupational Safety and Health Program Plan.

Bid for gate security system and two pickup trucks for the electric department.

Rescind bid for poly tubing previously approved by the council on Aug. 17 and award bid for poly tubing for the water department.

The council meets at 5:30 p.m. Thursday at Cookeville City Hall at 45 E. Broad St.

More here:
Council to consider $826K amendment for pump station, wet ... - Cookeville Herald Citizen

COLUMBUS, Ohio A letter has been issued to the Ohio Secretary of State's Office trying to stop former President Donald Trump from participating on the 2024 ballot.

"Free Speech for People" and "Mi Familia Vota Education" fund are writing letters to different states citing the United States 14th Amendment and the former president's role in the Jan. 6 insurrection.

Groups are citing Section 3 of the 14th amendment that says no one can hold office in the U.S. if they have engaged in insurrection, or rebellion against the country, or if they have given aid to people who have been involved.

"The argument being made is that by getting the Jan. 6 events," said Justin Buchler, associate professor of political science at Case Western Reserve University. "Donald Trump engaged in an act of sedition under the terms of the 14th Amendment."

The letter reads in part:"You have the authority and responsibility to determine, as part of the state ballot qualification process, whether a candidate for office is ineligible to appear on the Ohio presidential primary ballot.

Mary Cianciolo, interim press secretary of LaRoses office, released a statement to Spectrum News that states, "Ohio law clearly lays out the process for a candidate to seek ballot access, and our job is to follow the law, unless a court orders us to do otherwise. Were not aware of any litigation in Ohio related to this fringe legal theory, and we do not anticipate being told to deny ballot access to any candidate who complies with Ohio law."

Meanwhile, the wording of the amendment itself leaves room for interpretation. It doesnt specify that a candidate needs to be convicted of insurrection or rebellion. The legal experts Spectrum News spoke with say defining those two actions is not an easy task.

"Donald Trump has been charged with conspiracy to defraud the United States and obstruction, but not insurrection," Buchler said. "So, even with regard to Jan. 6, the weakest charges that he, that Donald Trump, might have faced would have been something like incitement. But even that would have been a difficult set of charges because of First Amendment protections."

"Who decides what is the burden of proof?" Bradley Smith, Blackmore Nault Professor of law at Capital University Law School, said. "Is the burden of proof like a criminal law beyond a reasonable doubt? Or is it more like a civil ruling, just preponderance of the evidence? And then who gets to decide that?"

The 14th Amendment was ratified immediately after the Civil War took place in the United States. The purpose of this clause was to stop confederates who had been deemed a threat to democracy in the late 1860s from taking office in the United States government.

Original post:
Groups cite the 14th Amendment to keep Trump off the ballot - Spectrum News 1

On Thursday, the Reporters Committee for Freedom of the Press announced that attorneys Mara Gassmann, Elizabeth Soja, and Denver Nicks have joined the organizations powerhouse legal team. Reporting to Deputy Executive Director and Legal Director Katie Townsend, Gassmann will lead the organizations robust amicus practice, while Soja and Nicks will expand the capacity of the Local Legal Initiative, which provides local news organizations with the direct legal services they need to pursue enterprise and investigative stories in their communities.

We are excited to welcome Mara, Beth, and Denver to our growing legal team and expand our capacity to provide more reporters, editors, documentary filmmakers, and others with the high-quality legal assistance they need to produce powerful reporting, said Townsend. Their experience and passion for this important work will help us continue to meet the clear and pressing legal needs of journalists and newsrooms across the country, particularly those in local communities.

As a senior staff attorney, Gassmann joins the Reporters Committee from Ballard Spahr LLP, where she was most recently of counsel. Prior to Ballard Spahr, Gassmann was an associate at Levine Sullivan Koch & Schulz LLP, and clerked for Judge Leonie M. Brinkema in the U.S. District Court for the Eastern District of Virginia. She holds a J.D. from Georgetown University Law Center.

Last year alone, Reporters Committee attorneys submitted more than 40 friend-of-the-court briefs, several of which were joined by over 30 news organizations, in important First Amendment cases. In 2023, the organization continues to mobilize broad coalitions of major media and transparency organizations to bring the news medias perspective to pressing press freedom issues, including subpoenas targeting journalists, unconstitutional prior restraints, court access, and several matters that came before the U.S. Supreme Court.

As a staff attorney, Soja will focus primarily on providing support to Local Legal Initiative attorneys based in Colorado, Oklahoma, Pennsylvania, and Tennessee, helping them litigate important matters involving access to judicial records and proceedings, freedom of information, libel, and other newsgathering and First Amendment issues.

Prior to joining the Reporters Committee, Soja was an associate attorney at Stevens Martin Vaughn & Tadych, PLLC. She holds a J.D. from the University of North Carolina School of Law.

In just the first two years of the Local Legal Initiative, Reporters Committee attorneys represented more than 120 journalists and news organizations across five states. Among other outcomes, that work led to the unsealing of more than 3,300 pages of court records, and the release of over 5,500 pages of public records and more than 29 hours of police body-worn camera footage disclosures that powered investigative reporting and helped shape policies in favor of greater government transparency.

As the Local Legal Initiative staff attorney in Oklahoma, Nicks will build upon the programs work to help local journalists and news organizations in the state exercise and defend their newsgathering rights, access public records and court proceedings, and hold state and local government agencies and officials accountable.

Nicks was most recently an associate attorney at Barnes Law in Tulsa, Oklahoma, and before that a longtime journalist. He holds a J.D. from Tulane University Law School.

Since its launch in 2020, the Oklahoma Local Legal Initiative has had a significant impact on government transparency and accountability. Earlier this year, for example, Reporters Committee attorneys successfully sued the McCurtain County Sheriffs Office and Sheriff Kevin Clardy on behalf of the McCurtain Gazette for records related to the death of a Choctaw Nation citizen following a violent encounter with local law enforcement. The lawsuit resulted in the release of bodycam footage and other requested records; it was also featured in a New Yorker story about the McCurtain Gazettes efforts to investigate the local sheriffs office.

Over the last five decades, the Reporters Committee has shown how legal support makes a meaningful difference in empowering journalists to pursue the kinds of reporting that informs communities, inspires accountability, and underpins our democracy, said Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press. We are thrilled to welcome each of these attorneys, who will only strengthen our ability to continue to provide vital legal resources and services to journalists and newsrooms who need them, all at no cost.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter.

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Reporters Committee welcomes three attorneys to legal team - Reporters Committee for Freedom of the Press

(Photo by Evan Vucci-Pool/Getty Images)

Donald Trump scored a partial victory in his battle to try his case in the press as Judge Tanya Chutkan imposed a less restrictive protective order than the one sought by Special Counsel Jack Smith in the election interference case.

Trump claims a free speech right to discuss the case, vowing recently to supporters in New Hampshire, I will talk about it. Theyre not taking away my First Amendment. Similarly, his lawyer John Lauro made clear in the course of afull Ginsburg on the Sunday news shows that he intends to publish all of the discovery in the case.

What the Biden administration is trying to do is prevent the press from learning about exculpatory and helpful information, evidence that the people have a right to know about, he complained on ABC, repeating the claim on several other networks.

This morning, Lauro duked it out with the DOJs Thomas Windom in Judge Tanya Chutkans courtroom. From the jump, it was clear that the prosecutors werent going to get the blanket order theyd been hoping for. The court reminded the government that non-disclosure orders must be granted for good cause, and the burden is on the moving party. Instead she protected only materials designated as sensitive, although that appears to constitute the bulk of the voluminous discovery here.

But in more or less every other respect, the government got what it wanted. Lauro argued for a relaxed standard which would allow the defense to disseminate sensitive discovery materials to volunteer attorneys or others without paid employment arrangements to assist with the preparation of this case. The government pointed out that this might permit Trump to share the entirety of its production with the six unindicted coconspirators named in the indictment, all of whom are attorneys. The court seemed highly receptive to this argument, and the final order limits sharing to persons employed to assist in the defense, persons who are interviewed as potential witnesses, counsel for potential witnesses, and other persons to whom the court may authorize disclosure.

There was further sparring this morning about Trumps unchaperoned access to sensitive discovery, particularly in light of his habit of targeting civil servants as well as his insistence that he has a constitutional right to say anything he likes about pending litigation. The protective order specifies that, if Trump accesses sensitive evidence outside the presence of his counsel, he cant take notes, or even look at it while hes got access to a photocopier or a cell phone.

Most saliently, Judge Chutkan seemed unimpressed by the defenses argument that courtroom procedures would have to yield to the vicissitudes of Trumps presidential campaign. Lauro seemed highly concerned that his client might blurt something out in the heat of the campaign and then be found in contempt of court.

That has to yield. Regardless of what is going on with his, I hate to say, his day job, this is a criminal case, Judge Chutkan countered, according to Law & Crimes Brandi Buchman, who was in the courtroom. The need for this to proceed in normal order and protect witnesses and the integrity of the process means there are going to limits on the defendants speech.

And a day after striking a sealed pleading filed by the government, the court signaled its awareness of public interest, modifying the governments proposed order by instructing the parties that any motion to seal must be accompanied by a redacted copy of any included Sensitive Materials for the Clerk of the Court to file on the public docket if the court were to grant the motion for leave to file under seal.

Prosecutors have thus far not moved for a gag order, although they have flagged multiple incendiary posts by the former president on his Truth Social platform. Judge Chutkan herself referred to them, obliquely threatening to accelerate the case if Trump insists on screaming to potential jurors about the case.

The more a party makes inflammatory statements about this case which would taint the jury pool or intimidate witnesses, the greater the urgency will be that we proceed to trial to ensure a jury pool from which we can select an impartial jury, she warned.

Trump lawyers, special counsel square off in court on limits for pretrial evidence in Jan. 6 indictment [Law & Crime] US v. Trump[Docket via Court Listener]

Liz Dyelives in Baltimore where she writes about law and politics and appears on theOpening Argumentspodcast.

Continued here:
As Trump Howls About First Amendment, Court Issues Protective Order In Trump Jan 6 Case - Above the Law

(Photo by Drew Angerer/Getty Images)

Just found out that Crooked Joe Bidens DOJ secretly attacked my Twitter account, making it a point not to let me know about this major hit on my civil rights. My Political Opponent is going CRAZY trying to infringe on my Campaign for President. Nothing like this has ever happened before. Does the First Amendment still exist? Did Deranged Jack Smith tell the Unselects to DESTROY & DELETE all evidence? These are DARK DAYS IN AMERICA! Former Leader of the Free World

Donald Trump is currently ranting into the void about yesterdays DC Circuit order upholding sanctions on Twitter for failing to turn over his account information to Special Counsel Jack Smith in timely fashion. The attack took the form of search warrant signed by a magistrate judge, accompanied by a non-disclosure order:

On January 17, 2023, the government applied for, and obtained, a search warrant that directed Twitter to produce data and records related to the @realDonaldTrump Twitter account. At the same time, the government applied for, and obtained, a nondisclosure order, which prohibited Twitter from disclosing the existence or contents of the search warrant to any person. Based on ex parte affidavits, the district court found probable cause to search the Twitter account for evidence of criminal offenses. Moreover, the district court found that there were reasonable grounds to believe that disclosing the warrant to former President Trump would seriously jeopardize the ongoing investigation by giving him an opportunity to destroy evidence, change patterns of behavior, [or] notify confederates. The warrant required Twitter to tum over all requested information by January 27, 2023. The nondisclosure order was to remain in effect for 180 days after its issuance.

The Circuit Courts ruling paints Twitter as barely functional under the ownership of Elon Musk.

On January 17, 2023, the DOJ promptly submitted the warrant through the companys portal for legal requests a portal which exists because actually something like this has happened before. But in the event, prosecutors discovered that the portal, like two-thirds of Twitters 2022 workforce, was inoperative.

On January 19, the portal came back to life, and the DOJ managed to effect service, after which nothing happened.

Reached by the government on January 25, Twitters counsel had heard nothing of the warrant, but committed to complying speedily. On February 1, four days after the compliance deadline, Twitter announced that it would not comply after all and that it intended to challenge the order in District Court.

In its challenge, Twitter accepted the sufficiency of the warrant but claimed that the non-disclosure provision violated its First Amendment right to communicate with its client. Bizarrely, it argued that Trump might have a right to assert executive privilege over his communications on the platform, and thus demanded the right to inform him of the warrant. At a hearing on February 7, Judge Beryl Howell rejected those arguments, as well as Twitters demand that the court stay compliance with the supposed hit on Trumps civil rights while it litigated the secret order to infringe on his campaign for president.

Asked by Judge Howell if Twitter could comply with the warrant by close of business that day, the companys counsel replied, I believe we are prepared to do that. Yes, Your Honor.

As added incentive, the court imposed a geometric sanction of $50,000, doubling each day the company failed to comply. Which it did, for another four days, netting itself $350,000 in fines.

The company appealed, alleging that Judge Howell had abused her discretion by forcing compliance with the warrant while the non-disclosure appeal was still pending, imposing sanctions, and abridging its First Amendment rights. But Twitter got no more joy with the appellate panel, consisting of Judges Pillard, Childs, and Pan, than it had with the trial judge.

In sum, we affirm the district courts rulings in all respects. The district court properly rejected Twitter s First Amendment challenge to the nondisclosure order. Moreover, the district court acted within the bounds of its discretion to manage its docket when it declined to stay its enforcement of the warrant while the First Amendment claim was litigated. Finally, the district court followed the appropriate procedures before finding Twitter in contempt of court including giving Twitter an opportunity to be heard and a chance to purge its contempt to avoid sanctions.

Apparently, the First Amendment still exists, but it does not allow social media companies to tip off the subject of a search warrant that the government is looking at his records if the government proves to the satisfaction of a federal judge that hes pretty likely to destroy them if notified.

Incidentally, on June 30, the DOJ filed anex parte motion notifying the trial judge that it was withdrawing the non-disclosure order, allowing Twitter to tell Trump about the warrant. So presumably, he learned about it weeks ago although considering his attention span and the state of Twitter these days, who knows?

DARK DAYS IN AMERICA!

Elizabeth Dyelives in Baltimore where she writes about law and politics and appears on theOpening Argumentspodcast.

Originally posted here:
'Does The 1st Amendment Still Exist,' Trump Howls, After Multiple Courts Sign Off On Twitter Warrant - Above the Law

The outrageous law enforcement assault on the Marion County Record newspaper raises a veritable forest of red flags.

Why would a judge sign off on an apparently illegal search? What type of officials would willingly execute such an abuse of power? Could any convoluted sequence of liquor permit infighting possibly justify such drastic measures? Are we still living in a state and nation where the First Amendment of the U.S. Constitution applies?

We dont know definitive answers to any of these questions yet, and the story may well still surprise us. In the meantime, the Record itself and Kansas Reflectors story offer starting points.

This morning, though, Id like to write about a part of the story that we do know. We know that law enforcement officials raided the office of a news outlet and carted away computers and cellphones. On its own, with no other background or context, this sets an incredibly destructive precedent.

Not just in Marion.

Newsroom raids in this country receded into history 50 years ago, said John Galer, chair of the National Newspaper Association and publisher of the Journal-News of Hillsboro, Illinois.

Today, law enforcement agencies by and large understand that gathering information from newsrooms is a last resort and then done only with subpoenas that protect the rights of all involved. For a newspaper to be intimidated by an unannounced search and seizure is unthinkable in an America that respects its First Amendment rights. NNA stands by its community newspapers and calls upon top officials in Kansas to immediately return any property seized by law enforcement so the newspaper can proceed with its work.

An attack on a newspaper office through an illegal search is not just an infringement on the rights of journalists but an assault on the very foundation of democracy and the publics right to know. This cannot be allowed to stand.

Emily Bradbury, executive director of the Kansas Press Association

Emily Bradbury, executive director of the Kansas Press Association, added strong words on behalf of local outlets: An attack on a newspaper office through an illegal search is not just an infringement on the rights of journalists but an assault on the very foundation of democracy and the publics right to know. This cannot be allowed to stand.

Imagine for a moment that youre the editor and publisher of a small weekly newspaper somewhere else in Kansas. Imagine too that youve been speaking with a source about potential wrongdoing by a prominent resident. That resident happens to have a friendly relationship with the local police department. You know that publishing the story, even in the best of times, will create a firestorm in your little community.

Now imagine that you read the coverage coming out of Marion County. You see that printing such a story or even reporting it might put you at risk of being raided. It might put your employees at risk. It might threaten the entire financial stability of your business.

So do you publish the story? Or do you think twice? Do you potentially delay the piece for a couple of weeks until this all blows over?

Well, do you?

Thats the damage already done in Marion. Thats the damage already done to Kansas journalism. No matter how the story shakes out if officials return all the seized computers and cellphones this afternoon a message has been sent. That message conflicts with the tenets of an open society. It conflicts with free expression. It shuts down the ability of democracys defenders to do their jobs, informing and educating the public.

Or as Record publisher and editor Eric Meyer told us yesterday: Its going to have a chilling effect on us even tackling issues. Whats more, it will have a chilling effect on people giving us information.

A toothpaste tube has been squeezed, hard, and theres no getting all that minty fresh goo back inside its container.

No matter the size of the outlet, no matter the reporter, the memory of this raid will linger. Stories will be slowed or go unwritten. Towns, cities, counties and entire states will lose out on vital knowledge about the misdeeds of powerful people. Thats why I care, and thats why the Reflector cares. Thats why journalists across this country, when they learn about what happened in Marion County, will care too.

Look, I understand. Journalists and journalism can be pretty annoying at times. But no one should doubt our commitment to doing our best for both readers and our communities. Folks who stand in the way of us doing that job dont just pick a fight with us. They pick a fight with the people we serve.

One more point. If you revere the Constitution as so many conservatives and liberals claim to do these days dont just sit back and watch. Step up to defend our shared freedoms. Because if the Marion County Record cant report and print freely, neither can the rest of us.

And neither can you.

Clay Wirestone is Kansas Reflector opinion editor. Through its opinion section, Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.

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In Marion County newspaper raid, a grim threat to Kansans' First Amendment rights - Kansas Reflector

Donald Trumps impact on the First Amendment

In so many different respects, it is hard to think of any other single person whose actions have had such a significant effect on the public and courts' view of the First Amendment than Donald Trump. On the one hand, it has been argued that Trumps many defamation actions against others are prime examples of the need for First Amendment protection. On the other hand, some now maintain that recent criminal and civil actions against Trump exemplify the need for First Amendment protection. Either or both ways, Trump is continuing to have a major impact on the law and culture of free speech in America. So much so that an entire book and a big one at that! could be written about the unending First Amendment battles connected in one way or another to our former president.

Wait a minute! Now that I think of it, such a book has already been written in 2018 by professor Timothy Zick, titled, The First Amendment in the Trump Era. That book cataloged and analyzed the various First Amendment conflicts that occurred during Trumps presidency.(See FIREs So to Speak podcast interview with Zick).

Related

For all its merit, however, Zicks book was published five years ago which in Trump time is a long while. Hell, since then, Robert Corn-Revere published The Retaliator in Chief: The Case Against Donald J. Trump, in FAN 202.2 on March 4, 2019, and Knight First Amendment Institute v. Trump was litigated in the Second Circuit and the Supreme Court.

There has been so much more First Amendment cannon fodder since then that professor Zick would do well to consider a sequel albeit with the understanding that it too would likely become dated in just a few years. But the good professor is still in the Trump/free speech game, as evidenced by his recent comments in Politifact: Conflating protected political advocacy with conspiring to commit federal crimes might work to some extent in the court of public opinion, but wont be much of a defense in an actual court.

Trumps lawyers continue to fly a different conceptual flag. For example, consider their First Amendment challenges to the Justice Departments request for a protective non-disclosure order in the 2020 election case. In the Response in Opposition to Governments Motion for a Protective Order for United States v. Trump, the defense argued Instead of hewing to this narrow framework, the government requests the Court restrict all documents produced by the government, regardless of sensitivity, contrary to established law and President Trumps First Amendment rights.

Various parties have weighed in on either side of the issue:

In 2018, before the 2020 election and before Trumps multifront challenge to the results, there was a striking level of bipartisan support for free speech including tolerance for lies. But that bipartisan support changed by 2023. Thomas B. Edsall, The New York Times (Aug. 2)

In a trial about First Amendment rights, the government seeks to restrict First Amendment rights, Trumps lawyers write in the filing. Worse, it does so against its administrations primary political opponent, during an election season in which the administration, prominent party members, and media allies have campaigned on the indictment and proliferated its false allegations. Brittany Bernstein, National Review (Aug. 2)

Even assuming that Smith can prove Trump lied, there would still be constitutional barriers to criminalizing his false statements. Jonathan Turley, The Hill (Aug. 5)

Compare those sentiments to these:

Our Constitution is designed to stop people from trying to overthrow elections and trying to overthrow the government, Raskin, a former constitutional law professor, told NBCs Meet the Press. But in any event, there's a whole apparatus of criminal law which is in place to enforce this constitutional principle. That's what Donald Trump is charged with violating. Rep. Jamie Raskin via Ken Tran, USA Today (Aug. 6)

Trump did not just state the false claims; he allegedly used the false claims to engage in a conspiracy to steal the election. There is no First Amendment right to use speech to subvert an election, any more than there is a First Amendment right to use speech to bribe, threaten, or intimidate. Richard Hasen, Slate (Aug. 1)

And this:

Starting roughly in the 1980s, the political valence of free speech arguments has changed, fueled in part by the feminist anti-pornography movement, in part by the movement of the Republican Party in a more libertarian and therefore anti-regulatory direction, in part by concerns about racist and other forms of hate and in part by the growth of what is now labeled political correctness. Frederick Schauer, The New York Times (Aug. 2)

Next, consider the swirl of First Amendment fights that have made recent news in Trumpland. Only a few days ago, a federal district court dismissed Trumps counterclaim in a defamation lawsuit against E. Jean Carroll. (Recall that last year a court awarded $5 million to Ms. Carroll in her sex abuse and defamation case against Trump, and his bid for a retrial was denied.) And late this past July another federal judge dismissed Trumps $475 million defamation suit against CNN. Then last July the Trump Media and Technology Group sued The Washington Post for defamation to the tune of $3.78 million in compensatory and punitive damages.

Furthermore, Steve Brill, the man who brought us Court TV, is urging that the Trump election indictment case be televised: Federal court rules do not allow cameras in any criminal trials. However, no matter which side of this Donald Trump case you may be rooting for, you should want those rules to be suspended so that this trial can be televised live.

On related fronts: John Eastman is busy raising First Amendment defenses in his California Bar discipline case (see FAN issues 385 and 385.1 by Stephen Rohde), though his attorneys are asking that the proceeding be postponed, arguing that their client is concerned that he may be criminally charged by special counsel Jack Smith.

Let us not overlook the former mayor of New York: In his response to a lawsuit filed by two Georgia election workers who said Rudy Giuliani harmed them by falsely alleging they mishandled ballots in the 2020 presidential election, Giuliani has admitted lying. But he says the women suffered no harm and claims that his lies are protected by the First Amendment to the U.S. Constitution. Mr. Giuliani has also been exercising his free speech rights full throttle in his condemnation of special prosecutor Jack Smith for alleged abridgments of Trumps First Amendment rights.

Let us also not forget the Dominion defamation line of cases. As Sam Levine recently reported in an article in The Guardian:

When Dominion settled its closely-watched $787.5m defamation lawsuit against Fox last month, its lawyers made it clear that the company would continue to pursue legal action against those who spread false claims about the company and the 2020 election. The company still has major defamation cases pending againstRudy Giuliani, Sidney Powell, Patrick Byrne, and Mike Lindell all allies of Donald Trump who were some of the most prominent figures that spread election lies involving the voting machine company on television and elsewhere after the 2020 election.

And back in late December 2021, a federal judge rejected the Proud Boys First Amendment defenses in one of the Jan. 6 conspiracy cases.

Related:

Robert Klemko, Cop-watchers are now YouTube celebrities. Theyve changed how police work, The Washington Post (Aug. 7)

By the end of [one] night, [Christopher] Ruff had recorded a half-dozen interactions between police and civilians, some of which heposted on YouTube. Later that night he encountered the same sergeant and unloaded a barrage of profane insults. It was a typical Friday for the 33-year-old, part of his personal crusade to stop what he sees as overstepping, oath-breaking law enforcement. His encounters with police have been viewed more than 65 million times.

With varying degrees of antagonism and legal expertise, the online movement known as cop-watching or First Amendment auditing has swelled in popularity in recent years, capturing the imaginations of millions of Americans who are examining their relationship with policing after George Floyds murder at the hands of police in Minneapolis in 2020.

Cases decided

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Cert.granted and case remanded

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Immunity under Foreign Sovereign Immunities Act

Liability Anti-Terrorism Act

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FAN 388: 42 women who argued First Amendment free expression cases before the Supreme Court

This article is part ofFirst Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the articles author(s) and may not reflect the opinions of FIRE or of Mr. Collins.

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A new cultural and constitutional paradigm: The unending First ... - Foundation for Individual Rights in Education

A dangerous federal court ruling last month restricted communications between the federal government and social media companies, preventing government officials from flagging disinformation. The decision in Missouri v. Biden was so sweeping that it not only prohibited the federal government from sharing truthful information with social media companies, but it also applied to all those acting in concert with them. The courts mandate threatens the ability of civil society groups like the Brennan Center to communicate with local, state, and federal officials about the rampant election-related misinformation and disinformation that imperils our democracy.

The ruling has been put on hold pending appeal, and a hearing is set for Thursday. At stake is the ability of voters, advocacy groups, researchers, election administrators, and other government officials to respond to online purveyors of election denialism and other harmful misinformation.

In May 2022, the attorneys general of Missouri and Louisiana joined with private plaintiffs to file the lawsuit against the Biden Administration, alleging that federal officials violated the First Amendment by significantly encouraging or coercing social media companies to remove or demote content on their platforms. The plaintiffs argued that the officials targeted conservative-leaning speech spanning a range of topics, including the origin of the Covid-19 pandemic, the efficacy of masks and vaccines, the security of voting by mail, and the integrity of the 2020 presidential election. According to the plaintiffs, government officials restricted the free flow of information online by getting social media companies to remove or demote content in these areas, thereby violating the First Amendment.

In an extraordinary decision, the court ruled that the plaintiffs will likely be able to prove that the government used its power to silence the opposition, likening the governments alleged actions to George Orwells dystopian Ministry of Truth. The order prohibited the government from urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech, when communicating with social media companies.

In its ruling, the court broadly defined protected free speech to encompass all political views and content, which would apply to spreading misinformation. The injunction included carve-outs that permitted the government to inform social media companies about certain limited topics, including criminal efforts to suppress voting, national security threats, and foreign election interference. However, the exemptions are vague and undefined, leaving the scope of the orders prohibitions unclear.

The Brennan Center, the Lawyers Committee for Civil Rights Under Law, and Common Cause have filed a friend-of-the-court brief opposing the district courts deeply flawed decision. Because the order is filled with vague proscriptions and is unclear about whom it binds and precisely what speech it carves out from its ban, it endangers civil society groups efforts to fight the disinformation used to deceive or intimidate voters, harass and intimidate election workers and their families, and erode trust in electoral outcomes.

This work is central to the Brennan Centers mission, which requires robust engagement with election administrators to protect equal access to the ballot. There are numerous examples of how false or misleading information was surgically focused on certain demographics during the 2020 election in an attempt to disenfranchise voters and influence elections, and of how the malicious use of personal information (aka doxing) triggered a wave of harassment and threats against election officials and workers. In an investigation, Reuters identified more than 100 threats of death or violence made to U.S. election workers during the 2020 presidential election. Across several states, local administrators received harassing and frightening texts and phone calls, and one was even confronted outside her home, simply for doing their jobs.

We routinely notify both government officials and social media companies about this kind of misinformation to ensure that voters receive accurate information and so election workers can perform their duties free from intimidation. While the courts order purported to carve out exceptions for potential criminal conduct, those exceptions were too narrow to protect our work because the order explicitly restricted the governments ability to alert social media companies about doxing (which is not always a crime), as well as speech that risks voter confusion but may lack criminal intent. When responding to misinformation about elections, the Brennan Center and our allies are typically not positioned to determine the intent of the speaker. Moreover, although it whittles away at the fabric of democracy, the dissemination of false information is often not illegal.

The government has a responsibility to facilitate democratic participation and, importantly, the government merely sharing information about the accuracy and impacts of the content hosted by social media platforms does not automatically amount to a constitutional violation.

Further, social media companies various content policies play a vital role in fostering election protection efforts. During election periods, most platforms implement policies that promote accurate information from credible sources, require additional reviews for election-related content, and flag and remove disinformation when possible. The government should not be barred from helping the companies in those efforts. However, coercive behavior that seeks to eliminate viewpoints from the public domain with which the government disagrees violates the First Amendment, and clear judicial guidance and line drawing that mark the bounds of appropriate government conduct are critically needed.

Yet, the ruling issued last month does not offer clarity. Instead, and quite paradoxically, just as the court condemned what, in its view, appeared to be the governments effort to censor right-leaning speech, the ruling functions as an unconstitutional prior restraint its own form of censorship that chills the ability of civil society groups to speak freely to government officials for legitimate and lawful purposes that promote a healthy democracy. Because the injunctions ban on information sharing turns on the purpose of the governments communications with civil society groups, it operates as a content-based restriction on speech, which violates the First Amendment.

Courts must uphold and defend constitutional guarantees, and First Amendment rights deserve rigorous protection from government coercion that amounts to censorship. Yet the efforts taken by groups like the Brennan Center and social media companies to combat election misinformation and promote truth about our elections are not acts of censorship. Rather, they are crucial to the rights of all to participate in our democracy rights that are hard-earned and easily lost. The government must play a role, and courts should provide clear guidelines about what speech is constitutionally protected. The district courts ruling misses the mark and instead muddies the landscape, and the appeals court should not let it stand.

More here:
The Government Shouldn't Be Barred from Countering False ... - brennancenter.org