Category Archives: First Amendment

Elon Musk revealed his intention to fund a national signature campaign for the First Amendment on X, sparking a mixture of praise and skepticism. While some lauded his commitment to free speech, others questioned his motives.

Musk's advocacy for free speech has been evident since acquiring X (formerly Twitter), where he confronts censorship attempts. However, X has now allegedly also become a platform for Nazi propaganda.

Elon Musk recently announced his plans to fund a national signature campaign supporting the First Amendment.

Taking to X, Musk wrote: "Given the relentless attacks on free speech. I am going to fund a national signature campaign in support of the First Amendment."

The announcement garnered widespread applause on social media, with users on the platform expressing eagerness to sign up.

Voting advocate Scott Presler offered his support, commenting: "We are currently collecting signatures for campaigns across the country. I can have an army of signature collectors at a moment's notice. Let me know if I may be of assistance."

An X user hailed Musk's initiative as historic, commenting: "You're going to go down in the history books. Not just for Tesla and SpaceX. But for saving free speech."

"I'm glad Elon is taking a stand when others with his level of influence are not. If we do not support him and defend our First Amendment rights at this juncture. With it being assaulted on all sides... we could very well lose it. A terrifying prospect to say the least," another user added.

However, some skeptics questioned Musk's motives, suggesting that the move was driven by ulterior motives rather than a genuine commitment to free speech.

One critic wrote, "He isn't taking a stand for free speech. He's doing this so he can use this platform to lie with impunity."

"The world's richest man didn't buy Twitter to save free speech. He bought it because he knows how powerful it is. Because he can use it to convince you of anything he wants you to believe. And the first thing he wants you to believe is that he saved free speechand you bought it," another added.

Musk's staunch advocacy for free speech has been evident, notably motivating his acquisition of Twitter. Since purchasing the platform, the billionaire has actively promoted an environment fostering diverse viewpoints and has confronted governmental and authoritative efforts to stifle expression. He has also pledged financial support for individuals facing professional repercussions due to their online engagement.

For instance, Musk was loud in his vocal opposition to regulatory overreach, such as the Canadian proposal for online streaming services. Taking to X, he wrote: "Trudeau is trying to crush free speech in Canada. Shameful."

More recently, Musk confronted the Brazilian government's decision to restrict access to specific X accounts within the nation. Despite facing a subsequent court order mandating the suspension of these accounts, Musk adamantly resisted such attempts at censorship through various means.

Musk's advocacy for free speech has led to X becoming a platform where Nazi ideology and propaganda thrive, with numerous paid subscribers using the platform to share content glorifying Adolf Hitler and his regime.

Investigations by NBC News also revealed that over 150 "Premium" subscriber accounts, along with thousands of unpaid accounts, have been disseminating pro-Nazi material on X, often violating the platform's rules. These accounts consistently post anti-Semitic or pro-Nazi content, including praise for Nazi soldiers, dissemination of Nazi symbols, and Holocaust denial.

The spread of pro-Nazi content extends beyond the platform's margins, with some posts garnering millions of views and widespread resharing.

According to the executive director of Life After Hate, Patrick Riccards, "A welcoming social media environment can make Nazi sympathizers feel validated in their views and recruit others to their cause. "For those who are already driven by hate, it is a big warm hug," he added.

Earlier this week, Musk announced that X will introduce a payment system where users must pay to post and engage with others. He explained that the move aims to combat the proliferation of fake and bot accounts by requiring a "small fee" for access to core features.

"Unfortunately, a small fee for new user write access is the only way to curb the relentless onslaught of bots," he wrote, per The Independent. "Current AI (and troll farms) can pass 'Are you a bot?' with ease." "The onslaught of fake accounts also uses up the available namespace, so many good handles are taken as a result," he added.

This follows a pilot program in New Zealand and the Philippines last year, which mandated a one-dollar-a-year subscription for new users to access essential functions. Musk's remarks suggest a broader implementation of this model.

Responding to queries, Musk hinted that the fee might only apply during the initial three months of a user's membership.

Originally posted here:
Elon Musk's Plan To Fund National Signature Campaign In Support Of First Amendment Met With Praise - Yahoo! Voices

The justices of the Supreme Court never focused on the First Amendments words when hearing arguments in Murthy v. Missouri last week.

The case challenges the federal governments orchestration of social media censorship, so one might have expected the justices to pay some attention to the First Amendment itself. Instead, the court relied on its own weak doctrines that invited the censorship in the first place.

The First Amendment makes a crucial distinction between abridging and prohibiting. But theres a danger the court, in this case, will ignore this and instead reinforce its erroneous coercion standard. If thats what the court does, it will give the executive branch the green light to persist in the most far-reaching censorship in the nations history.

The coercion doctrine, established in Blum v. Yaretksy, suggests that when the government uses private entities to censor Americans, a complaining party must show that the government coercively converted the private censorship into government censorship. This doctrine has invited the government to think it may use social media platforms to suppress the public, as long as it isnt too obviously coercive against the platforms. Government coercion thus gets elevated as the archetypical measure of censorship (its not), and less than coercive privatized censorship gets legitimized (it shouldnt).

Nonetheless, the court seemed to take the Blum framework for granted. The justices spent much time asking when the government could persuade newspapers to drop their news stories, even though this case had nothing to do with that. The government never asked the suppressed scientists and doctors whether they would be willing to forbear from publishing. Instead, the government used the social media platforms to shut down the speech of the individuals, who were never consulted. Still, most of the justices seemed to assume, in line with Blum, that as long as the government didnt coerce the platforms, no censorship occurred.

The First Amendment, however, rejects the coercion test. It bars the government from abridging, or reducing, the freedom of speech. That standard stands in sharp contrast to the amendments bar against prohibiting the free exercise of religion. The amendment thus clearly rejects a coercing or prohibiting measure of government censorship in favor of a more sensitive inquiry as to whether the government abridged that is, diminished the freedom of speech.

This point about abridging was part of the plaintiffs argument. The brief of Missouri, Louisiana, and the individual plaintiffs urged the court to revisit Blum and other such cases, on the ground that their artificially narrow conception of state action . weakens the freedom of speech. In contrast, the First Amendment capaciously protects the freedom of speech from any abridging (i.e., diminishing) of that freedom.

This, the Constitutions measure of freedom of speech, clearly bars the government from working with social media to set parameters on public debate. Yet under the Blum coercion standard, thats exactly what the government has been doing orchestrating social media to bar evidence and opinion that dissents from the official narrative and questions official policy.

Even cursory attention to the First Amendment would have offered a profound corrective to this coercion doctrine the doctrine that invites the censorship. The justices, however, appeared to leave the First Amendment aside.

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This failure even to quote the First Amendment is especially troublesome because of the judicial barriers that tend to leave the public without an effective remedy for censorship. The courts qualified immunity doctrine leaves people with little chance of getting damages for past censorship, and its standards for obtaining an injunction leave them with difficulty securing a remedy against future censorship, as the government can simply declare that theres little reason to think the censorship against the plaintiffs will recur.

So, the government can censor one American after another, seriatim, without consequence.

Philip Hamburger teaches at Columbia Law School and is CEO of the New Civil Liberties Alliance, which represents four individual plaintiffs in Murthy v. Missouri. He is the author of Courting Censorship.

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Supreme Court must rely on the First Amendment, not its own precedent, when deciding government censorship case - Washington Examiner

CAPE CORAL, Fla. A man removed from a Cape Coral City Council meeting has filed a lawsuit against the City of Cape Coral and its city council members.

Last October, the Cape Coral Police Department removed Scott Kempe from a Committee of the Whole meeting following a heated argument over the new design of Jaycee Park.

Kempe refused to sit down during the discussion of the design - and kept his back to the council.

After being asked by Cape Coral Mayor John Gunter to turn around, the mayor asked police to take him out of the room.

RELATED: CAPE CORAL | Man removed from public meeting during heated debate over new Jaycee Park design

Five months later, Kempe is now the plaintiff in a lawsuit against the city.

You can read a portion of the documents below:

Scott Kempe vs. City of Cape Coral

RELATED: CAPE CORAL | Man escorted out of city workshop defends his actions

The lawsuit going on to say that though Lee County prosecutors properly dismissed Kempe's arrest, the council continued to assert that they could ban him from attending future council meetings and amended council rules to ban others from meetings in future meeting - a violation of the First Amendment, Kempe's team argues.

As part of our previous reporting, the city provided a statement to FOX 4 as a spokesperson said it was within their legal right to remove Scott Kempe from the workshop.

Below is the full statement:

Therefore, an individuals refusal to comply with the City Council Rules will give rise to that person being escorted from the City Council Meeting Chambers by the Cape Coral Police Department.

Kempe has filed preliminary injunction to stop the City of Cape Coral and Cape Coral City Council from continuing to enforce rules banning members of the public from future open meetings based upon past conduct.

He is also seeking the following:

a. Compensatory damages; b. Appropriate injunctive relief c. Declaratory judgment d. Invalidation of official acts taken in violation of Florida law e. Interest f. Nominal damages g. Attorney fees h. Costs and expenses; and i. All other relief this Court deems proper.

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FIRST AMENDMENT VIOLATION?: Man removed from Cape council meeting files lawsuit - FOX 4 News Fort Myers WFTX

Prosecutor Donald Wakeford countered that Trump's statements are not protected by the First Amendment because they were integral to criminal activity.

It's not just that they were false. It's not that the defendant has been hauled into a courtroom because the prosecution doesn't like what he said, Wakeford said, adding that Trump is free to express his opinion and make legitimate protests. What he is not allowed to do is to employ his speech and his expression and his statements as part of a criminal conspiracy to violate Georgia's RICO statute, to impersonate public officers, to file false documents, to make false statements to the government.

Wakeford pointed out that similar arguments were raised and rejected in the federal election interference case against Trump brought by Department of Justice special counsel Jack Smith. U.S. District Judge Tanya Chutkan wrote in a December ruling that "it is well established that the First Amendment does not protect speech that is used as an instrument of a crime."

Defendant is not being prosecuted simply for making false statements ... but rather for knowingly making false statements in furtherance of a criminal conspiracy and obstructing the electoral process, Chutkan wrote.

Willis used Georgia's Racketeer Influenced and Corrupt Organizations law, an expansive anti-racketeering statute, to charge Trump and 18 others with allegedly participating in a wide-ranging conspiracy to overturn the state's 2020 election results.

Most of the charges against Shafer, a former state Republican Party chairman, have to do with his involvement in the casting of Electoral College votes for Trump by a group of Georgia Republicans even though the state's election had been certified in favor of Democrat Joe Biden. The charges against Shafer include impersonating a public officer, forgery, false statements and writings, and attempting to file false documents.

His lawyer, Craig Gillen, argued that the activity Shafer engaged in was lawful at the time and that Schafer was acting in accordance with requirements of the Electoral Count Act. Because a legal challenge to the presidential election results was pending on Dec. 14, 2020, when it came time for electors to meet to cast Georgia's electoral votes, Gillen said it was up to Congress to determine whether a Democratic or Republican slate of electors should be counted for the state. He said that means Shafer and the other Republicans who met to cast electoral votes were acting properly.

Gillen said the accusation that Shafer and others were impersonating a public officer, namely a presidential elector, does not hold water because electors are not considered public officers. Prosecutor Will Wooten argued that a presidential elector is clearly an office created by law and that Shafer and others were charged because they falsely presented themselves as the state's official presidential electors.

Gillen also asked that three phrases be struck from the indictment: duly elected and qualified presidential electors, false Electoral College votes and lawful electoral votes. He said those phrases are used to assert that the Democratic slate of electors was valid and the Republican slate was not. He said those are prejudicial legal conclusions about issues that should be decided by the judge or by the jury at trial.

Wooten opposed the move, saying every allegation in an indictment is a legal conclusion.

Trump and the others were indicted last year, accused of participating in a scheme to try to illegally overturn the 2020 presidential election in Georgia, which the Republican incumbent narrowly lost to Biden.

All the defendants were charged with violating the anti-racketeering law, along with other alleged crimes. Four people charged in the case have pleaded guilty after reaching deals with prosecutors. Trump and the others have pleaded not guilty. No trial date has been set. Willis has asked that the trial begin in August.

The allegations that Willis engaged in an improper relationship were explored over several days in an evidentiary hearing last month that delved into intimate details of Willis' and Wade's personal lives. The judge rejected defense efforts to remove Willis and her office as long as Wade stepped aside. But McAfee did give the defendants permission to seek a review of his decision from the state Court of Appeals.

Also this month, the judge dismissed six of the 41 counts in the indictment, including three against Trump, finding that prosecutors failed to provide enough detail about the alleged crimes.

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Trump's team cites First Amendment in contesting charges in Georgia election interference case - The Atlanta Journal Constitution

The lead attorney for former President Donald Trump sought to dismiss the Georgia election interference case Thursday on the grounds that it violates Trumps First Amendment rights.

I dont think theres any question that statements, comment, speech, expressive conduct that deals with campaigning or elections has always been found to be at the zenith of protected speech, Trumps head attorney, Steve Sadow, said in the Fulton County courtroom on Thursday, per ABC News.

The only reason it becomes unprotected in the States opinion is because they call it false, he added.

Fulton County Prosecutor Donald Wakeford argued that Trumps comments related to the charges should not be protected under the First Amendment, saying that the former presidents comments were aligned with criminal activity

Hes never been prosecuted for lying, Wakeford said, according to CNN. Hes been prosecuted for lying to the government.

Fulton County Superior Court Judge Scott McAfee heard both arguments in the case initially brought by Fulton County District Attorney Fani Willis. Trump and 18 co-defendants have been charged related to their alleged attempts in Georgia to overturn the results of the 2020 presidential election. Four of them have pleaded guilty.

Its not just that they were false. Its not that the defendant has been hauled into a courtroom because the prosecution doesnt like what he said, Wakeford said, per The Associated Press. What he is not allowed to do is to employ his speech and his expression and his statements as part of a criminal conspiracy to violate Georgias RICO statute, to impersonate public officers, to file false documents, to make false statements to the government.

The prosecution pointed out that U.S. District Court judge Tanya Chutkan, in Washington, D.C., had previously dismissed the claim that the First Amendment protects Trump from criminal prosecution for his attempts to reverse the outcome of the 2020 election in a separate indictment.

McAfee did not make a ruling in court on Thursday and has yet to set a trial date. The Georgia election interference case is one of four criminal indictments that Trump is facing as he campaigns against President Joe Biden in the 2024 presidential election.

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Trump attorney says Georgia election case hinges on First Amendment Deseret News - Deseret News

Prosecutors who have charged former President Donald Trump with election interference and racketeering relating to his efforts to overturn the results of the 2020 election in Georgia tell Judge Scott McAfee that the First Amendment does not protect him from prosecution in the case. Trumps lawyers tell the judge that contesting election results is protected by the Constitution, but Fulton County prosecutor Donald Wakeford counters that each of the 10 felony counts Trump faces was employed as part of criminal activity with criminal intentions. Here are the latest legal developments involving the presumptive Republican presidential nominee for 2024.

Trumps lawyers, prosecutors spar over First Amendment protections

Key players: Judge Scott McAfee, Fulton County prosecutor Donald Wakeford, Trump lawyer Steve Sadow, former Georgia Republican Party chairman David Shafer, Shafers lawyer Craig Gillen,pro-Trump lawyersKenneth Chesebroand Sidney Powell, Judge Tanya Chutkan

McAfee heard arguments Thursday on whether the charges in Georgia against Trump should be dropped because they violate his First Amendment rights, ABC News reported.

Trump is charged with conspiring to overturn his 2020 election loss to Joe Biden in Georgia, a contest that he continues to claim was rigged despite a lack of evidence to support that assertion.

What do we have here? Sadow added. We have election speech, which is 'protected' from government restriction."

Wakeford countered: Its not that the defendant has been hauled into a courtroom because the prosecution doesnt like what he said. He is free to make statements and to file lawsuits and to make other legitimate protests. What he is not allowed to do is employ his speech and his expression, and his statements as part of a criminal conspiracy to violate Georgias RICO statute.

McAfee did not issue a ruling on the question, but has previously denied similar motions to dismiss from Chesebro and Powell, both of whom have since pleaded guilty in the case.

In the federal election interference case, Chutkan has already ruled that the First Amendment doesnt protect Trump from being prosecuted for seeking to overturn the 2020 contest.

Gillen argued that the charges against Shafer should be dropped because he was simply attempting to comply with the advice of legal counsel when he posed as an official state elector to challenge Bidens victory.

Gillen also sought to have the term fake elector stricken from the indictment against his client.

Why it matters: McAfee didnt offer many indications Thursday on how he might rule on the motions to dismiss the charges against Trump and Shafer. Given his prior rulings and Chutkans most legal experts see them as a long shot.

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Judge Scott McAfee will hear arguments Thursday on motions brought by former President Donald Trump and former Georgia Republican Party chairman David Shafer seeking to have the charges on the election interference case dismissed. This is the first hearing since McAfee ruled that Fulton County District Attorney Fani Willis could continue to prosecute the case against Trump so long as lead prosecutor Nathan Wade stepped aside.

Here are the latest legal developments involving the presumptive Republican presidential nominee for 2024.

Key players: Judge Scott McAfee, former Georgia Republican Party chairman and Trump co-defendant David Shafer, Fulton County District Attorney Fani Willis, former lead prosecutor Nathan Wade

On Thursday, McAfee will hear arguments on motions filed by Trump and Shafer seeking dismissal of more charges. The hearing is the first since McAfee ruled that Willis could remain on the case as long as Wade stepped aside.

Trumps motion asks the court to dismiss the charges against him on the grounds that they violate his First Amendment rights. Similar motions by other co-defendants have been unsuccessful.

Shafer is asking McAfee to dismiss all of the eight felony charges against him stemming from his efforts to overturn the results of the 2020 presidential election, saying he was simply following the advice of his legal counsel when he sought to line up an alternate slate of state electors.

Earlier this month, McAfee, citing a lack of detail, tossed six of the criminal counts. Trump now faces 10 felony counts instead of 13, but McAfee said Willis could add information and go back to a grand jury to try to have the charges restored.

Following McAfees ruling on the defendants' motion to have Willis removed from the case, Wade stepped aside.

Thursdays hearing will be livestreamed beginning at 10 a.m. ET.

Why it matters: While McAfee has allowed Trump and his co-defendants to appeal his ruling on Willis, he has also made clear that he will push forward with the case in the meantime. Willis plans to ask McAfee to schedule the start of the trial this summer, CNN reported. If McAfee agrees, that could mean that a jury could still come to a verdict before the 2024 presidential election.

Judge Juan Merchan slaps a gag order on former President Donald Trump that prevents him from making public statements about witnesses, prosecutors, court staff and jurors in his hush-money criminal trial, which is set to begin on April 15. The gag order comes just hours after Trump attacked Merchan and his daughter in a social media post. Here are the latest legal developments involving the presumptive Republican presidential nominee for 2024.

Judge hits Trump with gag order

Key players: Judge Juan Merchan,Manhattan District Attorney Alvin Bragg

On Tuesday, Merchan sided with Bragg, issuing a gag order on Trump that is designed to prevent him from making or directing others to make public statements about witnesses in the hush money trial, court staff, prosecutors, jurors or their family members, the Associated Press reported.

Merchan limited the gag order to statements made with the intent to materially interfere with, or to cause others to materially interfere with, counsel's or staff's work in this criminal case, or with the knowledge that such interference is likely to result.

Hours before Merchan issued the gag order, Trump attacked him and his daughter in a social media post.

Judge Juan Merchan, a very distinguished looking man, is nevertheless a true and certified Trump Hater who suffers from a very serious case of Trump Derangement Syndrome, Trump wrote. In other words, he hates me!

Trump also wrote that His daughter is a senior executive at a Super Liberal Democrat firm that works for Adam Shifty Schiff, the Democrat National Committee, (Dem)Senate Majority PAC, and even Crooked Joe Biden.

Merchans gag order, which comes one day after the judge set an April 15 start date for the hush money trial, does not prevent Trump from commenting on him or Bragg in general.

Why it matters: Merchan will oversee the first-ever criminal trial of a former president of the United States. While Trumps lawyers have successfully delayed the start of all of the four criminal trials in which he is charged with felony counts, the hush money case is the only one certain to be heard by a jury prior to the 2024 election.

A New York appeals court on Monday lowers the bond amount that former President Donald Trump must pay as he appeals the $464 million judgment in his civil fraud trial, saying he can put up just $175 million within 10 days. The 11th-hour deal temporarily prevents New York Attorney General Letitia James from moving to seize Trumps assets. In Trumps hush money trial, Judge Juan Merchan says jury selection can begin on April 15. Here are the latest legal developments involving the presumptive Republican presidential nominee for 2024.

Appeals court rules in favor of Trump hours before bond deadline

Key players: Trump, New York Attorney General Letitia James, Judge Arthur Engoron

On Monday, a New York appeals court lowered the bond amount Trump and his co-defendants must pay in order to appeal Engorons $464 million judgment in his civil fraud trail to just $175 million, Semafor reported.

The appeals court also gave Trump 10 days to pay that sum.

Speaking to reporters outside a hearing in his criminal hush money case in Manhattan, Trump said he would do so very quickly.

I greatly respect the decision of the appellate division, he said. And I'll post either $175 million in cash or bonds or security or whatever is necessary very quickly within the 10 days.

James had begun clearing the way to seize some of Trumps assets in order to secure the full bond amount.

Why it matters: Trumps lawyers had argued that the original bond amount, which included interest, was excessive. They also told the court that 30 lenders had refused to give them a loan to cover the $464 million bond. This ruling buys Trump more time, and could keep James from freezing his bank accounts and seizing his assets.

Judge sets April 15 start date for Trumps hush money trial

Key players: Judge Juan Merchan, Manhattan District Attorney Alvin Bragg, adult film actress Stormy Daniels, former Trump lawyer Michael Cohen

With Trump looking on in court on Monday, Merchan ruled that the hush money trial could begin jury selection on April 15, the Daily Beast reported.

The trial had previously been scheduled to begin on March 25, but Merchan delayed it until April 15 after federal prosecutors submitted new evidence stemming from their investigation of Trumps ties to Russia during the 2016 election.

Merchan ruled Monday that the newly disclosed documents did not have any bearing on the hush money case, which will decide whether Trump broke New York campaign finance and tax laws when he paid Daniels $130,000 in 2016 to hide an alleged extramarital affair.

Trumps lawyers had sought to have the case dismissed or to have it postponed so that they could have more time to review the newly disclosed documents.

The defendant has been given a reasonable amount of time to prepare, Merchan said.

Why it matters: Trumps lawyers have skillfully delayed all of the criminal trials facing the former president. But Mondays ruling could mean that that streak is coming to an end.

With reporting from Dylan Stabelford

Original post:
Trump legal news brief: Prosecutors tell Judge McAfee that First Amendment doesn't apply to Trump's 'criminal intentions' - Yahoo! Voices

A judge held a hearing Thursday to examine former President Donald Trumps argument that Fulton County District Attorney Fani Williss case against him in Georgia should be dismissed because Trumps actions cited in her indictment were protected by the First Amendment.

Judge Scott McAfee heard arguments from both Trumps attorney and prosecutors about the matter, but the judge gave no indication as to where he stood on it or when he would issue a decision.

Trumps attorney Steve Sadow urged McAfee to consider that Williss indictment, in which she alleged Trump violated Georgias racketeering law by illegally conspiring to overturn the 2020 election, was ripe for a First Amendment challenge.

McAfee had already denied similar motions brought by co-defendants Kenneth Chesebro and Sidney Powell, determining that dismissing the indictment on First Amendment grounds at this stage was premature.

On Thursday, Sadow argued that Williss indictment was built entirely on actions shielded by protections for freedom of speech and expression under the Constitution.

McAfee said, however, that some crimes can be achieved solely through speech, though, [such as] terroristic threats, solicitation.

Why is that not whats happening here as alleged? McAfee asked.

I dont think theres any question that statements, comments, speech, expressive conduct that deals with campaigning or elections has always been found to be at the zenith of protected speech, Sadow replied.

Williss indictment was sweeping and included 161 actions that she alleged amounted to a racketeering violation by Trump and 18 co-defendants. She alleged that Trump, in particular, falsely declared he won the 2020 election, helped arrange for an alternate set of electors in Georgia, and helped create and deliver a fraudulent certificate of votes to state officials.

One must determine immediately whether that constitutes core political speech, and I suggest that it does, Sadow said in reference to Trumps speech and actions cited in the indictment.

Neither Trump nor Willis were present at the hearing.

Donald Wakeford, a prosecutor appearing on behalf of Willis, noted how Judge Tanya Chutkan in Washington, D.C., had already ruled against the same First Amendment argument in Trumps federal election interference case. Chutkan declined to dismiss that case on First Amendment grounds after Trump argued his actions in the indictment there reflected genuine concerns about the election that he had a right to vocalize. Chutkan said the argument was better suited for a jury to consider at trial.

Wakeford said he was hardly going to improve upon the findings of the federal judge.

But he noted that the First Amendment argument should go beyond determining whether Trump was well-intentioned or whether he knowingly made false claims and committed fraudulent actions.

Its not just that he lied over and over and over again, Wakeford said. Its that each of those was employed as part of criminal activity with criminal intentions for which the First Amendment did not provide cover.

CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER

Trump is facing 10 charges in the case related to the 2020 election. McAfee has not scheduled a trial yet, and one may not take place for several months. The pretrial process was derailed by roughly two months beginning in January, when Trump and others called for McAfee to disqualify Willis from the case over an undisclosed relationship she had with one of the prosecutors working on it.

McAfee determined that Willis displayed a tremendous lapse in judgment but said she could continue overseeing the case so long as she terminated the prosecutor. Trump and other co-defendants have appealed his decision, and the Georgia Court of Appeals is now weighing whether to take up the argument.

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First Amendment protects Trump from Fani Williss election interference charges, attorney argues - Washington Examiner

Lawyers for Donald Trump filed a brief in December arguing that the Georgia case "seeks to criminalize content-based, core political speech and expressive conduct."

ATLANTA Lawyers for former President Donald Trump were in court in Atlanta on Thursday morning, arguing his charges in the Georgia 2020 election RICO case should be dismissed on First Amendment grounds.

A motions hearing saw Steve Sadow, Trump's attorney, spar with prosecutors over a constitutional question: how far does the First Amendment's protection of speech go?

"Political speech is the most protected; it's usually referred to as the core of the First Amendment," said Emory University Law professor John Acevedo.

But the legal expert noted that protection is not limitless. The core issue of Thursday's hearing was wherethose limits should be drawn.

Sadow claimed that all of the former president's alleged criminal acts were actually political speech about the 2020 election that is protected by the First Amendment.

"All of the allegations involved expressive conduct or speech," Sadow said.

The defense attorney argued that protection should compel Fulton County Superior Court Judge Scott McAfee to dismiss the charges against Mr. Trump.

"It's unconstitutional to force an accused, be it the president of the United States, former president, or anyone else, to stand trial on protected speech," Sadow said.

Prosecutors countered that the First Amendment's protections are not limitless.

"Speech integral to criminal conduct is not protected," said Donald Wakeford, a chief senior district attorney in the Fulton County D.A.'s Office.

The prosecutor argued that Trump's speech falls into that unprotected category.

"(It's) not just that he lied over and over and over again... it's that each of those was employed as part of criminal activity with criminal intentions," Wakeford said.

John Floyd, a special prosecutor and noted RICO expert, also added a rebuttal for the state to Sadow's arguments that speech is criminalized within the indictment's listed "overt acts."

"The purpose of an overt act is to show the conspiracy is in operation. It is not a separate crime, it doesn't have to satisfy the elements, doesn't have to be pled with that level of detail... and so to say we can't mention this particular act or this particular conduct because it's not a crime or it's protected by the First Amendment, the answer to that is actually so what?" Floyd said. "It could be legal conduct, it could be First Amendment protected conduct that also shows there's a conspiracy in operation, and that's -- as long as it serves that purpose, it's fine."

The court also heard arguments from Craig Gillen, an attorney representing Trump co-defendant David Shafer (the former chairman of the Georgia Republican Party), on two motions seeking to dismiss the charges against him and remove language related to "false" electors from the indictment.

Judge Scott McAfee has not yet ruled on any of the motions discussed in court Thursday.

You can re-watch 11Alive's stream of the proceedings below, as well as the specific portion regarding the First Amendment argument in the video player above this story. 11Alive's updates from during the proceedings are also below.

11:38 a.m. | Court is adjourned. Judge McAfee did not indicate when he might have an order on anything that was before the court today.

11:20 a.m. |Attorneys for the State, addressing the Shafer arguments, asserting that Georgia law does explicitly establish an "office of presidential elector."

11:03 a.m. |And to go back to the First Amendment arguments -- again, no decision likely right here today from Judge McAfee. Unclear when he might issue a written order (though it's possible he'll address a timeline at the end of proceedings).

11:01 a.m. |Craig Gillen is arguing for Shafer, who was charged as impersonating an officer for his role in the submission of the "alternate" slate of electors for Trump to the Electoral College. Gillen's argument is basically that the elector role is really not that of a public officer.

10:59 a.m. | Worth going back to Sadow for a second, who concluded his argument by again referring to the indictment and asserting that it does not charge Trump on any act other than acts of speech: "What I'm suggesting is if all of the overt acts are nothing more than core political speech or expressive conduct and nothing else is alleged which is not protected by the First Amendment, then you have an insufficient basis for which he has been indicted."

10:55 a.m. |Attorney Craig Gillen is arguing for Shafer's motions.

10:51 a.m. |Appears the First Amendment matter has been argued through and they're moving on to David Shafer's motions.

10:49 a.m. |Sadow now rebutting what Floyd said.

10:48 a.m. | John Floyd, a noted RICO expert, adds for the state an argument that Sadow's arguments that speech is criminalized within the indictment as referenced in overt acts is not true.

"The purpose of an overt act is to show the conspiracy is in operation. It is not a separate crime, it doesn't have to satisfy the elements, doesn't have to be pled with that level of detail... and so to say we can't mention this particular act or this particular conduct because it's not a crime or it's protected by the First Amendment, the answer to that is actually so what?" Floyd said. "It could be legal conduct, it could be First Amendment protected conduct that also shows there's a conspiracy in operation and that's -- as long as it serves that purpose, it's fine."

10:43 a.m. | More Wakeford: It's "not just that he lied over and over and over again... it's that each of those was employed as part of criminal activity with criminal intentions."

Says Sadow wants to frame the indictment as "it's all speech... he (Trump) was just a guy asking questions... and not part of an overarching criminal conspiracy trying to overturn election results for an election he did not win -- by violating the RICO statute, by making false statements to the government, by filing false documents, by impersonating officers and doing a whole host of other activities harmful, in addition to the falsity of the statements employed to make them happen."

10:40 a.m. |Wakeford further argues the filing false documents charge is "not just hat you've made a false statement," but that you've sworn to false statements to a court "which does harm to the judicial system."

"As each and every charge in the indictment demonstrates, these statements are part of criminal conduct that is larger than just the false statement on its own."

10:38 a.m. |Wakeford argues Trump is "not being prosecuted for lying, he's being prosecuted for lying to the government -- an act which is illegal because it does harm to the government."

10:36 a.m. |Wakeford for the State now speaking again, refers to the federal election subversion case being overseen by Judge Tanya Chutkan.

"Let me address first the elephant in this courtroom, Judge Chutkan in D.C. has evaluated all these arguments under Supreme Court precedent already, I'd refer you to that court's analysis, I'm hardly going to improve upon the findings of a federal judge."

10:34 a.m. |Another tidy Sadow summary: "Take out the political speech, no criminal charges. Political speech disagreed with, basis for all charges. I think that is the best way for me to sum up where our position is."

10:33 a.m. |More Sadow: "When you're dealing with that speech, that political speech, you're best to deal with it pushing forth a counterview of truth -- not prosecuting the speechmaker or the person that is articulating his political views. Here we've done just the opposite, we've decided t hat because those views are unpopular, and in State's opinion false, we must prosecute them to stop them from happening again, which is the essence why it's unconstitutional as applied because that's not what the law says."

10:30 a.m. |A little tidier summary from Sadow: "All of the allegations involve expressive conduct or speech."

10:28 a.m. | Sadow goes into the core of his argument, which is that the charges against Trump in the RICO indictment solely target the content of his political speech during the time after the 2020 election.

He argues the State is interpreting the crime as "we have a goal -- steal the election in an unlawful fashion."

"I say change that for a second to 'legitimate concern about the validity of the election.' If that was the way you focused on it, would what President Trump said on those counts be protected speech? And the answer is it has to be."

He adds in his argument that "the only reason it becomes unprotected" is the State says it's false, which he argues is disallowed under precedent.

"It cannot be content based, it has to be contextual, and this is a core political value being addressed -- elections and campaigning."

10:17 a.m. |Sadow is making an argument about the standards for how a First Amendment challenge may be brought.

10:11 a.m. |Wakeford argues even if it is the time to address the First Amendment now, the challenge would need to be dismissed because the indictment criminalizes not Trump's speech or expression as expressed but asserts his speech and expression were conducted in furtherance of crimes.

10:08 a.m. |Wakeford is arguing its premature to address the First Amendment challenge at this point.

10:07 a.m. |Donald Wakeford, arguing the First Amendment issue for the State, is now speaking with Judge McAfee, still on the matter of whether this is the right time to address the First Amendment challenge.

10:05 a.m. | Judge McAfee and Sadow are beginning by addressing the standards and precedents for whether the First Amendment challenge is appropriate at this point in the legal proceedings.

10:04 a.m. |Attorney Steve Sadow is beginning arguments on behalf of President Trump.

Trump's lawyers filed a brief in December arguing that the Georgia case "seeks to criminalize content-based, core political speech and expressive conduct." You can see that brief below:

The document, a post-hearing briefing, supports arguments made at an original hearing on Dec. 1 at which Trump's attorneys argued to have the case dismissed. You can re-watch that hearing in full here.

The filing lays out five central elements of the case and argues Trump's conduct with regard to each of them is protected political speech.

Those elements include the "alternate" electors scheme, Trump's calls for a special session of the Georgia General Assembly, a verification Trump made as part of a lawsuit challenging the election, the Jan. 2, 2021 call to Sec. of State Brad Raffensperger and a Sept. 17, 2021 letter to Raffensperger.

"Every single alleged overt act listed and count charged against President Trump seeks to criminalize content-based, core political speech and expressive conduct," Trump attorney Steve Sadow wrote in the brief.

Sadow argued the court should dismiss the indictment before the trial begins.

"The speech Fulton County prosecutors seek to criminalize is precisely the kind of core political speech the Founders envisioned when carefully crafting those freedoms to ensure that, for the rest of time, U.S. citizens would not fall prey to mass repression and the manipulation or suppression of information as a means of control," Sadow wrote.

It's not clear if Judge Scott McAfee will issue any sort of ruling on the matter on Thursday. So far in the case he has typically taken further time to weigh arguments before issuing written orders, rather than making determinations from the bench.

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Donald Trump Georgia court motions hearing today live stream - 11Alive.com WXIA

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Originally posted here:
Trump's team cites First Amendment in contesting charges in Georgia election interference case - Bowling Green Daily News

In someFirst Amendmentcases, theUS Supreme Courtchooses an extant rule from its toolbox of constitutional tests and then applies it, resolving a specific factual situation. In others, it creates a new ruleone frequently fashioned to balance interestsfor lower courts to apply.

The Courts March 15 decision in the social media case ofLindke v. Freedfalls squarely into the latter category. The Court established a new test for determining when public officials usage of their social media accounts moves beyond private citizens speaking in personal capacities into the realm of officialstate action, thereby triggering First Amendment concerns when they block dissenting constituents or delete their comments. The new rule is crucial because, as Ipreviously explained,

Without state action, First Amendment claims fail because the First Amendment prohibits onlygovernmentalabridgment of speech, not privateabridgment. (Emphasis in original.) Thus, government officials who use personal social media accounts as purely private citizens (not as state actors) can block people without raising First Amendment problems.

The issue first garnered public attention five years ago when theUS Court of Appeals for the 2nd Circuit determined inKnight First Amendment Institute v. Trumpthat the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees. The public official there, of course, was then-President Donald Trump, who had blocked multiple individuals from following his @realDonaldTrump Twitter account after, as the appellate courtnoted, they had posted replies in which they criticized the President or his policies. Although the Second Circuit concluded that Trumps use of his personal account triggered state action (and thus First Amendment issues includingviewpoint discriminationwhen he blocked critics), lower courts disagreed on the proper rule for establishing state action in such social-media blocking contexts. Compounding the problem, many officials use their personal pages in a hybrid capacity, combining family photos and posts about their children with messages relating to their job duties and soliciting constituents feedback.

So, what state-action rule did the Supreme Court establish for social media accounts? It created a two-part test, with the first part serving as a threshold requirement that must be cleared before a court will even consider the second prong. As articulated inLindke, the rule is that a public officials social-media activity constitutes state action . . . only if the official (1) possessed actual authority to speak on the States behalf, and (2) purported to exercise that authority when he spoke on social media. Actual authoritysomething within the portfolio or bailiwick of the officials responsibilitiesmay be vested by statute or by government officials persistent, well-settled practices of custom and usage. On the second prong, a posts content, plus the appearance and function of the social-media activity are relevant.

Under this rule, a public officials post about a government matter will sometimesbut not alwaysconstitute state action. The rule thus balances the First Amendment right of government officials to speak as private citizens on matters of public concern with the First Amendment speech and petition rights of their constituents to communicate with them in the modern public square.

The rules key strengths are unanimity and lucidity. It was created in aunanimous opinionauthored by Justice Amy Coney Barrett that is well-organized, straightforward, and replete with examples lower courts can consider in difficult cases. There were no dissents questioning the rules legitimacy and no concurrences clouding the prongs meanings. Furthermore, Barrett clearly explicated both prongs in ways anyonenot just juristscan understand.

This doesnt mean, however, that applying the rule will be easy. As Barrett wrote, the state-action doctrine demands a fact-intensive inquiry.

What can we now expect? First, public officials will likely add prominent personal-account labels and disclaimers to their pages to lessen the odds of successful First Amendment lawsuits. Barrett explained that a public official would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal if the official included a label designating it their personal page or a disclaimer that the views expressed are strictly my own. Second, lawsuit-wary public officials are now likely to prevent staff members from operating or posting on the officials personal accounts. Thats because Barrett wrote that an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business. In short, the Court provided a partial roadmap for public officials who want to demarcate their private-citizen expression from messages exercising their actual authority to speak on the governments behalf.

Fashioning constitutional rules isnt easy; Justice Barrett and the Court deserve kudos for their efforts inLindke.

Read more here:
Judicial Rulemaking and Lucidity: Justice Barrett's First Amendment Opinion in Lindke v. Freed - American Enterprise Institute