Category Archives: First Amendment

In January, Texas Attorney General Ken Paxton issuedcivil investigative demands(CIDs) to Twitter and other internet platforms requesting information about their content moderation practices pursuant to the offices authority under the state Deceptive Trade Practices-Consumer Protection Act. Twitter has since sued the attorney general to block enforcement of the CID issued to it. The Reporters Committee authored afriend-of-the-court briefin support of Twitter last week, joined by the Center for Democracy and Technology, the Electronic Frontier Foundation, the Media Law Resource Center, and PEN America.

Paxton has been vocal about Twitters suspension of former President Trumps account. A day after Twitter did so, Paxtontweetedhe would fight the company with all Ive got. In apress releaseabout the CIDs, Paxton explicitly linked the demands to the discriminatory and unprecedented step of removing and blocking President Donald Trump from online media platforms.

The CID issued to Twitter requests copies of terms of service, content moderation policies, all public statements made about content moderation and internal communications with or about the site Parler.

Twitter argues that the attorney generals actions are retaliatory and chill its content moderation practices, which are First Amendment-protected speech. The friend-of-the-court brief submitted by the Reporters Committee notes that government efforts to use regulatory schemes to investigate perceived bias in moderation practices would contravene the U.S. Supreme Courts rule inMiami Herald Publishing Company v. Tornillo that governmental regulation of editorial control and judgment cannot be exercised consistent with First Amendment guarantees of a free press[.]

Tornillodealt with print media, but the Supreme Court has extended such protections to the internet as a communications medium. Much of public discourse today happens online, and public discourse needs breathing space for free debate to survive. Government interventions even in the name of viewpoint neutrality threaten to shape this debate in ways that suppress disfavored speech, the brief argues. Consequently, investigations like the attorney generals may undermine the protections established by the Supreme Court inTornillo.

The brief notes that even non-retaliatory regulatory actions can burden the free flow of information to the public, such as taxes on paper and ink used to produce newspapers. When such regulatory schemes are used to make government actors arbiters of bias, that risk becomes even more pronounced. Paraphrasing the Supreme Courts words inTornillo, responsible moderation may be a desirable goal, but it cannot be achieved through government mandate.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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RCFP urges court to order Texas AG to stop investigating Twitter - Reporters Committee for Freedom of the Press

The case is today's Sixth Circuit decision in Meriwether v. Hartop, written by Judge Amul Thapar and joined by Judges David McKeague and Joan Larsen. There are a lot of moving parts here, so let me go through them one by one.

[A.] First, the facts: Shawnee State University had a policy requiring that students "refer to students by their 'preferred pronoun[s].'" Prof. Nicholas Meriwether disagreed, and "proposed a compromise: He would keep using pronouns to address most students in class but would refer to Doe [a transgender student in his class] using only Doe's last name." The University at first agreed, but then changed its mind.

The University also refused another proposed compromise that Meriwether offered: "allow him to use students' preferred pronouns but place a disclaimer in his syllabus 'noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity." The Dean "insisted that putting a disclaimer in the syllabus would itself violate the university's gender identity policy."

Meriwether sued, and the Sixth Circuit allowed his case to go forward; but because of the particular facts, the court didnotdecide whether a professor could insist on actually using a pronoun that didn't match the student's preferred pronoun. Rather, the court only considered whether a professor coulddecline to use the student's preferred pronoun.

[B.] Now, the background legal rule: Generally speaking the government may discipline (including firing) an employee based on the employee's speech if

This is quite different from the rules for criminal or civil liability for speech. Speech doesn't usually lose First Amendment protection, for instance, just because it's on a matter of purely private concern. Likewise, courts generally don't do case-by-case balancing of the value of speech against the harm that the speech causes. But when the government is acting as employer, it has a great deal of extra authority, especially over how its employees treat the government's clients and more generally over how they do their jobs.

[C.] But there have also been lots of cases that say that academic employment is different from other forms of employment, and this is what happened here.

[1.] The court followed earlier decisions by the Fourth and Ninth Circuit (and an implicit decision of the Fifth Circuit) in holding that theGarcettino-protection-for-speech-within-job-duties doctrine doesn't apply to public university teaching:

[Garcetti] expressly declined to address whether its analysis would apply "to a case involving speech related to scholarship or teaching." See also Adams v. Trs. of the Univ. of N.C.-Wilmington (4th Cir. 2011) ("The plain language of Garcetti thus explicitly left open the question of whether its principles apply in the academic genre where issues of 'scholarship or teaching' are in play."). [And the Court's earlier decisions] have "long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition."

If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet migr to address his students as "comrades." That cannot be. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe" such orthodoxy.

Remember, too, that the university's position on titles and pronouns goes both ways. By defendants' logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronounsno matter the professors' own views. And it could even impose such a restriction while denying professors the ability to explain to students why they were doing so. But that's simply not the case. Without sufficient justification, the state cannot wield its authority to categorically silence dissenting viewpoints.

[T]he academic-freedom exception to Garcetti covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not. The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings. And a professor's in-class speech to his students is anything but speech by an ordinary government employee.

Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection): (1) the students' interest in receiving informed opinion, (2) the professor's right to disseminate his own opinion, and (3) the public's interest in exposing our future leaders to different viewpoints. Because the First Amendment "must always be applied 'in light of the special characteristics of the environment' in the particular case," public universities do not have a license to act as classroom thought police. They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy. Otherwise, our public universities could transform the next generation of leaders into "closed-circuit recipients of only that which the State chooses to communicate." Thus, "what constitutes a matter of public concern and what raises academic freedom concerns is of essentially the same character."

Of course, some classroom speech falls outside the exception: A university might, for example, require teachers to call roll at the start of class, and that type of non-ideological ministerial task would not be protected by the First Amendment. Shawnee State says that the rule at issue is similarly ministerial.

But as we discuss below, titles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students. That's not a matter of classroom management; that's a matter of academic speech.

[2.] The court then held that the speech here was on a matter of "public concern":

When speech relates "to any matter of political, social, or other concern to the community," it addresses a matter of public concern. Thus, a teacher's in-class speech about "race, gender, and power conflicts" addresses matters of public concern. A basketball coach using racial epithets to motivate his players does not. "The linchpin of the inquiry is, thus, for both public concern and academic freedom, the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives."

Meriwether did just that in refusing to use gender-identity-based pronouns. And the "point of his speech" (or his refusal to speak in a particular manner) was to convey a message. Taken in context, his speech "concerns a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes. That is, his mode of address was the message. It reflected his conviction that one's sex cannot be changed, a topic which has been in the news on many occasions and "has become an issue of contentious political debate."

Never before have titles and pronouns been scrutinized as closely as they are today for their power to validateor invalidatesomeone's perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity. Meriwether's speech manifested his belief that "sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual's feelings or desires." The "focus," "point," "intent," and "communicative purpose" of the speech in question was a matter of public concern.

And even the university appears to think this pronoun debate is a hot issue. Otherwise, why would it forbid Meriwether from explaining his "personal and religious beliefs about gender identity" in his syllabus? No one contests that what Meriwether proposed to put in his syllabus involved a matter of public concern.

[3.] Finally, the court held that thePickeringbalance tipped in favor of protection for Meriwether's speech, again because of the academic freedom context:

Start with Meriwether's interests. We begin with "the robust tradition of academic freedom in our nation's post-secondary schools." That tradition alone offers a strong reason to protect Professor Meriwether's speech. After all, academic freedom is "a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." And the First Amendment interests are especially strong here because Meriwether's speech also relates to his core religious and philosophical beliefs. Finally, this case implicates an additional element: potentially compelled speech on a matter of public concern. And "[w]hen speech is compelled additional damage is done."

Those interests are powerful. Here, the university refused even to permit Meriwether to comply with its pronoun mandate while expressing his personal convictions in a syllabus disclaimer. That ban is anathema to the principles underlying the First Amendment, as the "proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" Indeed, the premise that gender identity is an idea "embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view."

And this is particularly true in the context of the college classroom, where students' interest in hearing even contrarian views is also at stake. "Teachers and students must always remain free to inquire, to study and to evaluate, [and] to gain new maturity and understanding."

On the other side of the ledger, Shawnee State argues that it has a compelling interest in stopping discrimination against transgender students. It relies on EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir. 2018) in support of this proposition. But Harris does not resolve this case. There, a panel of our court held that an employer violates Title VII when it takes an adverse employment action based on an employee's transgender status.

The panel did not holdand indeed, consistent with the First Amendment, could not have heldthat the government always has a compelling interest in regulating employees' speech on matters of public concern. Doing so would reduce Pickering to a shell. And it would allow universities to discipline professors, students, and staff any time their speech might cause offense. That is not the law. See Street v. New York (1969) ("[T]he public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers."). Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into "enclaves of totalitarianism."

Turning to the facts, the university's interest in punishing Meriwether's speech is comparatively weak. When the university demanded that Meriwether refer to Doe using female pronouns, Meriwether proposed a compromise: He would call on Doe using Doe's last name alone. That seemed like a win-win. Meriwether would not have to violate his religious beliefs, and Doe would not be referred to using pronouns Doe finds offensive. Thus, on the allegations in this complaint, it is hard to see how this would have "create[d] a hostile learning environment that ultimately thwarts the academic process."

It is telling that Dean Milliken at first approved this proposal. And when Meriwether employed this accommodation throughout the semester, Doe was an active participant in class and ultimately received a high grade.

As we stated in Hardy, "a school's interest in limiting a teacher's speech is not great when those public statements 'are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.'" The mere "fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." At this stage of the litigation, there is no suggestion that Meriwether's speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe any educational benefits. Without such a showing, the school's actions "mandate[] orthodoxy, not anti-discrimination," and ignore the fact that "[t]olerance is a two-way street." Thus, the Pickering balance strongly favors Meriwether.

Finally, Shawnee State and the intervenors argue that Title IX compels a contrary result. We disagree. Title IX prohibits "discrimination under any education program or activity" based on sex. The requirement "that the discrimination occur 'under any education program or activity' suggests that the behavior [must] be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity."

But Meriwether's decision not to refer to Doe using feminine pronouns did not have any such effect. As we have already explained, there is no indication at this stage of the litigation that Meriwether's speech inhibited Doe's education or ability to succeed in the classroom. Bauer even admitted that Meriwether's conduct "was not so severe and pervasive that it created a hostile educational environment." Thus, Shawnee State's purported interest in complying with Title IX is not implicated by Meriwether's decision to refer to Doe by name rather than Doe's preferred pronouns.

[D.] The panel also allowed Meriwether's Free Exercise Clause to go forward, based on the allegations that "officials at Shawnee State exhibited hostility to his religious beliefs" and that "irregularities in the university's adjudication and investigation processes permit a plausible inference of non-neutrality." That part of the opinion also discussed an interesting factual twist:

[T]he university argues that Meriwether simply could have complied with the alternative it offered him: Don't use any pronouns or sex-based terms at all. This offer, the university says, would not violate Meriwether's religious beliefs. But such an offer has two problems. First, it would prohibit Meriwether from speaking in accordance with his belief that sex and gender are conclusively linked. And second, such a system would be impossible to comply with, especially in a class heavy on discussion and debate. No "Mr." or "Ms." No "yes sir" or "no ma'am." No "he said" or "she said." And when Meriwether slipped up, which he inevitably would (especially after using these titles for twenty-five years), he could face discipline. Our rights do not hinge on such a precarious balance.

The effect of this Hobson's Choice is that Meriwether must adhere to the university's orthodoxy (or face punishment). This is coercion, at the very least of the indirect sort. And we know the Free Exercise Clause protects against both direct and indirect coercion.

[E.] So there are several important conclusions and implications here, it seems to me:

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Pronouns in the University Classroom & the First Amendment - Reason

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Timothy Wu wonders if the First Amendment is 'obsolete,' and believes in 'returning the country to the kind of media environment that prevailed in the 1950s'

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When Columbia law professor Timothy Wu was appointed by Joe Biden to the National Economic Council a few weeks back, the press hailed it as great news for progressives. The author ofThe Curse of Bigness: Antitrust in the New Gilded Ageis known as a staunch advocate of antitrust enforcement, and Bidens choice of him, along with the appointment of Lina Khan to the Federal Trade Commission, was widely seen as a signal that the new administration was assembling whatWiredcalled an antitrust all-star team.

Big Tech critic Tim Wu joins Biden administration to work on competition policy, boomed CNBC, whileMarketwatchadded, Anti-Big Tech crusader reportedly poised to join Biden White House. Chicago law professor Eric Posners piece forProject Syndicatewas titled Antitrust is Back in America.Posner noted Wus appointment comes as Senator Amy Klobuchar has introduced regulatorylegislationthat ostensibly targets companies like Facebook and Google, which a House committee last year concluded haveaccrued monopoly power.

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Wus appointment may presage tougher enforcement of tech firms. However, he has other passions that got less ink. Specifically, Wu who introduced the concept of net neutrality and onceexplained it to Stephen Colbert on a roller coaster is among the intellectual leaders of a growing movement in Democratic circles to scale back the First Amendment. He wrote an influential September, 2017 article called Is the First Amendment Obsolete? that argues traditional speech freedoms need to be rethought in the Internet/Trump era. He outlined the same ideas in a 2018 Aspen Ideas Festival speech:

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Listening to Wu, who has not responded to requests for an interview, is confusing. He calls himself a devotee of the great Louis Brandeis, speaking with reverence about his ideas and those of other famed judicial speech champions like Learned Hand and Oliver Wendell Holmes. In the Aspen speech above, he went so far as to say about First Amendment protections that these old opinions are so great, its like watchingThe Godfather,you cant imagine anything could be better.

If you hear a but coming in his rhetoric, you guessed right. He does imagine something better. The Cliffs Notes version of Wus thesis:

The framers wrote the Bill of Rights in an atmosphere where speech was expensive and rare. The Internet made speech cheap, and human attentionrare. Speech-hostile societies like Russia and China have already shown how to capitalize on this cheap speech era, eschewing censorship and bans in favor of flooding the Internet with pro-government propaganda.

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As a result, those who place faith in the First Amendment to solve speech dilemmas should admit defeat and imagine new solutions for repelling foreign propaganda, fake news, and other problems. In some cases, Wu writes, this could mean that the First Amendment must broaden its own reach to encompass new techniques of speech control. What might that look like? He writes, without irony: I think the elected branches should be allowed, within reasonable limits, to try returning the country to the kind of media environment that prevailed in the 1950s.

More ominously, Wu suggests that in modern times, the government may be more of a bystander to a problem in which private platforms play the largest roles. Therefore, a potential solution (emphasis mine) boils down to asking whether these platforms should adopt (orbe forced to adopt) norms and policies traditionally associated with twentieth-century journalism.

That last line is what should make speech advocates worry.

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Wus appointment may not matter a lot to those concerned about constitutional freedoms because, as Stanford professor Nate Persily puts it, the current Supreme Court would be very hostile to any attempt to water down the First Amendment. If theres one thing thats consistent about the Roberts court, says Persily, its very strong speech protections.

However, theres a paradox embedded in this new Democratic mainstream thinking about speech in the Internet era. As one activist put it to me last week, the new breed of Democratic-leaning thinkers like Wu wants to be anti-corporate and authoritarian at the same time. Their problem, however, is that in order to effect change through authoritative action, they need to enlist the aid and cooperation of corporate power.

This paradox casts even the antitrust all-star team narrative about people like Wu and Khan in a different light. What may begin as a sincere desire by the Biden administration (or, at least, by figures like Wu, who by all accounts is a real antitrust advocate) to break up tech monopolies, may end in negotiation and partnership.

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While the liberal tradition of the party tilts toward antitrust action, the new, more authoritarian form of progressivism currently gaining traction is tempted by the power these companies wield, and instead of breaking these firms up, may be more likely to seek to appropriate their influence.

You can see this mentality in the repeated exchanges between Congress and Silicon Valley executives. An example is the celebrated October 23, 2019 questioning of Mark Zuckerberg by Alexandria Ocasio-Cortez in aHouse Financial Services Committee hearing. The congresswoman, as staunch a believer in the new approach to speech as there is in modern Democratic Party politics, repeatedly asks Zuckerberg questions like, So, you wont take down lies or you will take down lies? and Why you label theDaily Caller, a publication well-documented with ties to white supremacists, as an official fact-checker for Facebook?

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Grasping that everyone whos ever thought about speech issues throughout our history has been concerned with the publication of falsehoods, incitement to violence, libel, hate speech, and other problems, the issue here isnt thewhat, but thewho.The question isnt whether or not you think theDaily Callershould be fact-checking, but whether you think its appropriate to leave Mark Zuckerberg in charge of naming anyone at all a fact-checker. AOC doesnt seem to be upset that Zuckerberg has so much authority, but rather that hes not using it to her liking.

A minority of activists within Democratic Party circles believes that the fundamental reason platforms like Facebook end up being what journalist Matt Stoller describes as speech dumpster fires has to do with the financial model of these companies.

These are advertising monopolies who have centralized control over the discourse, is how Stoller puts it. Hepublished a piecefor the American Economic Liberties Project recently that suggests, A possible reform path would be to remove protections for firmsthatuse algorithms to monetize data. His point is that firms like Facebook are incentivized to push users of all political persuasions toward the most angering, conspiratorial, sensational content, while also discouraging exposure to alternative or debunking points of view a primary driver of our fact-starved political dilemma.

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In another piece the AELP published after January 6th, How To Prevent the Next Social Media-Driven Attack On Democracyand Avoid a Big Tech Censorship Regime,the Project noted that banning Donald Trump from Twitter is ineffective even as a draconian solution, because it doesnt alter the platforms basic incentive structure. Targeting the clickbait ad sales model for regulatory reform isnt a panacea, either, but from the standpoint of traditional liberalism, breaking up surveillance advertising monopolies has to be better than partnering with said monopolies to switch out one elitist concept of speech control for another.

This is where the paradox comes in. Every time a Democratic Party-aligned politician or activist says he or she wants the tech companies to take action to prevent, say, the dissemination of fake news, one has to realize that it makes little sense for those same actors to then turn around and advocate for breakups of those same firms. Anyone genuinely interested in clamping down on harmful speech would consciously or unconsciously want the landscape as concentrated as possible, because an information bottleneck makes controlling unwanted speech easier.

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This idea of needing a more activist conception of speech control is clear in Wus writing. He speaks about the First Amendment operating as a negative right against coercive government action, while in the modern environment, the government not only needs to secure the freedomtospeak, but freedomfromabuses. He posits a First Amendment that acts as a right that obliges the government to ensure a pristine speech environment. Because that would be difficult to accomplish in the First Amendments current form, he suggests expanding the category of state action itself to encompass the conduct of major speech platforms like Facebook or Twitter.

This is the subtext of those constant congressional demands that tech platforms fix the problems of unfettered speech. We have another round of such hearings coming this week. The House Energy and Commerce Committee will be having Zuckerberg, Googles Sundar Pichai, and Twitter CEO Jack Dorsey in to discuss, Disinformation Nation: Social Medias Role in Promoting Extremism and Misinformation.

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The Committees ranking members and subcommittee chairs, Frank Pallone, Jr. of New Jersey, Mike Doyle of Pennsylvania, and Jan Schakowsky of Illinois, are adopting the now-familiar line of pushing to hold the tech firms accountable for their speech environments,sayingcongress must begin the work of changing incentives driving social media companies to allow and even promote misinformation and disinformation.

Do these members of congress, or thinkers like Wu, want to break up these monopolies, or harness them? To date, the answer has run decidedly in one direction. Previous congressional hearings involving tech CEOs Im thinking particularly of anOctober, 2017 hearing of the Senate Judiciary Committeein which Hawaiis Mazie Hirono demanded that the platforms come up with plans to keep bad actors who sow discord from manipulating social media already resulted in an overt partnership between Washington and Silicon Valley over content moderation decisions. The only question is, will that partnership become more expansive, as politicians become increasingly tempted by the power of these companies?

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As Stoller puts it, the Democrats have turned the tech battle into something like aLord of the Ringscontest, where the fight ends up being over the one ring of speech control. Others point out that the situation for new government appointees in the Biden administraiton will be complicated by the input of the intelligence services, whose point of view on this issue is clear and absolute: they love the bottleneck power of the tech monopolies and would oppose any effort to dilute it.

Still others wonder about the wisdom of creating powerful new partnerships with Silicon Valley, given that political realities may change and another set of actors may soon be driving the content moderation machine. Its not like all this ends with the Biden White House, is how Persily puts it.

Wus comment about returning to the kind of media environment that prevailed in the 1950s is telling. This was a disastrous period in American media that not only resulted in a historically repressive atmosphere of conformity, but saw all sorts of glaring social problems covered up or de-emphasized with relative ease, from Jim Crow laws to fraudulent propaganda about communist infiltration to overthrows and assassinations in foreign countries.

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The wink-wink arrangement that big media companies had with the government persisted through the early sixties, and enabled horribly destructive lies about everything from the Bay of Pigs catastrophe to the Missile Gap to go mostly unchallenged, for a simple reason: if you give someone formal or informal power to choke off lies, theythemselvesmay now lie with impunity. Its Whac-a-Mole: in an effort to solve one problem, you create a much bigger one elsewhere, incentivizing official deceptions.

That 1950s period is attractive to modern politicians because it was a top-down system. This was the era in which worship of rule by technocratic experts became common, when the wisdom of the Best and the Brightest was unchallenged. A yearning to return to those times runs through these new theories about speech, and is prevalent throughout todays Washington, a city that seems to think everything should be run by people with graduate degrees.

Going back to a system of stewardship of the information landscape by such types isnt a 21st-century idea. Its a proven 20th-century failure, and signing up Silicon Valley for a journey backward in time wont make it work any better.

This post first appeared at taibbi.substack.com and is republished here with permission.

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Matt Taibbi: A Biden appointee's troubling views on the First Amendment - National Post

Can a Christian professor be disciplined or fired for refusing to call a transgender student by a preferred pronoun? We may find out. The professors lawsuit was initially dismissed, but last week a federal appeals court reinstated the case, citing plausible violation of his First Amendment rights.

Nicholas Meriwether has taught philosophy for years at Shawnee State University, a public school with about 3,500 students in southern Ohio. As the Sixth Circuit Court of Appeals tells the story, in an opinion by Judge Amul Thapar, Mr. Meriwethers pedagogical method is to hold Socratic discussions, while addressing students as Mr. or Ms. to create an atmosphere of seriousness.

After a class in early 2018, a student whom Mr. Meriwether had called sir approached and requested to be addressed with feminine pronouns. The professor said he wasnt sure that he could comply, Judge Thapar writes, because his sincerely held religious beliefs prevented him from communicating messages about gender identity that he believes are false. The student allegedly got hostile, saying I guess this means I can call you a [expletive], while promising that Mr. Meriwether would be fired.

Mr. Meriwethers dean suggested a way forward: He could simply quit using all sex-based references, including basic pronouns like he and she. The professor objected that trying to speak like this would be impossible, but he began calling the transgender student by last name only. Complaining to administrators, the student threatened to hire a lawyer.

The universitys Title IX office said Mr. Meriwethers refusal to recognize the students identity was disparate treatment that amounted to a hostile environment. A formal warning was placed in his file, urging him to change his ways or face further corrective actions.

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Pronouns and the Philosophy Professor - The Wall Street Journal

All forms of violence are condemned

Wilkes County Democrats, along with fellow N.C. 5th Congressional District Democrats, condemn all forms of violence, discrimination, racism, harassment, and xenophobia. We are saddened by the violence against the Asian American community in Atlanta and around the country. Misinformation about COVID-19 has spread and unfortunately has caused a vital segment of the American population to become targets of hate.

The Center for the Study of Hate and Extremism found that anti-Asian American hate crimes reported to police rose 149% in just the last year. Experts tell us that, for various reasons, these crimes often go under-reported.

The violence in Atlanta, brings awareness to the escalating violence against Asian Americans. We, the Democrats of Wilkes County and the N.C. 5th Congressional District, stand with our Asian American brothers, sisters, friends, family and others in denouncing such violence against any member of our society.

This violence is escalating across this country. We call for unity and peace. The Asian American community, like all others, wants to live in a country where they can work, worship, send their children to school and form friendships. With the growing threat of violence, this is becoming difficult if not impossible.

We mourn with the families that have lost loved ones.

We call on our leaders to recognize the violence as a public health crisis.

We call on individuals to shed light on hate and racism wherever they find it.

Working united, we can make a difference across our district moving forward together as a community.

Wilkes County Democratic Party chair,

First Amendments limitations addressed

The First Amendment only prohibits Congress the legislative branch of the United States government from censoring free speech. The First Amendment does not prohibit companies such as Twitter, Facebook and the Journal-Patriot from restricting speech.

You have the right to speak and hand out pamphlets while standing on the sidewalk, but you have no right to force anyone else to publish or disseminate your speech.

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Letters to the editor | Opinion | journalpatriot.com - Wilkes Journal Patriot

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Oakland University students who took a media law class from Jane Briggs-Bunting learned quickly that homework was not optional.

As a journalist who earned a law degree, she would have them read hundreds of pages of First Amendment case law, then stand them up in class and drill them with questions, leaving no refuge for slackers.

"Despite the fact that that class had a reputation for being so difficult, her students became very loyal to her," said Garry Gilbert, a former pupil and editor of The Oakland Press, who now runs the university's journalism program. "They knew that she would work them hard, but they also knew that she cared about whether they were going to be successful."

Briggs-Bunting of Rochester died Tuesdayof complications from cancer.She was 70.

In a career that spanned more than 40 years, Briggs-Bunting was a vocal champion of open government and was an expert on media law who helped educate hundreds of journalism students. Those students remember her exacting teaching style, but also her kinder side, when she became their friends, attended their weddings and advised their careers.

"Janegave me and so many students a solid foundation in journalism, but more, a foundation for life," said Gail DeGeorge, a formerpupil who now editsthe Global Sisters Report, a website that focuses on Catholic women. "We were alwaysthe underdog at Oakland University, in the shadow of better-established and well-known journalism programs at the University of Michigan and Michigan State University, but that didn't deter Jane from pushing her students to reach high.

Briggs-Bunting grew up in Fairview Park, Ohio, a Cleveland suburb, and attended the nearby Magnificat High School. Her passion for journalism began there,said her husband, Robert Bunting.

"She attended ajournalism summer camp at the University of Detroit and she just loved it," he said. "She said'This is what I want to do' and it became her passion."

Briggs-Bunting later enrolled at U of D in the journalism program, where the Free Press's then-managing editor, Neal Shine, was an instructor.

Jane Briggs-Bunting hugs Neal Shine after Briggs-Bunting was inducted into the Michigan Journalism Hall of Fame, April 12, 2003. Briggs-Bunting use to be a staff member at the Detroit Free Press and Shine is a former publisher of the paper.(Photo: Mary Schroeder, Detroit Free Press)

"Jane was my father's student at U of D and he hired her at the Freep," said Shine's son, Daniel Shine. "I think he was drawn to her commitment to right and wrong, her passion to find the truth no matter the cost or consequences."

Briggs-Buntingbegan her career at the Detroit Free Press in the early 1970s as a reporter working on Action Line,a Page One feature that promised readers it would cut red tape ... stand up for your rights.

She was "a 1970s version of Hildy Johnson from 'His Girl Friday.'" An "aggressive reporter who didnt stop until she was sure of her answers," saidPeter Gavrilovich, an Action Line colleague who went on to become a longtime reporter, editor and columnist at the Free Press.

"Jane was special," he said. "Those of us who worked with her will always remember her zeal for the profession, her love of the Free Press."

They'll remember her kindness, too, Gavrilovich said. Shine once noted his love of model trains and lamentedthat he'd never had one as a kid. That yearat Christmas, Briggs-Bunting and her Action Line colleagues bought one, set it up in their office on the fifth floor of the Free Press building and invited Shine up for a surprise.

Shine was so tickled he immediately sat down on the floor to play with it "right through deadline, as I recall," Gavrilovich said.

Briggs-Bunting was promoted from the Action Line to the police beat, where she met her future husband, Robert Bunting. They met at the old Detroit Police Headquarters at 1300 Beaubien, where Bunting worked as a detective sergeant on the staff of Police Commissioner John Nichols.

She worked in an office the Free Press kept in the building. They talked regularly and soon learned they were both law students, sheat U of D and Bunting at what was then the Detroit College of Law.

Briggs-Bunting earned her law degreein 1974 andmarried Bunting that same year. She continued reporting for the Free Press covering stories like the Oakland County Child Killer and the disappearance of former Teamsters President Jimmy Hoffa.

In 1978, she left the paper to teach at Oakland University. She would stay there until 2003, when she left to take over the journalism program at Michigan State University.

In those academic roles, she molded the character of future journalists, pressing them to hold public officials to account.

She assigned students to cover the Oakland University Board of Trusteesmeetings and ordered them to remain there until they were forced to leave by a board that wanted to conduct a presidential search in private.

She served as adviserto the student newspaper, which waged campaigns against the university, includingtwo lawsuitspressing for more transparency in the search.

By the early 1990s, her dictums carried so much weight, students referred to them as "Jane Says,"a nod to a then-popular Janes Addiction song by the same name. Briggs-Bunting smiled at the phrase for years.

"She was such an important influence on so many in our formative years that critical period in college when you're figuring out how to get through life," saidMark Clausen, a former pupil who's now anattorney in Seattle.

When Briggs-Bunting was inductedto the Michigan Journalism Hall of Fame in 2003, staffers ofthe school paper, The Oakland Post, published an eight-page special section with stories by current and former students describing the impact she'd had on them. The front page headline was "Jane Rocks."

Jane Briggs-Bunting of Oakland University displays a present in 2003 from her staff at the student paper as she was inducted into the Michigan Journalism Hall of Fame.(Photo: Mary Schroeder, Detroit Free Press)

"I remember how her eyes would sparkle when she talked about the importance of the First Amendment and the role of the press in helping to safeguard democracy," said Ann Zaniewski, who was editor-in-chief that year. "She said many times that she would put her life on the line to defend the First Amendment."

Another former pupil, Meg O'Brien, said Briggs-Bunting was fearless.

Jane didn't shy away from fights that needed to be fought, said O'Brien, who went on to work at the Chicago Tribune as associate business editor and online business editor. She emphasized that journalism wasn't a popularity contest and trained us how to challenge institutions and take on powerful people when they weren't doing the right things. The profession needs passionate, fearless watchdogs like Jane now more than ever."

Bunting said he'd seen his wife'sinfluence firsthand when he would travel the country for his law practice. Briggs-Bunting would often accompany him and make arrangements to visit with her former students.

"We're traveling around the country, and we're running into, you know, editors, top reporters, everywherefrom the Miami Herald to Bloomberg News," Bunting said. "We were always having lunch or dinner with former students."

Students were naturally drawn to Briggs-Bunting, said Ritu Sehgal, politics editor at the Free Press.

"She was smart, funny, sassy," Sehgal said."For a generation of students, she epitomized what it meant to be a journalist someone who believed in protecting what the First Amendment stood for, even when it came to the student publications she oversaw. Many students remained lifelong friends and turned to her for advice even in their professional careers.

A lifelong lover of animals and nature, Briggs-Bunting also authored three childrens books about them, Whoop For Joy: A Christmas Wish, Laddie of the Light and "Llama on the Lam."

To escape from their busy careers, the couple lived on a 48-acre farm in northern Oakland County, where they raised horses and rescued other animals.

"We really had an idyllic life," Bunting said.

Oakland University journalism professor Jane Briggs-Bunting poses with Whoop for Joy, the inspiration for her first children's book, "Whoop for Joy: A Christmas Wish," on her Addison Township farm in this 1995 file photo. The gentle brown giant was a racehorse who won his first and only race at the Detroit race track on July 19, 1975.(Photo: EDWARD NOBLE, Associated Press)

From her university position, Briggs-Bunting also was able to combine her passion for media and law, explaining and defending media rights, the Freedom of Information Act and the Open Meetings Act. She also authored a handbook used by reporters titled, Legal Guidelines for Reportersin Michigan.

She was a tough and smart but also very caring person,"said Steve Byrne, who served on the board of MSUs student paper with her for six years. "With her management, legal and journalistic background, I thought she was literally the perfect board president for the State News. She really cared about journalism, and seeing young journalists grow and thrive. And she wasnt afraid to push people to help make that happen.

Through it all, she remained a journalist at heart.

"Jane was always the journalist-professor, not the professor of journalism,"Clausen said.

Throughout her career, Briggs-Bunting continued to press for governmental transparency. She was a founding member of the Michigan Coalition for Open Government, a nonprofit thateducates Michiganders about their rights to see their government work.

The group created an award for governmental transparency, naming it for Briggs-Bunting, who was its first recipient.

Even after turning to teaching, Briggs-Bunting continued to write, freelancing pieces for Life magazine and People. One of the biggest stories of her careeris one she never shared in print, Gilbert said.

Jane Briggs-Bunting(Photo: Provided by Jane Briggs-Bunting)

In August 1987, Northwest Flight 255 crashed on takeoff from Metro Airport, killing 156 people. The nation was mesmerized to learn that 4-year-old Cecelia Cichan somehow survived.

Media from around the world were competing furiously to land an interview with the girl, who became known as America's orphan. But Cecelia's extended family, who took custody of her after her parents died in the crash, insisted onprotecting her privacy, arguing she deserved a normal life.

Life magazinetasked Briggs-Bunting with getting the story to run on the six-month anniversary of the crash. She tracked down the girl in Alabama and flew there to join a photographer.

Gilbert recalled how Briggs-Bunting described the scene.

"They find Cecilia at the condos where she was living with her aunt and uncle," Gilbert said. "Jane goes up to the door and knocks. The babysitter answers the door and Cecilia is standing right behind the babysitter."

Briggs-Bunting asked to speak to the aunt or uncle. The babysitter said she expected them home soon and she invited the two journalists inside to wait.

"Janesaid 'No, we'll wait out here,'" Gilbert recalled.

When the uncle arrived a few minutes later, he politely declined an interview, stressing again the family's desire to protect the child'sprivacy.

"Jane basically said 'Thank you very much' and walked away," Gilbert said. "She felt that was the right thing to do. Some reporters probably would have tried to, you know, push or to find some other way to get a story out of that. But she felt very strongly that that little girl deserved her privacy."

Cecelia maintained that silence until 2013, when at age 30, she appeared in a documentary about plane crash survivors.

In addition to her husband, Jane is survived by her sister, Sally; nieces Catherine, Eileen and Sarah; nephews David and Giles,grandnieces and -nephews, a menagerie of adopted and rescued animals and by journalists nationwide who will continue to embody her fight to defend media rights. A memorial service will be scheduled at a later date after the pandemic abates.

Free Press editors Sally Tato Snell and Ritu Sehgal contributed to this report.

Contact John Wisely: 313-222-6825 or jwisely@freepress.com. On Twitter @jwisely

Read or Share this story: https://www.freep.com/story/news/local/michigan/2021/03/24/jane-briggs-bunting-who-championed-1st-amendment-dies-70/4735934001/

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Jane Briggs-Bunting, who championed the 1st Amendment, dies at 70 - Detroit Free Press

For much of the past four years, psychiatrist Dr. Bandy X. Lee, a professor at Yale University, warned the public about the mental health of then-President Donald Trump. Her statements ended up costing her her job at Yale, and this week, Lee sued Yale for breaking her employment contract.

The survival of human civilization for four years turned on the psychological condition of a man whom Lee believed in her professional opinion was mentally unfit for office.

Some observers, including myself and my law school classmate George T. Conway III, agreed with Lees assessment, publicly expressing concern that Trumps extreme narcissism made him dangerous.

Up until noon this past Jan. 20, Trump had the power to launch a nuclear attack. The survival of human civilization for four years turned on the psychological condition of a man whom Lee believed in her professional opinion was mentally unfit for office.

Many of us urged that Trump be removed under the 25th Amendment, which was ratified in the 1960s to address physical or mental incapacity of a president. Along with Norman Eisen of the Brookings Institution, I co-authored a chapter on the 25th Amendment to Lees book, The Dangerous Case of Donald Trump.

But not everyone agreed with our assessment of Trumps mental health. Dr. Ronny Jackson, the White House physician at that time who later successfully ran for Congress as a Republican believed Trump was fit for office. Law professor Alan Dershowitz, often an apologist for Trump and Trumps lawyer in his first impeachment trial, believed our concerns about Trumps mental condition were overblown. Some psychiatrists agreed with that assessment as well. Who was right?

Nuclear war did not come, so our worst fears never came to be. But Trumps reaction to his election loss in November and his incitement of the Capitol riot of Jan. 6 proved that he could be extremely dangerous. The events of Jan. 6 also proved that agitation can spread easily between a charismatic leader and his followers when egging one another on to do more irrational and more violent things.

The events of Jan. 6 proved that agitation can spread easily between a charismatic leader and his followers.

All of us had the freedom to raise our concerns about Trumps mental health without fear of retribution. The First Amendment gave us that right, and our employers respected our freedom to speak our mind on a matter of great public importance. All of us, that is, except Lee.

Lee continued to question Trumps mental health and point out the danger he posed for our country and the world. Things appeared to come to a head when she also raised questions about Dershowitz in response to a tweet I myself posted after the professor boasted that he had a perfect sex life which, I pointed out, echoed Trumps narcissistic boast in 2019 that he had had a perfect phone call with the president of Ukraine.

Lee questioned whether Dershowitz and Trump shared the same psychosis. Dershowitz, normally a champion of free speech, wrote Yale and demanded an investigation. In 2020, the university fired Lee, who was on a term contract to teach at the medical school. Yales reason: Her alleged violation of the Goldwater Rule.

The rule was endorsed by the American Psychiatric Association in the 1970s after some psychiatrists expressed concern about 1964 presidential candidate Barry Goldwaters mental fitness to be commander in chief.

But regardless of whether these psychiatrists were correct about Goldwater a fiery speaker who was nonetheless a model of mental stability compared with Trump the Goldwater Rule is wrong. It was an attempt by the psychiatric profession to prevent its members from participating in one of the most important parts of political discourse, which is assessment of the character of our leaders.

The psychiatric profession needs to repudiate the Goldwater Rule.

The psychiatric profession needs to repudiate the Goldwater Rule. The mental health condition of public officials is not simply a private matter. The public, including psychiatrists themselves, must be free to talk about it. The 25th Amendment recognizes that physical or psychiatric incapacity of a president can be grounds for removal by the Cabinet and Congress. That removal mechanism, as well as the election process to remove a president, is substantially weakened if psychiatrists are not permitted to speak out about the presidents mental health. A free country depends upon free speech, and that includes free speech for Lee.

There is the fact that Yale, as a private university, is not a state actor bound by the First Amendment. Lee was not tenured, so perhaps Yale believed that meant she had less of a right to free speech. But the university has repeatedly committed itself to the principle of academic freedom, including its well known 1974 Woodward Report and statements about freedom of expression in the faculty handbook, and is bound to honor that commitment in its contracts with academic employees including Lee.

This matter should not have to be decided in a court of law. Yale should stand up for the academic freedom of its faculty, which is essential to the core mission of a university. Even if Lees comment about Dershowitz was superfluous, it was well within the scope of her academic freedom.

Her observations about Trump were a critical part of the public conversation about the psychological disposition of a very controversial president. Everyone knew that she had not examined Trump as a patient and that her observations were based on publicly available information.

And her observations, as well as her experience with mental health, are as important in the case of Trump as her opinions are important in the many cases where she has examined patients, including as an expert witness for mental capacity in criminal trials.

Even more important than Lees lawsuit against Yale is that we should examine the role of mental health professionals in our political system. A few have played a pernicious role, including the psychologists who advised the government on how to make the post-9/11 torture program more effective for coercing detainees. Others, such as Lee, have played a constructive and necessary role in warning about the consequences of vesting political power in persons who might abuse it. For that she should not be punished.

Richard W. Painterwas the chief White House ethics lawyer from 2005 to 2007, underPresident George W. Bush. He is currently the S. Walter Richey Professor of Corporate Law at the University of Minnesota, and is a graduate of Harvard College and Yale Law School.

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Was a Trump critic's 1st Amendment violated by Yale? We're about to find out. - MSNBC

Our interview this week is with Francis Fukuyama, a fellow and teacher at Stanford and a renowned scholar and public intellectual for at least three decades. He is the coauthor of the Report of the Working Group on Platform Scale. Its insightful on the structural issues that have enhanced the power of platforms to suppress and shape public debate. It understands the temptation to address those issues through an antitrust lens as well as the reasons why antitrust will fail to address the threat that platform power poses to our democracy. As a solution, it proposes to force the platforms to divest their curatorial authority over what Americans (and the world) reads, creating a host of middleware suppliers who will curate consumers feeds in the way that consumers prefer. We explore the many objections to this approach, from first amendment purists to those, mainly on the left, who really like the idea of suppressing their opponents on the right. But it remains the one policy proposal that could attract support from left and right and also make a real difference.

In the news roundup, Dmitri Alperovich, Nick Weaver, and I have a spirited debate over the wisdom of Googles decision to expose and shut down a western intelligence agencys use of zero day exploits against terrorist targets. I argue that if a vulnerabilities equities process balancing security and intelligence is something we expect from NSA, it should also be expected of Google.

Nate Jones and Dmitri explore the slightly odd policy take on SolarWinds that seems to be coming from NSA and Cyber Command the notion that the Russians exploited NSAs domestic blind spot by using US infrastructure for their attack. That suggests that NSA wants to do more spying domestically, although no such proposal has surface. Nate, Dmitri, and I are united in thinking that the solution is a change in US law, though Dmitri thinks a know your customer rule for cloud providers is the best answer, while I think I persuaded Nate that empowering faster and more automatic warrant procedures for the FBI is doable, pretty much as we did with the burner phone problem in the 90s.

The courts, meanwhile, seem to be looking for ways to bring back a Potter Stewart style of jurisprudence for new technology and the fourth amendment: I cant define it, but I know it when it creeps me out. The first circuits lengthy oral argument on how long video surveillance of public spaces can continue without violating the fourth amendment is a classic of the genre.

Dmitri and Nick weigh in on Facebooks takedown of Chinese hackers using Facebook to target Uighurs abroad.

Dmitri thinks we can learn policy lessons from the exposure (and likely sanctioning) of the private Chinese companies that carried out the operation.

Dmitri also explains why CISAs head is complaining about the refusal of private companies to tell DHS which US government agencies were compromised in SolarWinds. The companies claimed that their NDAs with, say, Treasury meant that they couldnt tell DHS that Treasury had been pawned. Thats an all too familiar example of federal turf fights hurting federal cybersecurity.

In our ongoing feature, This Week in U.S.-China Decoupling, we cover the Disaster in Alaska evaluate the latest bipartisan bill to build a Western technology sphere to compete with Chinas sector, note the completely predictable process ousting of Chinese telecom companies from the US market, and conclude that the financial sectors effort to defy the gravity of decoupling will be a hard act to maintain.

Always late to embrace a trend, I offer Episode 1 of the Cyberlaw Podcast as a Non-Fungible Token to the first listener to cough up $150, and Nick explains why it would be cheap at a tenth the price, dashing my hopes of selling the next 354 episodes and retiring.

Nick and I have kind words for whoever is doxxing Russian criminal gangs, and I suggest offering the doxxer a financial reward (not just a hat tip in a Brian Krebs column.) We have fewer kind words for the prospect that AI will soon be able to locate, track, and bankrupt problem gamblers.

I issue a rare correction to an earlier episode, noting that Israel may not have traded its citizens health data for first dibs on the Pfizer vaccine. It turns out that what was deidentified aggregate health data, Israel offered Pfizer which with proper implementation may actually stay aggregate and deidentified. And I offer my own hat tip to Peter Machtiger, for a student note in an NYU law journal that cites the Cyberlaw Podcast, twice!

And more!

Download the 355th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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The Cyberlaw Podcast: Can Editorial Middleware Cut the Power of the Big Platforms? - Lawfare

In this image from video, Hennepin County Judge Peter Cahill discusses motions before the court on Tuesday in the trial of former Minneapolis police officer Derek Chauvin at the Hennepin County Courthouse in Minneapolis. Court TV/AP hide caption

In this image from video, Hennepin County Judge Peter Cahill discusses motions before the court on Tuesday in the trial of former Minneapolis police officer Derek Chauvin at the Hennepin County Courthouse in Minneapolis.

On the second day of former Minneapolis police officer Derek Chauvin's murder trial, the judge considered a motion about the testimony of minors including a witness whose video of the killing of George Floyd was seen around the world.

Hennepin County District Judge Peter Cahill was asked to determine whether the court would permit broadcast of minors or former minors set to testify in the case. The high-profile trial is the first in Minnesota history to be televised.

Cahill ruled in favor of prosecutors that no television images would be allowed during the testimony of people who were under 18 at the time they saw Floyd die, but audio of their testimony would be allowed.

The hearing centered on at least four people whose names would be kept confidential and off livestreaming during their testimony.

The judge agreed with Leita Walker, the attorney representing the media coalition covering the trial, that the First Amendment allows for the press to decide whether to publish names of the witnesses who are minors. He said an option is to refer to the individuals by their first names only if the witnesses are comfortable with that.

A key eyewitness in the case, referred to in court Tuesday as D.F. , was 17 when she took the bystander video with a mobile phone. The images taken by D.F. showed Chauvin kneeling on the neck of Floyd, who was prone and handcuffed for nearly nine minutes. Floyd was also still handcuffed on the stretcher when paramedics arrived.

Chauvin is charged with second- and third-degree murder and second-degree manslaughter.

Witness testimony resumed at 9:15 a.m. local time, including testimony by eyewitness Donald Williams, a pro martial arts fighter. He said he called 911 "to call the police on the police" after officers at the scene didn't respond to his shouting and swearing for Chauvin to take his knee off Floyd's neck.

From the stand, Williams has described a variety of chokeholds, including what he called a "blood choke" used on Floyd.

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Judge In Chauvin Trial Rules That Underage Witnesses Can Testify - NPR

Former President Trumps actions preceding the riot were a disgraceful dereliction of duty, said Senator Mitch McConnell on the last day of President Donald Trumps second impeachment trial. There is no question that President Trump is practically and morally responsible for provoking the events of that day.

McConnell spoke these words while acquitting Trump on procedural grounds for his involvement in the Jan. 6 insurrection. Many Republican senators have similarly acknowledged that Trump bears responsibility for the attack. Yet most refused to convict the former president during his impeachment trial, claiming against the weight of scholarship and precedent to the contrary that they thought the Senate did not have jurisdiction to try a former officeholder. Without a clear procedure for holding Trump and other powerful officials accountable for engaging in the Jan. 6 insurrection, the U.S. government can only prosecute their followers who were physically at the Capitol.

The problem with prosecuting only those physical crimes is the resulting lack of consequences for officials who fully engaged in the insurrection, but who did not literally storm the Capitol. Those present at the invasion may receive prison time, but their powerful government enablers will continue operating just underneath the threshold for arrest. They have come away from this attack confident that their powerful positions are safe as long as their supporters take the fall for them. Without a slate of proportional responses to conduct like Trumps including disqualification from office, rather than criminal penalties alone the U.S. incentivizes the next crop of insurrectionist officials.

Fortunately, a perfectly tailored deterrent already exists in the Constitution: Section Three of the Fourteenth Amendment. Section Three bars from office anyone who engages in insurrection or rebellion after taking an oath to support the U.S. Constitution. In this way, it defines an unequivocal requirement for office, one which governs the behavior of current and former officials alike. While there is debate over whether Section Three requires an enabling statutein other words, whether it is enforceable on its ownthere is no doubt that Congress can choose to legislate a specific process for enforcing it.

Last month, the introduction of H.R. 1405 marked Congresss first effort to enforce Section Three since Reconstruction. Introduced by Representative Steve Cohen (D-TN), the legislation creates a civil procedure for enforcing Section Three of the Fourteenth Amendment in federal court. Passage of the bill would be an appropriate first step in holding accountable the officeholders who engaged in the Jan. 6 insurrection. The bill is an unambiguous belt-and-suspenders measure, clarifying that eligibility for office is still dependent on allegiance to the United States. Responsibly, it preserves the defendants rights by establishing a fair, non-partisan judicial procedure to determine ones continued ability to hold office.

Congress should enact H.R. 1405 not only to effectuate accountability for Jan. 6, but also to lay out clear expectations of consequences for any future insurrectionist activity. H.R. 1405s proposed process is good public policy. It would lend legitimacy to the enforcement process, letting those who engaged in the Jan. 6 insurrection defend themselves in court, while breathing life into the Constitutions bare-minimum mandate: preservation of the republic.

History

Section Three initially disqualified confederates from office after the Civil War, but Congress granted them amnesty shortly afterward. Since then, Section Three historically has been a little-used and little-studied constitutional provision. Its rare enforcement is not because it is dormant or of limited effect Congress intended that it would govern all future insurrectionist conduct but because those who take constitutional oaths seldom engage in insurrection or rebellion.

While rare, Congress has taken H.R. 1405s approach before, and to great effect. In the 1800s, Congress passed a statute requiring federal prosecutors to bring quo warranto actions, cases challenging an officials right to hold office, against former confederates. The resulting enforcement actions resulted in multiple resignations, but no useful judicial decisions, before Congress granted the confederates amnesty and repealed the statute. Accordingly, there is precedent for legislating a cause of action under Section Three.

As explained by Mark A. Graber, because a bill invoking Section Three would merely enforce an existing qualification for office in the Constitution, and would provide for judicial review, it would not violate the Bill of Attainder Clause. It also would not violate the First Amendment, for the same reasons that the First Amendment did not bar Trumps impeachment. As a government official during the relevant conduct, Trumps First Amendment rights are narrower than a private citizens. Nor does the First Amendment immunize Trumps non-speech conduct that violated Section Three such as his inexcusable delay in coming to the assistance of Congress.

The Bill

H.R. 1405 provides useful clarity on a number of essential questions. First, the proposed bill seeks to codify Congresss definitions of terms in Section Three that may not otherwise be clearly defined, and could cause confusion:

The bill also seeks to clarify some basic questions about the mechanics of applying Section Three:

Conclusion

As detailed elsewhere, Trumps behavior on Jan. 6, his widespread efforts to overturn the election, and his attempt to prevent a transition of power caused the Jan. 6 insurrection. His failure to protect members of Congress from attack as they engaged in a constitutionally mandated act similarly amounts to engagement in the insurrection. Section Three of the Fourteenth Amendment instructs that he is unfit for future office.

Even if one substantively disagrees with this conclusion, disagreement underscores the point. Since Jan. 6, people have attempted in various ways to hold those responsible for the insurrection accountable. The U.S. needs a centralized, non-partisan, non-political forum to resolve this questionfor Trump, for others who engaged in the Jan. 6 insurrection, and for those who might learn from our inaction in the future. The Constitution contains a mechanismSection Three of the Fourteenth Amendmentthat was created for situations exactly like this one, and H.R. 1405 sets out fair procedures for effectuating it.

* * *

The best way to move past the worst attack on our seat of government since the 1800s is distinctly American: to give the accused a fair process in front of impartial judges. Though H.R. 1405 would establish a framework, ultimately a panel of federal judges would apply the law to the facts and determine who Section Three disqualifies. This transparent and fair system would simply enforce an existing qualification for office. Regardless of outcome, public hearings help ensure public accountability, and are integral to the rule of lawespecially when someone thinks theyre above it.

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An Alternative to Impeachment: New Bill Helps Enforce Accountability for Capitol Riots - Just Security