Category Archives: First Amendment

Haskell Indian Nations University in Kansas has been accused of violating the First Amendment rights of a student journalist in a federal lawsuit submitted on Tuesday by the Foundation for Individual Rights in Education (FIRE).

FIRE filed the suit on behalf of Jared Nally, the editor-in-chief of The Indian Leader, who claimed that the university unjustly silenced him for 90 days for performing standard reporting procedures while also withholding the publications funding.

Back in October, Haskell President Ronald Graham sent a directive that prohibited routine news gathering and threatened disciplinary action after Nally requested government agencies to provide information regarding a staff members death. Graham also warned Nally about publishing articles that critique Haskell, considering it great disrespect to community members.

This incident further fueled conflict between the publication and the university. School leaders reportedly ignored Nallys requests for The Indian Leader to be officially recognized as a student organization, withholding more than $10,000 in funds without explanation, according to FIRE.

FIRE, along with the Native American Journalists Association and the Student Press Law Center, responded to the directive with a letter stating that Haskell will not interfere in the affairs of the student newspaper or impede the free expression rights of individual students in the future.

However, the lawsuit stated, they did not receive a timely response, which forced Nally and The Indian Leader to review and censor all content that cast the university in a bad light for fear of disciplinary action.

Haskell is making it very clear that they put institutional reputation above student rights. Were not only defending Jareds constitutional rights, but the rights of all Haskell students, and student reporters across the country. In doing so, were showing public institutions that the First Amendment is non-negotiable, said FIRE attorney Katlyn Patton.

Nally shared that joining his universitys student newspaper gave him a voice. Unfortunately its going to take a lawsuit for the university to listen to it, he said. Its important for student journalists to not only know our rights, but also our role. We exist to hold our university accountable and to inform our fellow students and community. We have a right to press freedom and to share these stories.

Excerpt from:
Student Editor Sues University Over Alleged First Amendment Violation - The College Post

To The Eagle:

I rarely write a letter to the editor, but last week something really struck me odd. A lady wrote "Why, Mr. Editor, do you print such rubbish instead of the informative interesting stuff?

Having served in the military and being a red blooded flag waving American I totally believe in the first amendment. But the lady wanting the editor to restrict free speech and only print what she considers informative is why our country is splitting right down the middle. She reminds me of my niece from California that said the Constitution should be re-written because it was written by a bunch of old white men, what does that mean? Old white men have no vision, no understanding how other countries were governed and wanted the US to be different? So should it be written now by a bunch of young diverse people that have no clue what is going on in the world?

I have no problem with the lady explaining how she sees the world but calling the President of the United States a "Fascist" is really hard to read, I wonder if she really understands Fascism. If she studied World Wars I and II she would know the US fought for years and lost millions of military personnel fighting Fascism and Communism. What makes her think our president would ever want Fascism?

"Fascists believe that liberal democracy is obsolete and regard the complete mobilization of society under a totalitarian one-party state as necessary to prepare a nation for armed conflict and to respond effectively to economic difficulties.[9] A fascist state is led by a strong leader such as a dictator and a martial law" Wikipedia.

Our president is elected by the people, serves in a Republic, holding one of the three branches of government, working with Congress and the Judiciary to forge laws to govern our country. I truly can't imagine that our country would ever re-write our Constitution and turn our country into a dictatorship with one party and total government control.

Richard Erickson

Cathlamet

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Do we not understand the 1st amendment? - The Wahkiakum County Eagle

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Decrying a dangerous movement to silence conservative ideas [and] religious beliefs, Gov. Greg Abbott touted a bill Friday that aims to crack down on the perceived censorship of conservative voices by social media companies.

They are controlling the flow of information and sometimes denying the flow of information, the Republican governor said at a press conference in Tyler. And they are being in the position where they're choosing which viewpoints are going to be allowed to be presented. Texas is taking a stand against big tech political censorship. We're not going to allow it in the Lone Star State.

Abbott was joined by state Sen. Bryan Hughes, R-Mineola, who is sponsoring the measure and who chairs the powerful Senate State Affairs Committee. Hughes said the bill would give Texans the right to restore their accounts when theyre mistreated.

We have a handful of billionaires in San Francisco that run these tech companies, Hughes said. It doesn't make them the gatekeeper of free speech. But that's what they want to be.

Senate Bill 12 would prohibit social media companies including Facebook, Twitter and YouTube from blocking, banning, demonetizing, or otherwise discriminating against a user based on their viewpoint or their location within Texas.

It would apply to anyone who lives in, does business in or has social media followers in Texas. Under the proposal, a person who feels theyve been wrongly barred from a platform can file a claim in court. The Texas attorney general can also bring a claim on a persons behalf. If a social media company fails to comply, the bill stipulates that the court can impose daily penalties sufficient to secure immediate compliance.

Lt. Gov. Dan Patrick, who presides over the Texas Senate, has identified the bill as one of his 31 priorities for this legislative session. Hughes filed a similar bill in 2019 that won Senate approval, but died in committee in the state House.

Facebook, Twitter and Google, which owns YouTube, did not respond to requests for comment.

TechNet, an industry association, said removing content restrictions could open the way for children to be exposed to harmful content of ill-intended users online.

This bill not only recklessly encourages companies to leave objectionable content in the public eye, but also creates a culture that supports frivolous lawsuits against American companies, said Servando Esparza, the groups executive director of Texas and the Southwest, in a statement.

Hughes said that his legislation would only apply to political and religious speech.

Were not talking about lewd, lascivious obscenity or anything like that, Hughes said.

The rhetoric about silencing conservatives ramped up following the 2020 election, when platforms including Facebook and Twitter removed former President Donald Trumps account for inciting violence during the Jan. 6 U.S. Capitol insurrection.

Republican politicians have long targeted technology giants accusing them of an anti-conservative bias and for silencing free speech, even though the actions to ban members were often in response to credible evidence that communications were inciting violence.

Abbott spokesperson Renae Eze said in a statement, "If they were truly concerned about posts inciting violence, then accounts for people like Ayatollah Ali Khamenei and Nicolas Maduro would've been banned years ago."

In January, Twitter banned an account that some in Iran believed to be linked to Iran Supreme Leader Ayatollah Ali Khamenei, the Associated Press reported, though his official account is still active. Nicolas Maduro in 2017 slammed Twitter as an "expression of fascism" after the platform suspended a handful of accounts linked to the Venezuelan president. And in January 2020, Twitter suspended more than a dozen accounts linked to Maduro and Venezuela's armed forces, according to Bloomberg.

Experts point out that the First Amendment which protects free speech only prohibits government censorship. That leaves private companies to choose their own protocols.

From a First Amendment perspective, social media companies are private actors and aren't subject to the First Amendment, Scot Powe, a professor at the University of Texas School of Law, told The Texas Tribune in January. So it's a matter of constitutional law. They can be as biased as they want in any direction they choose.

Twitter in January purged more than 70,000 accounts linked to the dangerous conspiracy theorist group QAnon for the movements connection to the U.S. Capitol attack. Alex Jones, a conspiracy theorist who often espouses violent and sometimes racist views, has been kicked off Facebook, Twitter and Spotify, among others. And Twitter in February permanently booted MyPillow CEO Mike Lindell, a fierce Trump ally who continually spread false claims about election fraud.

Closer to home, state Rep. Briscoe Cain, R-Deer Park, had his Twitter account temporarily suspended in September 2019 when he tweeted "My AR is ready for you at then-Democratic presidential candidate Beto ORourke.

Cains tweet was in response to ORourkes calls for a mandatory gun buyback program.

Texans who feel they have been unfairly targeted by these companies should be able to use our judicial system," Cain said in a statement Friday. "No one is above the law. These companies should not benefit by receiving any tax dollars through government contracts.

Twitter in September 2020 took aim at Democrat candidate Elizabeth Hernandez, who was challenging Republican U.S. Rep. Kevin Brady for his U.S. House seat. The platform forced her to remove a tweet that violated its rules against voter suppression because it encouraged people to tell Trump supporters to vote on the wrong day.

Technology companies are also facing scrutiny from Congress from both sides of the aisle. Democrats and Republicans in recent weeks have set their sights on reforming or repealing Section 230 of the Communications Decency Act of 1996. The provision shields technology companies from liability for content users post on their platforms.

In a congressional hearing last October, Facebook CEO Mark Zuckerberg told lawmakers that Democrats often say that we dont remove enough content, and Republicans often say we remove too much.

The fact that both sides criticize us doesnt mean that were getting this right, but it does mean there are real disagreements about where the limits of online speech should be, he said.

Abbott on Friday argued that the provision does not protect companies against lawsuits that could be brought under SB 12. Instead, he said it wires around Section 230.

We are making sure that these companies will be forced to comply with Sen. Hughes' bill to ensure the Texans conservative speech will not be canceled, Abbott said.

Abbotts office filed a brief with the U.S. Supreme Court that argued that states have the right to protect free speech, Hughes said.

Both President Joe Biden and his predecessor have expressed support for overhauling Section 230. Trump called for its complete repeal, as have a number of lawmakers within his party.

Three Democratic U.S. senators, meanwhile, have filed a bill that would overhaul the provision. Under the SAFE TECH Act, users could sue social media companies for content on their platforms that is threatening, harassing, discriminatory or otherwise abusive.

The state bill comes as Texas politicians, including Abbott, have tried to entice technology companies to relocate to the state from the pricey tech-hub Silicon Valley in California. Elon Musk, the CEO of electric car company Tesla Motors, recently announced he was relocating to the state. Software company Oracle in December said it was moving its headquarters from California to Austin.

SB 12 is scheduled for its first hearing before the State Affairs Committee on Monday.

Disclosure: Facebook and the University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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Gov. Greg Abbott touts bill to stop Twitter, Facebook from banning Texans - The Texas Tribune

Editors Note:A judge last month ruled that Tim Eyman will no longer be allowed to have financial control over political committees and issued $2.6 million in fines after state Attorney General Bob Ferguson filed a lawsuit against him in 2017 alleging he laundered donations, disobeyed campaign finance law and solicited kickbacks, accusations Eyman continues to deny.

In the past 22 years, by working together with our thousands of heroic supporters, weve qualified 17 statewide initiatives for a public vote. They all limited the governments power over us and have saved taxpayers $46.9 billion. And our four two-thirds-vote-to-raise-taxes initiatives have saved taxpayers billions more by stopping and deterring tax increases.

While other initiatives spend $1.2 million to qualify, we averaged $672,000 because we run a tight ship and I often risked my own money.

After two decades of effort, vehicle tabs and property tax increases are dramatically lower than they used to be (liberal judges vetoed those initiatives, but the publics overwhelming vote pushed politicians to adopt them anyway), government affirmative action is prohibited, the state auditor conducts performance audits of state and local governments, the King County Council was reduced from 13 politicians to nine, red-light ticketing cameras were banned in numerous cities and tax advisory votes allow voters to vote each November on tax increases imposed by the Legislature and inform voters which taxes were increased, their costs and how legislators voted on them.

These amazing accomplishments happened despite fierce opposition from liberals controlling the legislature, governors office, the judicial system and the media.

Because I led those efforts and constantly kicked the hornets nest of big government, politicians and the press have been gunning for me.

So in 2012, when a reporting complaint was filed against me by a disgruntled former vendor, I knew what was coming: a witch hunt. And because the government had unlimited resources and I didnt, I knew Id never survive it without assistance.

So I asked for help.

As my attorney (former supreme court justice) Richard Sanders said: Thousands of people voluntarily chose to help Mr. Eyman and his family there is nothing unlawful about that. People and businesses entered into voluntary business relationships with Mr. Eyman all of them were legal. Mr. Eyman never took money from anyone he wasnt a signer on anyones bank account except his own. In every instance, the money he received came from people who chose to voluntarily give it to him. And he consulted with professionals why wouldnt he? to ensure he was following state and federal laws.

Democrat Attorney General Bob Ferguson spent nearly $2 million of taxpayer money going after me, my family, friends and supporters. Thats more than all other reporting cases in the last eight years combined!

Generous people responded to my pleas for help, recognized this injustice and abuse of power and helped me fight back. Their checks were made payable to Tim Eyman Legal Defense Fund, Tim Eyman & Family and Tim Eyman Watchdog for Taxpayers LLC none were campaign donations. Their voluntary assistance, plus our own savings, went toward paying the lawyers and financially surviving this brutal eight-year onslaught.

A year ago, Sanders wrote: During the recent mediation conference, the AG made clear their priority: the lifetime ban. They dont care about the money, they want to shut you down. When you told the mediator it was blackmail, you were exactly right. This whole thing is about breaking you so you give up and agree to the ban. But you refused. Good for you! After hundreds of hours of examining the facts and researching the AGs case against you, its clear to me you didnt violate any laws. You were never the committees treasurer professional CPA Stan Long was your committees treasurer and he did not believe these transactions needed to be reported. He was right, the AG is wrong. Tim, in all my years on the court, Ive never seen such a miscarriage of justice. Seven years of investigation? Harassment of your wife? Frankly, Im astounded youre still functioning. Anyone else wouldve given up a long time ago. I admire your commitment.

As predicted, a former Gov. Chris Gregoire-appointed judge in Thurston Countys kangaroo court rubber stamped the AG, ignoring the law and the constitution. Go to tinyurl.com/FergusonHypocrisy to learn how the AGs bizarre claims are fundamentally flawed and reek of hypocrisy (How much has Democrat Bob Ferguson personally profited from politics? Over $2.8 million!).

Im committed to appealing these ridiculously unconstitutional restrictions on the First Amendment because if they get away with it with me, you could be next.

While it gets appealed, despite the risks, I will continue fighting for taxpayers because our efforts are needed now more than ever. Politicians have an insatiable tax appetite and are hell-bent to impose income taxes, carbon taxes and other taxes this session. Were committed to stopping them.

Fergusons fascist eight-year jihad has cost me everything I have. But Im not going to let him slow me down. Because like President Trump said: Theyre not after me, theyre after you, Im just in the way.

Tim Eyman is a longtime political activist from Yakima who graduated from Washington State University and now lives in Bellevue. He can be reached at 425-590-9363 or tim.eyman@gmail.com.

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Commentary: I'm committed to appealing these ridiculous restrictions on the First Amendment - The Reflector

Safety and first amendment rights.

That's at the top of the list for Minneapolis Mayor Jacob Frey going into the Derek Chauvin murder and manslaughter trial in the death of George Floyd.

Jury selection starts Monday, and double lines of chain-link fences, some topped with razor wire, surround the Hennepin County Government Center.

That's where the trial takes place.

"I know that the visual is jarring, and for some community members, a painful reminder of what has happened in our city," said Mayor Frey on the WCCO Morning News with John Hines on Friday morning.

"It is unfortunate, but I do believe that the precautions at this point are necessary," he said.

So far, the city has spent nearly $1 million on security measures, and National Guard troops are ready to assist local police, if necessary.

But the mayor said it will take more than that to keep things peaceful, no matter the rising tensions and ultimate verdict.

"The magnitude of the moment is going to call for all of us coming together," he said. "On a personal level, I hope that this marks a step forward utimately for Minneapolis. I hope that this marks a step forward ultimately for justice."

Mayor Frey said the trial will be a time of great tension and trauma in Minneapolis.

"Especially in the Black community," he said. "But we're prepared."

He said the city remains in constant contact with Black community leaders, in addition to the high-level security, growing police presence, and intelligence efforts to head off any planned actions.

"We want to make sure that we get through this with safety, and, of course, accounting for First Amendment rights."

The rest is here:
Mayor Frey tells WCCO radio that the city is ready for trial - 1033 Amp Radio

Clermont, FL.(ECWd) -

A "reporter" with a new company from Clermont, Florida has taken offense to an Illinois Township Trustee's [Benford] publication of a letter written in response to a letter received by DuPage Township. We covered both letters: the one threatening to sue the township (here) and Trustee Benford's attorney's response (here).

The "reporter" then posted an incoherent rambling accusing Benford of bypassing executive sessions, bypassing the township's attorney, opening up the township to the largest lawsuit its ever seen, violating security, and criminal action, among many other patently false and inaccurate statements, then she posted a comment in her Facebook group asking for Benford to "provide us with the authorization you have been given to represent the Township and speak on their behalf" - while obviously missing the language used in the response letter indicating it was from Benford and not from the township.

Next, she sent a Freedom of Information Act request to DuPage Township asking for "the authorization documents or emails that state Benford was given the right to represent the Township and speak on their behalf, and hire an attorney on their behalf, and any authorization to remove legal letters from the servers and [premises]to share unredacted with media" - while obviously forgetting no authorization nor permission is needed.

From reading the online ranting and subsequent FOIA request sent to DuPage Township, this "reporter" has apparently decided that a Black, Female, Township Trustee who is also a Candidate for Township Supervisor, is somehow violative of the law by hiring an attorney with her own money to respond to a letter from the former supervisor addressed to the current supervisor which referenced her, and by publishing that response letter on her Facebook page. She is also apparently offended that this Trustee may have given copies of both letters to the media and asks for proof of permission given for the Trustee to allegedly forward those letters to media.

The response given by Benford to Kurowski's FOIA request included the following (read it here):

We agree with Benford's response, especially in light of the months-long political campaign to discredit her, and now asking if she has permission to speak. What a ridiculous proposition - that a person must seek permission to speak freely.

This "reporter" allegedly "works" for a couple of newly established companies, with the principal business address of 3033 Santa Maria Avenue, Clermont, Florida, a business phone number of 630-300-8141, and a business email address (which ironically describes decisions she is making) of "[emailprotected]" along with "[emailprotected]." and several websites opened up since January 1, 2021- The aforementioned information was obtained by us through a subpoena pursuant to a Rule 224 Petition we filed in the Edgar County Circuit Court.

This company's filings with the State of Florida indicate three officers/directors: Bonnie Kurowski, Erik Phelps, and Eowyn Correl for its "not for profit" organization and only Bonnie Kurowski as the manager for its "for-profit" organization - neither of which had a tax ID number when registered in Florida. The aforementioned information is public record and can be obtained online through the State of Florida's business registration search.

Response to FOIA

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Florida Reporter thinks Trustee needs permission to speak; received Emancipation Proclamation and First Amendment in response to FOIA request -...

Rep. Jamie Raskin, D-Md., the lead House impeachment manager, speaks in the Senate on Wednesday. He argued that former President Donald Trump incited the Jan. 6 attack on the U.S. Capitol and that his words are not protected by the First Amendment. Bloomberg/Bloomberg via Getty Images hide caption

Rep. Jamie Raskin, D-Md., the lead House impeachment manager, speaks in the Senate on Wednesday. He argued that former President Donald Trump incited the Jan. 6 attack on the U.S. Capitol and that his words are not protected by the First Amendment.

Lead House impeachment manager Rep. Jamie Raskin, D-Md., opened the second day of impeachment proceedings by rejecting the defense's argument that former President Donald Trump's remarks at a rally prior to the Capitol attack are protected speech under the First Amendment.

Raskin said that Trump was not merely a private citizen walking down the street expressing his support for the overthrow of the federal government. The former constitutional law professor said if Trump were, his speech would be protected.

As president, however, Raskin argued, Trump had a sworn duty that set him apart from every other American to protect the Constitution.

"Look, if you're the president of the United States, you've chosen a side with your oath of office," Raskin said. "If you break it, we can impeach, convict, remove and disqualify you permanently from holding any office of honor, trust or profit in the United States."

Raskin likened what Trump did to a local fire chief who is paid to put out fires but instead orders a mob to descend on a crowded theater and set it ablaze.

And then when calls for help go to the fire department, Raskin continued, Trump "does nothing but sit back, encourage the mob to continue its rampage and watch the fire spread on TV."

Raskin noted that the conservative Federalist Society issued a memo before the start of the impeachment trial that said in part: "The First Amendment is no bar to the Senate convicting former President Trump and disqualifying him from holding future office."

Raskin added that not only are Trump's words not shielded by free speech protections, but what he did on the day of the Capitol attack was the act of "inciter in chief."

"When he incited insurrection on Jan. 6, he broke that oath [of office]. He violated that duty. And that's why we're here today. And that's why he has no credible constitutional defense," Raskin said.

Trump's legal team is expected to rely heavily on a First Amendment defense. Tuesday, defense attorney Bruce Castor asked the Senate, "This trial is about trading liberty for the security from the mob? Honestly, no. It can't be."

"We can't possibly be suggesting that we punish people for political speech in this country," Castor said.

As NPR's legal affairs correspondent Nina Totenberg reported on Tuesday, some legal scholars argue that the question is irrelevant to an impeachment trial.

"The First Amendment's protection of freedom of speech simply doesn't apply to impeachment," Peter Keisler, a former acting attorney general in George W. Bush's administration, says. "This isn't a criminal prosecution which seeks to render someone's speech illegal."

Trump is entitled to hold whatever opinions he wants and to express them, Keisler says. "But he is not entitled to assert a First Amendment defense against removal or disqualification from office ... because the Founders were in particular worried about ... the ways in which demagogues could become tyrants."

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Trump Impeachment Trial And The 1st Amendment Debate : Trump Impeachment Trial: Live Updates - NPR

At the impeachment trials outset, lawyers for former President Donald Trump filed a 78-page brief at arguing that he should not be convicted by the Senate. Trump is charged with inciting an insurrection through various statements that allegedly encouraged the January 6 putsch targeting the US Capitol.

The briefs primary arguments are constitutional. It claims that the Constitution does not permit an impeachment proceeding against a former official. And the brief also argues that Trump is immune from impeachment because the actions which led to that impeachment are protected by the First Amendment.

The first argument is, at least, not entirely ridiculous. While the majority view among scholars is that a former official may be impeached and convicted by the Senate, there are non-frivolous arguments that a former president is beyond the impeachment power.

But the claim that impeaching Trump violates the First Amendment is risible. There are at least three separate reasons why the First Amendment does not protect Trump.

The first is that impeachment is, essentially, a human resources matter. The Constitution provides that Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office. So, with Trump out of office, the only question in his second impeachment trial is whether he should be permanently disqualified from certain federal jobs.

As the Supreme Court explained in Connick v. Myers (1983), the States interests as an employer in regulating the speech of its employees differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. Though the governments power to discipline employees (or former employees) for aberrant speech is not absolute, it is broad enough to allow Trump to be disqualified from office.

The second reason Trump cannot invoke the First Amendment is that many of the statements he made, which allegedly incited the January 6 attack on the Capitol, are lies. Trump accused Democrats of trying to steal the election, and he falsely claimed that he overwhelmingly won an election that he lost by over 7 million votes.

As the Supreme Court held in New York Times v. Sullivan (1964), the First Amendment does not protect individuals from defamation suits if they make a false claim with knowledge that it was false or with reckless disregard of whether it was false or not. For the reasons explained below, a similar rule should apply to Trump.

Finally, some of Trumps statements such as a January 6 speech where he told his supporters to fight like hell and that youll never take back our country with weakness. You have to show strength and you have to be strong may constitute incitement to imminent illegal action, which is not protected by the Constitution.

Although the First Amendment provides some protection to government employees, those protections are much weaker than those afforded to private citizens, at least when the government seeks to fire or otherwise take a job action against an employee.

Imagine, for example, that a public school hires someone to teach algebra, but this teacher refuses to follow the curriculum and instead spends their class time lecturing their students about 16th-century Japanese art. The First Amendment protects a private citizens right to speak about Japanese art, but the school district could discipline or even fire this teacher for failing to do their job properly even though their only offense was to engage in speech that is normally protected by the Constitution.

Moreover, while the First Amendment provides a relatively robust shield against workplace discipline to rank-and-file government employees, the Constitution offers very little protection to senior officials in political jobs. As a private citizen, for example, Secretary of State Tony Blinken is allowed to criticize President Joe Bidens foreign policy. But as one of Bidens top lieutenants, Blinken may be fired immediately if he makes a disparaging remark about Bidens policies.

As the Supreme Court explained in Branti v. Finkel (1980), if an employees private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the States vital interest in maintaining governmental effectiveness and efficiency.

Thus, Trumps private political belief that he, and not the lawful winner of the 2020 presidential election, should be president must yield to the States vital interest in maintaining governmental effectiveness and efficiency.

Trumps lawyers, for what its worth, primarily rely on the Supreme Courts decision in Bond v. Floyd (1966), which held that the Georgia House of Representatives violated the First Amendment when it prevented state Representative-elect Julian Bond from taking his seat ostensibly because of statements Bond made criticizing the Vietnam War. (Bond, an important civil rights leader, was one of the first Black representatives elected in Georgia after the passage of the Voting Rights Act of 1965; its fairly likely that the real reason he was excluded had less to do with his opinion of the war than the color of his skin.)

The Bond decision is more than a half-century old, and since then weve seen a whole line of cases involving First Amendment protections for government employees, including the Branti case. So its not entirely clear that Bond remains good law. To the extent that Bond is still valid, however, Trumps lawyers argue that cases like Branti only apply to appointed political officials and that Bond provides much more robust protections to elected officials.

Yet even if we accept that elected officials enjoy greater First Amendment protections than political appointees, the Bond case does not help Trump escape impeachment.

In 1960, civil rights activists ran an advertisement in the New York Times alleging that Alabama police used brutal tactics to suppress protests. In response to this ad, an Alabama police official filed a defamation suit against the Times, pointing to minor factual errors in the advertisements text. An Alabama jury handed down a $500,000 verdict against the Times.

But the Supreme Court tossed out that verdict in New York Times v. Sullivan (1964), a seminal decision holding that the First Amendment provides strong protections against defamation lawsuits that threaten free speech. Yet, while these protections are quite robust, especially when a defamation suit involves statements about a public figure that regard a matter of public concern, they are not unlimited.

At the very least, someone can still successfully be sued for defamation if they make a false statement with knowledge that it was false or with reckless disregard of whether it was false or not, according to the New York Times decision.

Although New York Times was a case about defamation and not about the First Amendment rights of elected officials, the Court relied heavily on New York Times when it decided Bond. In explaining why Rep. Bonds rights were violated, the Court said that the central commitment of the First Amendment, as summarized in the opinion of the Court in New York Times Co. v. Sullivan is that debate on public issues should be uninhibited, robust, and wide-open.

Under Bond, the New York Times principle was extended to statements by a legislator.

Two years after Bond, the Court handed down its decision in Pickering v. Board of Education of Township High School District (1968), which established the modern framework governing First Amendment suits by government employees. Pickering involved a public school teacher, not an elected official, but it provides additional support for the view that government employees do not have a First Amendment right to lie.

In Pickering, the Court held that absent proof of false statements knowingly or recklessly made by him, a teachers exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.

New York Times, Bond, and Pickering, in other words, all suggest that a government employees First Amendment rights regardless of whether that employee is elected do not include a right to knowingly make false statements, or to make statements with reckless disregard as to whether they are true or not.

So when Trump riled up his supporters by falsely claiming that the 2020 election was stolen from him, he was not protected by the First Amendment.

In Brandenburg v. Ohio (1969), the Supreme Court held that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Thus, while speakers, including Trump, are protected even if they advocate illegal actions, this protection has limits. If such advocacy is made with the intent to incite imminent lawless action, and if such action is likely to result from a persons speech, then that speech is not protected by the First Amendment.

Brandenburg sets a high bar for incitement prosecutions. But Trumps statements immediately before the January 6 putsch were so egregious that they may overcome this high bar. In a speech that he gave right before his supporters attacked the Capitol, Trump told them that if you dont fight like hell, youre not going to have a country anymore, that they need to take back our country, and that they cant show weakness and have to be strong.

Writing in the Washington Post, Harvard law professor Einer Elhauge argues that these statements constitute constitutionally unprotected incitement, even under Brandenburg:

Although Trump tried to protect himself by stating that he was sure that the crowd would peacefully march to the Capitol, that does not alter the fact that he was inciting the crowd to forcibly stop Congress from counting the certified electoral votes once they got there.

Trump thus clearly incited lawless action (obstructing the operations of Congress is a crime) that was imminent (right after the speech, a short walk away). That he wanted to incite such lawless action is confirmed by reporting that for hours he watched the Capitol attack with pleasure and did not take any steps to stop it by calling out the National Guard or by urging his supporters to stand down.

Again, its far from clear that Trump could be prosecuted in a criminal court for his statements Brandenburg makes it extraordinarily difficult for prosecutors to win such cases. But thats not the issue in Trumps impeachment trial.

The issue in Trumps impeachment trial is whether, given the fact that the government has broad authority to make human resources decisions under the First Amendment, Congress may conclude that Trumps statements were so beyond the pale that he should be disqualified from holding high federal office in the future.

Setting aside these legal flaws in Trumps First Amendment argument, theres also a profound practical reason public officials should be subject to impeachment, even if theyve done nothing more than give an illiberal or anti-democratic speech.

Imagine that someday in the future, a new president is elected after campaigning on a fairly mainstream platform. Then, in the presidents inaugural address, they reveal that the entire campaign was a charade: I am a great admirer of Nazi Germany, the new president declares in their inaugural address, and I plan to use my presidency to build a Fourth Reich.

Should Congress really have to wait until this Nazi president takes some affirmative step to implement this agenda before they can be impeached and removed from office?

As George Mason University law professor Ilya Somin writes, the implication of Trumps argument that he cannot be impeached for his speech is that Congress could not impeach and remove a president who openly proclaimed his intention to turn the United States into a communist or fascist dictatorship, because speech advocating despotism is protected against criminal punishment by the First Amendment if uttered by a private citizen.

But Trump is wrong that he is protected by the First Amendment. The government has far more leeway when it makes personnel decisions than it does when it regulates speech by private citizens. And even if Trump had simply spoken as a private citizen, there is a strong argument that his conduct was so egregious that it could be prosecuted as incitement.

Read more here:
Trumps claim impeachment violates the 1st Amendment and Brandenburg v. Ohio, explained - Vox.com

Democrats took aim at the Trump legal teams expected First Amendment defense, saying it has no basis in the evidence.

Watch Raskins remarks in the player above.

Lead House Impeachment Manager Jamie Raskin argued in the Senate trial that there is a First Amendment defense against the impeachment charge is absurd.

Futher, Raskin said, The First Amendment does not create some superpower immunity from impeachment.

Thursdays session follows the previous days raw and visceral video of last months deadly insurrection.

Though most of the Senate jurors seem to have made up their minds, making Trumps acquittal likely, the never-before-seen audio and video released Wednesday is now a key exhibit in Trumps impeachment trial as lawmakers prosecuting the case argue Trump should be convicted of inciting the siege.

Trump lawyers are expected to will argue Friday that his words were protected by the Constitutions First Amendment and just a figure of speech.

Excerpt from:
WATCH: Trump not protected by First Amendment for inciting insurrection, Rep. Raskin says - PBS NewsHour

The response to my column about what to do with police officers who participated in the Trump rally on January 6 was immediate and intense. And whats clear so far is that the dozens of law enforcement agents who traveled to the nations capital that day to support or witness an insurrectionists cause will long be tagged by it. Some may get charged with a crime. Some may be fired. But even those who keep their jobs will face credibility questions for the rest of their professional lives. They will forever be the cops who traveled miles to gleefully participate in a potentially dangerous event based on a monstrous lie.

The gist ofmy February 1 pieceis that there is really only bad news and worse news for these cops. Either they were insurrectionists, in which case they have no right to wear a badge, or they were too foolish to heed all of the warnings about potential violence in Washington that day, in which case they really have no right to wear a badge. What actually happens to these officers, however, turns both on law and local politics or more precisely, the politics of local policing. It figures that it would be harder for a cop to come home from the Trump rally to a blue country than a red county, right? But well see.

The legal answers will come from the text of the First Amendment. Some cops who are fired are going to sue to get their jobs back by saying they were illegally retaliated against for exercising their free speech rights. They will say that even public employees government employees have certain First Amendment rights. They do! But those civil lawsuits will turn on whether the rights of those cops to attend Trumps rally outweigh the interests their police departments have in ensuring public confidence in the competence of officers, including the officers ability to easily distinguish uncontroverted evidence from baseless conspiracy theories.

Thats how the legal case will play out. Whats a little clearer now is what the politics of it will look like. Law enforcement agents who attended the rally and the ensuing riot will be fired, whether or not they are criminally charged. Those officers who attended the rally but left before the riot will likely keep their jobs unless their social media profiles from before the rally, or their comments after it, make it clear they are a discredit to their departments. But even those cops who attended the rally and left before the riot and dont have Facebook walls full of white supremacist junk arent easily going to be able to shake their link to the Capitol riot.

The two most interesting reactions to my piece dovetail together and are worth mentioning. One law enforcement source told me that police officials in some jurisdictions will be willing, if not eager, to fire or discipline officers who were at the rally but not involved in the riot if their participation that day was part of a broader pattern of support for racist causes or sedition. Another source a few actually wondered whether police officials would be scared to look too closely under such rocks given howextensivethe links seem to be between law officers and right-wing groups. I mean, thats the heart of the problem to begin with, isnt it?

We are seeing a form of this situationunfold alreadyin Franklin County, Kentucky, home to the state capital, Frankfort. Jeff Farmer, a sheriffs deputy, proudly attended the Trump rally and now has come home to controversy. Even before the insurrection and coup attempt in Washington, even before the protests last summer in Frankfort over police brutality, Farmers conduct as a cop had attracted the attention of local civil rights leaders and defense attorneys for what they consider misconduct, ranging from use of excessive force to discriminatory practices.

When word got out that Farmer had attended the Trump rally and it wasnt as though he felt he needed to hide the news Franklin County Sheriff Chris Quire was forced to launch an investigation that has roiled the county. On the one side are Farmers many supporters, on the force and in the community, who say hes a good cop who has done a great deal to apprehend drug dealers. On the other side are those who see in Farmers Trump-infused journey to Washington as further proof that his professional judgment, at a minimum, should be called into question. Cops have constitutional rights,remember, but there is no constitutional right to be a cop.

Nathan Goodrich, an attorney who runs the public defenders office in Franklin County, put it well last week in aninterviewwith Jon Schuppe of NBC News. Goodrich has clients whose lives have been directly impacted by Farmers work. The march was based on a lie stop the steal, the election was stolen, Goodrich said. So much of Deputy Farmers work as a detective is determining when people are telling the truth and lying to him. It raises questions about his ability to do his job as a detective when hes engaged in a rally in support of a belief that so many members of the community believe is utterly without support.

Farmers story so far suggests he is hewing to the same line weve seen expressed by cops in several other cases in which theyve been questioned about their roles in Washington on January 6. But Farmers story suggests more, too. During his trip, he documented his arrival with friends on Facebook, and after the siege wrote a post in which he called the rioters idiots and questioned whether they were really Trump supporters. Its that last part that ought to trouble the sheriff and the residents of the county. And if I were Goodrich and company, its that last part Id want to ask Farmer about under oath.

It was beyond a reasonable doubton the day of the riotthat most if not all of the rioters were Trump supporters. That was clear during the rally that preceded the riot, it was clear as the siege was unfolding and we all could see the harrowing images from inside the Capitol, and it was clear in the immediate aftermath of the attack, even before federal law enforcement officials started arresting and prosecuting right-wing extremists involved in the insurrection. For a cop not to see that, or to see it and pretend otherwise, goes to the very heart of what it ought to mean to be a cop: Seek the truth. Follow the evidence. Stay clear of the crap.

I hope that the sheriff is asking tough questions of Farmer in Franklin County. And I hope that Farmer is answering them candidly. The more we hear about the coordination that took place in advance of the riot, the more we hear about all the threats that preceded the rally, the more it becomes clear that no law enforcement agent should have been near that rally that day as a private citizen. Whether Farmer loses his job or not, and today I have no reason to believe that he will, its going to be virtually impossible for him to go back to his pre-riot days. His community will never see him the same way again. Maybe it was all worth it. I would want to know that, too, if I were a public defender.

In the same way that prosecutorskeep lists of police officerstheydont trust to testify, there will now be a new list of cops whose credibility may legitimately be questioned about January 6 if they are ever called as a witness in a future criminal case. Only this list wont be the secret purview of prosecutors and police union officials. It wont be the subject of countless years of litigation. One day very soon (if it hasnt already happened), there will be a crowdsourced, publicly available database containing the names of every law enforcement agent associated in any way with the Trump rally or deadly riot that followed.

That will be a great day. Every cop who believes today that Trump won the election, or who believed it on January 6, should have to answer for that belief all the rest of their days in uniform. They should have to answer it in courtrooms under oath in front of juries. And in conference rooms during sworn depositions. They should have to answer it during public press conferences. It should cast a pall on everything they touch in their professional lives. We talk a lot about police accountability and about how we are going to root conspiracy theories and white supremacy out of law enforcement. Heres one way to begin doing that.

The views expressed are the authors own and not necessarily those of the Brennan Center.

Read more here:
The Insurrection, Police Accountability, and the First Amendment - brennancenter.org