Category Archives: First Amendment

According to the logic of a bill currently under consideration in the Missouri House, a churchs religious freedom rights should be overruled since some people may want to show up with a gun. Rep. Ben Baker (R-Newton) argued during a House General Laws Committee hearing Monday (Feb. 8) that a persons natural right to a gun should supersede a religious communitys right to adopt and communicate its beliefs. As a Baptist minister, I find this bill unnecessary, unconstitutional, and dangerous.

Missouri law currently automatically bans concealed weapons from houses of worship unless an individual receives the consent of the minister or person or persons representing the religious organization that exercises control over the place of religious worship. This makes sense. A religious community should be able to define for itself if they desire for individuals to bring guns into their holy place.

But Bakers HB 359 would switch the default position so that individuals with a concealed carry endorsement or permit could automatically bring a firearm into a house of worship unless that religious group posted significant signs at every entry. A church, synagogue, mosque, or other house of worship would not be able to determine its own policy regarding concealed guns without either accepting weapons or posting government-mandated signs on their sacred space.

The Second Amendment should not trump the First Amendment. Some groups hold deep religious convictions that lead them to oppose violence and weapons of any kind. Thus, Missouri legislators should reject a bill that targets those sincerely-held religious beliefs.

Oddly, Bakers bill only attempts to change the status of houses of worship, meaning many other locations would remain places where one cannot bring a concealed weapon without proper consent like a liquor store or a riverboat gambling operation or an amusement park. So, Bakers bill acknowledges by default that limitations on concealed carry do and should exist.

If passed, this bill would give liquor stores, gambling boat operations, and amusement parks more rights than churches to decide about guns on their premises even though houses of worship are protected by the First Amendment more than those entertainment businesses. This targeting of religious communities is wrong.

Theres not even a reason for Bakers bill because people can already bring their concealed weapons into churches. Baker admitted during testimony that he does since his pastor allows it. A member of the committee even said he used to preach from a pulpit with a concealed gun strapped on. If a religious community wishes to allow concealed weapons, they already have that right. And if a house of worship doesnt want weapons in their building, someone who disagrees with that decision is free to worship elsewhere.

The provision in Bakers scheme of allowing a house of worship to ban guns by posting signs actually creates even more problems. Controlling the welcome message that congregations would have to post in prominent locations invites constitutional challenges. In fact, then-St. Louis Catholic Archbishop Robert J. Carlson threatened to sue if a similar bill passed in 2018.

Pastors, rabbis, and religious leaders should not be compelled by the government to place signage in our sacred places prohibiting activity we may not want to allow on our own private property, he said at a press conference with Jewish, Baptist, Episcopalian, Lutheran, Methodist, and other religious leaders.

Despite the overwhelming opposition from faith communities across the state, this bad bill keeps popping back up. Among the 40 people who submitted official testimony against Bakers bill for Mondays hearing were Baptist, Episcopalian, Methodist, and Presbyterian ministers; a Jewish rabbi; a representative from the Missouri Catholic Conference; and several others who identified themselves as a member of a religious congregation. And Ive heard from pastors across the state who find this bill an offensive assault on their rights.

But Baker couldnt name a single denominational group in the state supporting his measure. His faith in guns should not veto the clear public witness of numerous faith leaders. Bakers remedy is clearly worse than the disease that isnt even an ailment.

We have enough real problems for lawmakers to tackle this session without them trying to push guns into houses of worship. So, I pray they will defeat this dangerous bill.

Rev. Brian Kaylor is editor of Word&Way and associate director of Churchnet (a statewide Baptist network of churches).

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Opinion: Guns shouldn't trump the First Amendment - The Missouri Times

By Noah Feldman / Bloomberg Opinion

The extended trial brief filed by Donald Trumps lawyers advances three defenses: that Trump did not incite the Jan. 6 attack on the Capitol; that the Senate cant try a president who is no longer in office; and that the First Amendment protects Trump from being impeached for words that, they say, dont meet the requirements for criminal incitement conviction laid down by the Supreme Court.

The factual defense is highly unconvincing, as anyone who watched Trumps speech on Jan. 6 and saw the attack can attest.

The argument that the Senate lacks jurisdiction over a president who is out of office is disproven by history and Senate precedent.

The free speech argument is also wrong in a basic sense: The First Amendment prohibits Congress from making any law abridging freedom of speech. But this doesnt apply in impeachments any more than the Sixth Amendment right to a jury trial would apply to the Senate impeachment trial.

Yet the First Amendment defense requires deeper engagement than the other two, if only because it is less absurd. If it did apply to impeachments, the Supreme Courts incitement jurisprudence contained in the famous 1969 case of Brandenburg v. Ohio probably would have protected Trumps speech.

The major component of Trumps argument is that the First Amendment applies to elected officials. As the lawyers put it only a little ungrammatically, the fatal flaw of the Houses arguments is that it seeks to meet out governmental punishments impeachments based on political speech that falls squarely within broad protections of the First Amendment.

To support their argument, Trumps lawyers cite Wood v. Georgia and Bond v. Floyd. Both are important Supreme Court cases, but neither proves that the First Amendment should apply to impeachment.

The 1962 Wood case arose when a local Georgia judge impaneled a grand jury and charged it to investigate supposedly suspicious block voting by African-American citizens. (Think of it as a precursor to todays false allegations of election scams, but in the context of the civil rights movement.)

While the grand jury was sitting, the local sheriff denounced the whole charade, telling the press that Whatever the Judges intention, the action will be considered one of the most deplorable examples of race agitation to come out of Middle Georgia in recent years . This action appears either as a crude attempt at judicial intimidation of negro voters and leaders or, at best, as agitation for a negro vote issue in local politics. The judge responded by holding the sheriff in contempt of court.

In an opinion by Chief Justice Earl Warren (not Justice William Brennan, as Trumps lawyers say), the court held that the contempt order violated the sheriffs free speech rights. The statement hadnt interfered with the sheriffs performance of his duties, the court explained, and added, The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.

This decision was about a judicial act the contempt order that would have imprisoned the sheriff. It had nothing to do with impeachment. It certainly shows that public officials possess First Amendment rights. Trump does, too. But that means only that he cant be criminally prosecuted for protected speech, not that he cant be impeached for inciting the Capitol attack.

The Bond case, in 1966, involved an attempt by the Georgia legislature to refuse to seat the civil rights activist Julian Bond when he was elected to that body. The legislature claimed that, because Bond opposed the Vietnam War and the draft, he could not have sincerely taken his oath to support the Constitution and laws of the United States. In another opinion by Chief Justice Warren (also misidentified by Trumps lawyers as Justice Brennan), the court explained that free speech applies not only to the citizen-critic but also to an elected legislator.

The ruling that the Georgia legislature could not keep Bond from taking office does not suggest that the First Amendment prohibits impeachment for Trumps incitement. The Georgia legislature wasnt impeaching Bond. It was making up a reason to exclude him from serving in the first place; conduct outside the bounds of its authority.

Apart from the moral outrageousness of comparing Donald Trump to Julian Bond, the citation seems meant to create a supposedly liberal argument for applying the First Amendment to Trump. (Maybe thats also why Trumps lawyers wanted to invoke Justice Brennan, even though he didnt write either of the opinions.)

That effort is unavailing, or should be. A robust commitment to free speech doesnt require protecting from impeachment a president who uses words in an attempt to destroy the democratic process.

Had Trumps lawyers been more forthright, they might have argued that, although the letter of the Constitution allows Trump to be impeached, the Senate should apply the spirit of the First Amendment to the case, and therefore take into account the Brandenburg definition of incitement. That argument would at least have been constitutionally respectable.

Even then, the House managers would have a good answer: that Trump violated the spirit of the Brandenburg rule by encouraging the attack on the Capitol. The former president probably couldnt be punished criminally for what he said on Jan. 6. But for the high crime of trying to break democracy, he can and should be barred from running for office again.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast Deep Background. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include The Three Lives of James Madison: Genius, Partisan, President.

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Comment: Trump's lawyers have it wrong on First Amendment, too | HeraldNet.com - The Daily Herald

Heres what you need to know:Video

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Like every other politically motivated witch hunt the left has engaged in over the past four years, this impeachment is completely divorced from the facts, the evidence and the interests of the American people. To claim that the president in any way wished, desired or encouraged lawless or violent behavior is a preposterous and monstrous lie. A small group who came to engage in violent and menacing behavior hijacked the event for their own purposes. This sham impeachment also poses a serious threat to freedom of speech for political leaders of both parties at every level of government. The Senate should be extremely careful about the president, the precedent, this case will set. We heard a lot this week about fight like hell, but they cut off the video before they showed you the presidents optimistic, patriotic words that followed immediately after. Fight like hell, and if you dont fight like hell, youre not going to have a country anymore. Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children and for our beloved country, and I say this despite all thats happened, the best is yet to come. This case, unfortunately, is about political hatred. It has become very clear that the House Democrats hate Donald Trump. This type of political hatred has no place in our political institutions, and certainly no place in the law. This hatred has led the House managers to manipulate and selectively edit Mr. Trumps speech to make it falsely appear that he sought to incite the crowd to violently attack the Capitol. Suddenly, the word fight is off limits? Spare us the hypocrisy and false indignation. Its a term used over and over and over again by politicians on both sides of the aisle. And of course, the Democrat House managers know that the word fight has been used figuratively in political speech forever. But dont take it from me. Its best to listen to them. We are in a fight. We are in a fight. Democrats are fighting as hard as we can. Democrats are standing up to fight. We know how to fight. We like a good fight. Democrats are going to fight like hell. We fight like hell. So why are we here? Politics. Their goal is to eliminate a political opponent. To substitute their judgment for the will of the voters. We will not take most of our time today, us of the defense, in the hopes that you will take back these hours and use them to get delivery of Covid relief to the American people.

Lawyers for Donald J. Trump delivered an incendiary but brief defense of the former president on Friday, calling the Houses charge that he incited an insurrection at the Capitol a preposterous and monstrous lie as they falsely equated his conduct to Democrats own combative rhetoric.

Confident they have enough votes from Republicans to acquit Mr. Trump, the lawyers used only about three of their 16 allotted hours. Their speed allowed senators to complete a period of questioning the prosecution and defense Friday evening and cleared the way for closing arguments and a final verdict, likely on Saturday.

Earlier, the defense team had channeled the former presidents own combative style and embrace of falsehoods to claim, contrary to facts, that Mr. Trump never glorified violence during his presidency and that he consistently called for peace as the rampage at the Capitol unfolded. Showing video clips of Democrats urging their supporters to fight and Mr. Trump venerating law and order, they sought to rewrite not just the narrative of his campaign to overturn the election but that of his entire presidency.

This trial is about far more than President Trump, said Bruce L. Castor Jr., one of the lawyers, as he closed the defense. It is about silencing the speech the majority does not agree with. It is about canceling 75 million Trump voters and criminalizing political viewpoints.

The defenses presentation unfolded after nine House prosecutors spent two days laying out a meticulous case against the former president dramatized with never-before-seen video of the Jan. 6 riot portraying the rampage as the direct result of Mr. Trumps monthslong campaign to overturn the election. Desperate to cling to power, the Democrats argued, Mr. Trump goaded his followers into joining his effort and would do so again, they said, if the Senate failed to convict him and bar him from holding office in the future.

Among the lawyers core arguments were that the Senate lacks jurisdiction to even try a former president now out of office, that Mr. Trumps conduct was protected by the First Amendment and that it came nowhere near the legal definition for incitement.

But standing before a jury of 100 senators, their case was as political in nature as it was legal. Using a favorite tactic of Mr. Trumps, his lawyers also sought to defend his behavior by citing that of others, arguing that he could no more be held responsible for the Capitol assault than Democrats could for the violence that erupted at some racial justice protests last summer.

They also sought to selectively poke holes in Democrats case. Michael van der Veen, one of the lawyers, insisted on Friday that Mr. Trump had only ever been interested in election security reforms, like voter ID laws an assertion that directly contradicted months of public and private actions by Mr. Trump. He said the president intended for the Jan. 6 rally he hosted before the attack to be peaceful, but that it had been hijacked by extremists, including from the far left another claim disproved even by Republicans.

The reality is Mr. Trump was not in any way shape or form instructing these people to fight using physical violence, Mr. van der Veen said. What he was instructing them to do was challenge their opponents in primary elections, to push for sweeping election reforms, to hold big tech responsible all customary and legal ways to petition your government for redress of grievances.

Mr. Castor also pointed to tweets by Mr. Trump while the attack was underway telling his supporters to stay peaceful and support our Capitol Police. But he did not discuss Mr. Trumps actions during the hours when the Capitol was under attack in which managers said he reveled in his success and delayed sending in reinforcements.

We know that the president would never have wanted such a riot to occur, because his longstanding hatred for violent protesters and his love for law and order is on display, worn on his sleeve, every single day that he served in the White House, he said.

Later, during the question and answer session, Mr. van der Veen said Mr. Trump had not been aware that his vice president, Mike Pence, had been in danger, even though a senator he called during the attack told him Mr. Pence was being evacuated from the chamber.

Maggie Haberman contributed reporting.

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If we do not convict former President Trump, what message will we be sending to future presidents and Congresses? The consequences of his conduct were devastating on every level. Police officers were left overwhelmed, unprotected; Congress had to be evacuated; our staff barricaded in this building, calling their families to say goodbye. And the world watched us. And the world is still watching us to see what we will do this day. And will know what we did this day 100 years from now. Is it not true that under this new precedent, a future House facing partisan pressure to lock her up could impeach a former secretary of state and a future Senate be forced to put her on trial and potentially disqualify from any future office? In this case, we have a president who committed his crimes against the republic while he was in office. He was impeached by the House of Representatives while he was in office. Mr. Raskin cant tell you on what grounds you acquit. If you believe, even though there was a vote, that theres jurisdiction, if you believe jurisdiction is unconstitutional, you can still believe that. If you believe that the House did not give appropriate due process in this, that can be your reason to acquit. It is clear that President Trumps plot to undermine the 2020 election was built on lies and conspiracy theories. How did this plot to unconstitutionally keep President Trump in power lead to the radicalization of so many of President Trumps followers and the resulting attack on the Capitol? What our commander in chief did was the polar opposite of what were supposed to do. We let the people decide the elections. Except President Trump. He directed all of that rage that he had incited to January 6th. Are the prosecutors right when they claim that Trump was telling a big lie? Or in your judgment, did Trump actually win the election? Who asked that? [Sen. Bernie Sanders] I did. My judgment is irrelevant in this proceeding. It absolutely is. Whats supposed to happen here is the article of impeachment is supposed to be [Sen. Patrick Leahy] The Senate will be in order. Whats relevant in this impeachment article is: Were Mr. Trumps words inciteful to the point of violence and riot? Thats the charge. Thats the question. And the answer is no. If the Senates power to disqualify is not derivative of the power to remove a convicted president from office, could the Senate disqualify a sitting president but not remove him or her? Mr. Castro attributed a statement, the time before last that he was up here, that Donald Trump had told his people to fight to the death. Im not from here Im not like you guys I was being very polite and giving him an opportunity to correct the record. And I thought thats exactly what he would do. But instead, what he did is he came up and illustrated the problem with the presentation of the House case. Its been smoke and mirrors, and worse, its been dishonest.

Senators on Friday afternoon opened their first and last window in the trial to directly question the prosecution and defense. But as they submitted questions in writing one by one, most members of the jury appeared more interested in scoring political points than breaking new ground.

Does a politician raising bail for rioters encourage more rioting? read one early question from Senators Lindsey Graham of South Carolina, Ted Cruz of Texas and two other Republicans. It was an apparent reference to Democrats who supported bail funds for people arrested while protesting racial violence this summer.

Bruce L. Castor Jr., one of former President Donald J. Trumps lawyers, gave a one word answer: Yes.

Senator Bernie Sanders, independent of Vermont, asked Mr. Trumps lawyers whether the former presidents big lie was correct when he insisted over and over again that he had won the election. If it was an attempt to force his defense to contradict their client, it did not work.

Who asked that? responded Michael van der Veen, another lawyer for the former president, looking for Mr. Sanders. My judgment? My judgments is irrelevant in this proceeding.

As time ticked by, the former presidents lawyers and the House managers began sniping at each other, too. Mr. van der Veen complained the trial was the most miserable experience Ive had down here in Washington, D.C. and accused Representative Jamie Raskin, Democrat of Maryland and the lead manager, of doctoring evidence.

Mr. Raskin was not pleased. Counsel said before, This has been my worst experience in Washington, he said. For that, I say were sorry, but man you should have been here on Jan. 6.

A short time later, Senator Patrick J. Leahy of Vermont, who was presiding over the trial, gently warned that all parties in this chamber must refrain from using language that is not conducive to civil discourse.

The exception came from a small group of Republican senators openly contemplating conviction. Senators Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah and Bill Cassidy of Louisiana all seemed interested in what Mr. Trump knew about the unfolding riot, when he knew it and what he did about it.

Mr. van der Veen said he could not precisely say when Mr. Trump learned about the attack, but he blamed it on the Democratic managers for building their impeachment on hearsay on top of hearsay on top of hearsay rather than a thorough investigation.

We have a tweet at 2:38 p.m., so it was certainly sometime before then, he said.

When Mr. Romney and Ms. Collins pressed the lawyers on Mr. Trumps specific knowledge of the threat to his vice president, Mike Pence, the answer was clearer, but it appeared to contradict the word of Senator Tommy Tuberville, Republican of Alabama, who told reporters this week he informed the president that the vice president was being evacuated from the Senate chamber during a contemporaneous phone call.

The answer is no, said Mr. van der Veen. At no point was the president informed that the vice president was in any danger.

Democrats scoffed, and argued that any weaknesses in their evidentiary record was the fault of Mr. Trump, who refused an invitation to testify.

Rather than yelling at us and screaming about how we didnt have time to get all the facts about what your client did, bring your client up here and have him testify under oath, Mr. Raskin said.

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The House managers spoke about rhetoric, about a constant drumbeat of heated language. Well as Im sure everyone watching expected, we need to show you some of their own words. I just dont know why there arent uprisings all over the country. Maybe there will be. There needs to be unrest in the streets for as long as there is unrest in our lives. Weve got to be ready to throw a punch. We have to be able to throw a punch. Donald Trump, I think you need to go back and punch him in the face. Please get up in the face of some Congresspeople. People will do what they do. I want to tell you Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay a price. If you had to be stuck in an elevator with either President Trump, Mike Pence or Jeff Sessions, who would it be? Does one of us have to come out alive. Im just going to keep the fight up. What we have to do right now is fight as hard as we can. We have to rise up and fight back. And so, were going to fight. And were going to continue to fight. I am going to be fighting fighting like hell. Keep fighting, fighting, fighting we kept fighting, and we did. So were going to keep fighting. Never, never, never give up this fight. Im a citizen fighting for it Means not only fighting As a leader who fought for progressive change As a lawyer who fought for people his whole life As well as other fights, and Im proud to have Tim in this fight.

Former President Donald J. Trumps defense team offered their own video presentation on Friday a montage of remarks by Democrats urging supporters to fight a rhetorical drumbeat aimed at countering the impact of the footage of the real fight at the Capitol, images of blood and broken glass, presented by the prosecution on Wednesday.

The strategy by Mr. Trumps lawyers was to prove that Mr. Trumps call for his followers to fight like hell in a speech shortly before members of the crowd stormed Congress on Jan. 6 was no different than anti-Trump remarks made by Speaker Nancy Pelosi of California, Representative Maxine Waters of California, Senator Elizabeth Warren of Massachusetts and other members of Congress.

To make their point, the team played a lengthy mash-up of bellicose statements from Democrats including President Bidens claim on the campaign trail that he would have beaten the hell out of Mr. Trump in high school.

The presentation, featuring quick-cut editing and the type of ominous music often heard in negative campaign ads, a sharp contrast to the raw footage, sometimes silent, of the attack that was compiled by the House impeachment managers from security cameras and cellphone video, and accompanied by a minute-by-minute timeline.

The defense teams montage concluded with images of Democrats praising the protests against police violence in cities across the United States last summer, juxtaposed with video of rioting, even though every senior Democrat denounced violence.

I showed you the video because in this political forum, all robust speech should be protected, said Michael van der Veen, one of the presidents lawyers.

When you see speech such as this, you have to apply the First Amendment evenly. Blindly, he said, adding, She is blind, lady justice.

It reflected the argument being promoted by Trump defenders on conservative media outlets like Fox News, and was part of an effort to offer a more defiant defense pushed by the former president, who was dissatisfied with the earlier efforts of his team.

It is not clear that the approach had its desired effect, however.

During the presentation, senators in both parties were overheard chatting and laughing by observers in the chamber. Democrats emerged enraged at what they saw as an argument built upon false equivalence.

Show me anytime that the result was our supporters pulled someone out of the crowd, beat the living crap out of them and then we said: Thats great. Good for you. Youre a patriot, Sen. Chris Coons of Delaware said after watching the video.

Yet the approach might have succeeded in giving Republicans caught between their disdain for Mr. Trumps behavior and fear of his hold over the party enough cover to justify an acquittal.

The Twitter/CNN/MSNBC bubble will mock & dismiss this defense, but it is going to work with Republican voters and it will give much needed cover and justification to Republican Senators to acquit, said Joe Walsh, a former Republican congressman and frequent Trump critic, on Twitter during the defenses arguments.

As the Capitol was being infiltrated by a mob last month, what did President Donald J. Trump know about Vice President Mike Pences whereabouts and when did he know it?

That was a question multiple senators were intent on learning more about Friday evening, during a period in the impeachment trial in which senators questioned the House impeachment managers and Mr. Trumps lawyers.

At issue was not only when Mr. Trump took any steps to help end the riot, but also a tweet he posted that day at 2:24 p.m. as rioters had breached the Capitol and Mr. Pence was being rushed out of the Senate chamber.

The vice president didnt have the courage to do what should have been done to protect our Country and our Constitution, Mr. Trump tweeted.

Senator Mitt Romney asked early in the question-and-answer session: When President Trump sent the disparaging tweet at 2:24 p.m. regarding Vice President Pence, was he aware that Vice President Pence had been removed from the Senate by the Secret Service for his safety?

No, Michael van der Veen, one of Mr. Trumps lawyers, said bluntly. At no point, he continued, was the president informed that the vice president was in any danger.

The Democratic House managers, who are serving as prosecutors in the trial, argued that Mr. Trump had to know what was going on at the time of his tweet. The whole world knew it, all of us knew it, said Representative Joaquin Castro, Democrat of Texas. Live television had by this point shown that the insurgents were already inside the building, and that they had weapons and that the police were outnumbered.

The answer also appeared to contradict statements from Senator Tommy Tuberville, Republican of Alabama. Mr. Tuberville told reporters this week about a cellphone call he had with Mr. Trump as the Senate was being evacuated. Well, I mean, I dont know if youve ever talked to President Trump, he said. You dont get many words in, but, uh, he didnt get a chance to say a whole lot because I said, Mr. President, they just took the vice president out, Ive got to go.

The timestamp on Mr. Trumps tweet about Mr. Pence lacking courage shows it was sent about 10 minutes after Mr. Pence was evacuated from the chamber.

The Democratic House managers noted Mr. Tubervilles remarks in their answer to Mr. Romneys question. Later in the evening, Senator Bill Cassidy, Republican of Louisiana, brought them up again, asking if Mr. Tubervilles account shows Mr. Trump was tolerant of the intimidation of Vice President Pence.

Both sides largely reiterated their arguments.

But Mr. Trumps lawyer also argued that whatever Mr. Trump knew about Mr. Pences whereabouts was irrelevant to the charge against him, incitement of insurrection. Other legal analysts might be dubious of that argument. If Mr. Trump was aware of his vice presidents imminent danger, it would conceivably bear on Mr. Trumps intentions.

On the eve of a verdict in Donald J. Trumps Senate trial, one of the 10 Republicans who voted to impeach him confirmed on Friday night that the top House Republican, Representative Kevin McCarthy, told her that the former president had sided with the mob during a phone call as the Jan. 6 Capitol attack unfolded.

In a statement on Friday night, Representative Jaime Herrera Beutler, Republican of Washington, recounted a phone call relayed to her by Mr. McCarthy of California, the minority leader, in which Mr. Trump was said to have sided with the rioters, telling the top House Republican that members of the mob who had stormed the Capitol were more upset about the election than you are.

She pleaded with witnesses to step forward and share what they knew about Mr. Trumps actions and statements as the attack was underway.

To the patriots who were standing next to the former president as these conversations were happening, or even to the former vice president: if you have something to add here, now would be the time, Ms. Herrera Beutler said in the statement.

Her account of the call between Mr. McCarthy and Mr. Trump, first reported by CNN, addressed a crucial question in the impeachment trial: what Mr. Trump was doing and saying privately while the Capitol was being overrun.

Ms. Herrera Beutler said that Mr. McCarthy had relayed details of his phone call with Mr. Trump to her. She has been speaking publicly about it for weeks, including during a virtual town hall on Monday with constituents, and she recounted their conversation again in the statement on Friday.

A spokesman for Mr. McCarthy did not reply to a request for comment. Spokespeople for the House impeachment managers did not immediately reply to a request for comment.

The Republican leaders response to Mr. Trump in the weeks since the attack on the Capitol has fluctuated. On the day of the Houses impeachment vote, he said Mr. Trump bore some responsibility for the attack because he had not denounced the mob, but he has since backtracked and sought to repair his relationship with the former president.

By Ms. Herrera Beutlers account, Mr. McCarthy called Mr. Trump frantically on Jan. 6 as the Capitol was being besieged by thousands of pro-Trump supporters trying to stop Congress from counting Electoral College votes that would confirm his loss.

She said Mr. McCarthy asked him to publicly and forcefully call off the riot.

Mr. Trump replied by saying that antifa, not his supporters, was responsible. When Mr. McCarthy said that was not true, the former president was curt.

Well, Kevin, I guess these people are more upset about the election than you are, he said, according Ms. Herrera Beutlers account of what Mr. McCarthy told her.

Hours after the assault began, Mr. Trump tweeted a video in which he asked those ransacking the Capitol to leave. Go home. We love you. Youre very special, he said.

A core argument of Mr. Trumps defense, made by Michael van der Veen, one of his lawyers, is that Mr. Trump cannot be convicted of inciting an insurrection because everything he said was protected by his rights to free speech under the Constitution.

Mr. van der Veen who is a personal injury lawyer, not a civil liberties lawyer dismissed a letter signed last week by 144 constitutional scholars and First Amendment lawyers from across the political spectrum, who called a free speech defense of Mr. Trump legally frivolous and not grounds for dismissing the charge against him.

Nonetheless, Mr. van der Veen argued, Mr. Trumps speech deserves full protection under the First Amendment. He cited Supreme Court cases holding that elected officials can engage in political speech.

Adam Liptak, who covers the Supreme Court for The New York Times, addressed the argument in a live analysis.

Its true, of course, that elected officials have First Amendment rights, Mr. Liptak wrote. Its also true that government officials may be fired for making statements that would otherwise be protected political speech. An impeachment trial may present that second sort of question.

Mr. Liptak quoted from the House impeachment managers brief that addressed the First Amendment argument advanced by Mr. Trumps lawyers: Under President Trumps view of the First Amendment, even a sitting President who strenuously urged States to secede from the Union and rebel against the federal government would be immune from impeachment.

FACT CHECK

Donald J. Trumps lawyers, mounting their defense of the former president on Friday, made a number of inaccurate or misleading claims about the Jan. 6 siege of the Capitol, Mr. Trumps remarks and the impeachment process itself. Here are some of them.

Michael van der Veen, one of the lawyers, misleadingly said that Mr. Trump did not express a desire that the joint session be prevented from conducting its business but rather the entire premise of his remarks was that the democratic process would and should play out according to the letter of the law. But Mr. Trump repeatedly urged former Vice President Mike Pence to send it back to the States to recertify and noted that he was challenging the certification of the election.

Far from promoting insurrection of the United States, the presidents remarks explicitly encouraged those in attendance to exercise their rights peacefully and patriotically, Mr. van der Veen said. Mr. Trump used the phrase peacefully and patriotically once in his speech, compared to 20 uses of the word fight.

Mr. van der Veen also claimed that one of the first people arrested in connection with the riots at the Capitol was the leader of antifa. That was a hyperbolic reference to John E. Sullivan, a Utah man who was charged on Jan. 15 for violent entry and disorderly conduct. Mr. Sullivan, an activist, has said he was there to film the siege. He has referred to antifa a loose collective of antifascist activists that has no leader on social media, but he has repeatedly denied being a member of the movement, though he shares its beliefs.

The Federal Bureau of Investigation has said there is no evidence that supporters of the antifa movement had participated in the Jan. 6 siege.

Mr. van der Veen equated the Jan. 6 siege to the protests at Lafayette Square in front of the White House last summer, and presented a false timeline, claiming that violent rioters repeatedly attacked Secret Service officers and at one point, pierced a security wall, culminating in the clearing of Lafayette Square.

There was no breach. Law enforcement officials began clearing Lafayette Square after 6 p.m. on June 1, to allow Mr. Trump to pose, while holding a Bible, in front of a church near the square. Additional security fencing was installed after those events, according to local news reports and the National Park Service.

Similarly, Mr. van der Veen compared Mr. Trumps complaints and political language about the 2020 election with concerns about the integrity of the 2016 election, arguing that the entire Democratic Party and national news media spent the last four years repeating without any evidence that the 2016 election had been hacked. But American intelligence agencies concluded years ago that Russia tried to interfere in the 2016 election. The Republican-led Senate agreed last year that Russia disrupted that election to help Mr. Trump.

David Schoen, another lawyer, misleadingly claimed that the House held on to the article of impeachment until Democrats had secured control over the Senate and Representative Clyburn made clear they had considered holding the articles for over 100 days to provide President Biden with a clear pathway to implement his agenda.

In fact, Democrats had considered delivering the article to the Senate earlier, almost immediately after it was approved, but Senator Mitch McConnell, then the majority leader, precluded the possibility of an immediate trial in a letter informing Republican lawmakers that the Senate was in recess and may conduct no business until January 19. Mr. Clyburn made his suggestion of withholding the article even longer, after Mr. McConnell had sent his letter.

Mr. Schoen also accused Democrats of presenting a manufactured graphic, referring to a New York Times photo of Representative Jamie Raskin, Democrat of Maryland and the lead impeachment manager, looking at a computer screen. The screen featured an image of a tweet Mr. Trump shared stamped with an erroneous date. Left unsaid was that the image was recreated because Mr. Trump has been banned from Twitter and House managers could not simply show the retweet itself. Mr. Schoen then acknowledged that House managers fixed the incorrect date before presenting the graphic during the trial.

Mr. Schoen complained once again that the impeachment did not afford Mr. Trump due process a point Mr. Trumps lawyers and supporters had previously argued during his first impeachment, and a point law scholars had dismissed.

There are no enforceable rights to due process in a House inquiry, and while those rights exist in the Senate trial, they are limited, said Frank O. Bowman III, a law professor at the University of Missouri and an expert on impeachment. Former President Andrew Johnson, for example, was impeached by the House before it even drew up the articles.

Fani T. Willis, the top prosecutor in Fulton County, Ga., is targeting former President Donald J. Trump and a range of his allies in her newly announced investigation into election interference.

Ms. Willis and her office have indicated that the investigation, which she revealed this week, will include Senator Lindsey Grahams November phone call to Brad Raffensperger, Georgias secretary of state, about mail-in ballots; the abrupt removal last month of Byung J. Pak, the U.S. attorney for the Northern District of Georgia, who earned Mr. Trumps enmity for not advancing his debunked assertions about election fraud; and the false claims that Rudolph W. Giuliani, the presidents personal lawyer, made before state legislative committees.

An investigation is like an onion, Ms. Willis told The New York Times in an interview. You never know. You pull something back, and then you find something else.

She added, Anything that is relevant to attempts to interfere with the Georgia election will be subject to review.

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Highlights of Day 4 of the Trump Impeachment Trial - The New York Times

These efforts to justify Trumps deplatforming by reference to social-media companies internal speech policiesand in particular, Facebooks willingness to have that decision reviewed by an independent, quasi-judicial Oversight Boardsuggest that the project of platform self-regulation is gaining traction. The important question facing internet users in the United States and around the world is whether the platforms self-regulation will be sufficient to protect the important democratic and expressive freedoms that the American free-speech tradition cares about.

There are reasons to be skeptical that self-regulation will be enough. Perhaps the primary reason is the fact that, notwithstanding their presumably sincere commitment to freedom of speech, social-media companies are, in the end, for-profit entities that offer a forum for speech in order to make money. Will they protect expressive freedom even when it conflicts with corporate profits? Conversely, outside the extraordinary circumstances of the Capitol invasion, will they take down genuinely harmful speech that brings readers to their platforms? Past history suggests that the answer to both of these questions will be no. Certainly the oftenad hoc and inconsistent decision making that the platforms demonstrated during the 2020 election campaign is alone concerning.

Given all of this, it is worth considering a third option that has been used in the past, and could once again be used, to protect expressive freedom from private power: laws requiring that the private media companies governing the mass public sphere abide by basic nondiscrimination and, often, due-process obligations. Even when the First Amendment intruded further into the private sphere than it does today, statutory nondiscrimination and due-process requirements were lawmakers primary tools to ensure that the private companies that controlled the telegraph and telephone wires, the radio and television airwaves, and the cable networks did not use their power to discriminate in favor of certain political viewpoints, or otherwise undermine the vitality of public debate. The most famous, and controversial, example of these laws was the Fairness Doctrine, which imposed extensive, if vague, nondiscrimination duties on radio and television broadcasters, and to an extent, cable-television companies, from the 1930s until the late 80s, when Ronald Reagans FCC repealed it. But the Fairness Doctrine is only one example of a much wider array of media nondiscrimination laws, many of which continue to ensure, to this day, that, as one senator put it in 1926, the few men who control the great publicity vehicles of radio and television do not limit the range of ideas and viewpoints that the public can hear.

In this context as well, a significant shift in political attitudes has occurred. For much of the 20th century, conservatives were the ones who railed against the constraints that federal laws like the Fairness Doctrine imposed on private media companies, and liberals and progressives defended these policies against attack. Today, however, many conservatives argue for the need to impose statutory nondiscrimination duties on social-media companies, while many liberals express alarm about the constraints such bills would impose on the freedom of private companies.

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The Atlantic The Great Free-Speech Reversal - The Atlantic

Contrary to what many people believe, freedom of speech only applies to certain situations. Do you know what your First Amendment rights are?

Freedom of speech is one of our most treasured rights as Americans. Its also one of the most easily misunderstood. Recently, social media companies including Twitter and Facebook banned former President Donald Trump from their platforms, while Google, Apple, and Amazon took steps to remove Parler, the social media app favored by many of his supporters. Many citizens wondered if these steps were an infringement of their First Amendment rights. After all, doesnt the First Amendment guarantee our right to express ourselves freely?

Yesand no, says Jared Carter, professor of law at Vermont Law School for answers. Read on for an in-depth look at what the First Amendment really means. Youll also want to make sure you know the truth behind these myths about the U.S. Constitution most Americans believe.

The First Amendment is less than 50 words long, but each one was carefully chosen to serve as the bedrock for the freedoms we hold so dear. It states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Here are 19 political questions youve been too embarrassed to ask.

When read carefully, it becomes clear that the First Amendment only restricts the government from interfering with our freedom of speech, Carter points out. The government is not allowed to silence your speech, based on, say your viewpoint or your political views, he says. On the other hand, the First Amendment does not apply to private companies like Twitter or Facebook.

To further illuminate how this works, Carter shares this example: Lets say you own a restaurant and an individual repeatedly comes into the establishment and disrupting other diners. You as the restaurant owner can say to that person, youre no longer welcome in this private business.' This is why the First Amendment is not relevant in regards to Twitters ban on the former president, he says, because just like the hypothetical restaurant, Twitter is a private business.

Test your knowledge of the amendments to the Constitution.

Although our First Amendment rights guarantee we can express even the most controversial views without interference from the government, there are limits. These include:

Additionally, our First Amendment rights can also be restricted if we have an established relationship with the government. An example of this would be employees and students at a public school. Teachers arent allowed, for instance, to encourage students to take illegal drugs. Also, if your relationship with the government gives you access to classified information, you can be prohibited from sharing that.

On the other hand, the government does explicitly have the power to do these 14 bizarre things.

Sources:

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First Ammendment Rights What Is the First Ammendment? - Reader's Digest

Photo by Thought Catalog on Unsplash

By Attys.Alexander Manglinong and Philip Lim Nulud

ON January 7, 2021, a day after the reprehensible violence occurred at the U.S. Capitol, Facebook and Twitter locked former President Donald Trumps accounts.

Many people were up in arms and questioned how Facebook and Twitter could do that. People claimed that it was a violation of his freedom of speech. However, it was not.

Facebook and Twitter are private companies that are not required to provide anyone with their services or platform. Secondly, the First Amendment, which provides for the freedom of speech, does not apply.

When you create an account on Facebook, Twitter, or another social media platform, you agree to abide by their respective terms of service. Like it or not, you entered into a contract with Facebook. They will provide you with access to their platform, so long as you abide by their rules. For example, forFacebook, you agree to not use [Facebook] to do or share anything: [t]hat violates the [Terms of Service], [Facebook] Community Standards, and other terms and policies

In Facebooks Community Standards, there is a specific section as it pertains to Violence and Incitement. It states the following:

We aim to prevent potential offline harm that may be related to content on Facebook. While we understand that people commonly express disdain or disagreement by threatening or calling for violence in non-serious ways, we remove language that incites or facilitates serious violence. We remove content, disable accounts, and work with law enforcement when we believe there is a genuine risk of physical harm or direct threats to public safety. We also try to consider the language and context in order to distinguish casual statements from content that constitutes a credible threat to public or personal safety. In determining whether a threat is credible, we may also consider additional information like a persons public visibility and the risks to their physicalsafety. (Emphasis added.)

Thus, if Facebook determines what you posted incites violence, it can remove the content, and/or disable your account. In this situation, President Trumps speech was deemed to have incited the violence at the Capitol. Under Facebooks terms of service, Facebook was entirely within their right to disable his account.

Facebook, Twitter, and othersocial media companies are not publicly funded. They are private for-profit corporations that can act as they deem appropriate. While Facebook and Twitter are platforms for speech, they are under no obligation to provide anyone with access to their platforms.

The Free Speech Clause of the First Amendment states that Congress shall make no law . . . abridging the freedom of speech. This language restricts governmental, as opposed to private, abridgment of speech. In other words, the First Amendment only applies to actions by federal, state, and local governments.

As an exception to this general rule, the First Amendment may

apply to private entities if they are considered state actors. Under the so-called state-action doctrine, private entities can be subject to First Amendment constraints in only a few limited circumstancessuch as when (1) the private entity performs a function traditionally and exclusively reserved to the government; (2) the government compels the private entity to take a particular action; or (3) the government acts jointly with the private entity. With regard to the first category, U.S. Supreme Court has explained that very few functions are both traditionally and exclusively reserved to the government. Such functions include, for example, running elections and operating a company town.

The First Amendment does not apply to Facebook and Twitter because they are private companies and not state actors under the state-action doctrine. They operate separately and apart from government, and they were not compelled by the government to lock former President Trumps accounts. Further, their primary function namely, the operation of anonline social media platform has not been traditionally or exclusively reserved to the government.

The primary function of Facebook, Twitter, and other social media platforms may be viewed more broadly as the operation of a forum for speech. On this point, the government has traditionally and exclusively operated public forums for speech. But as the U.S. Supreme Court explained, a private entity can- not operate a public forum because it is not a state actor. Public forums, by definition, are forums for speech provided by the government. A contrary rule would effectively strip private companies of their ability to regulate their properties whenever they opened them for speech.

In short, Facebook and Twitter were within their contractual and constitutional rights to lock former President Trumps accounts. They, like other social media platforms, are private companies that may censor or suspend user accounts based on the users failure to abide by their terms of service and policies. As private entities, theyare not subject to the same free speech limitations under the First Amendment that generally apply to federal, state, and local governments.

***

The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

***

Alexander Manglinong is an attorney at Sanders Roberts LLP in Los Angeles, where he practices business, employment, and general liability litigation. He serves as the secretary on the Board of Governors of the Philippine American Bar Association (PABA).

***

Philip Lim Nulud is an attorney at Buchalter in Los Angeles, where he specializes in intellectual property law. Many of his clients are well-known fashion brands, who he represents in IP protection, strategy, enforcement, and licensing matters worldwide. He is currently a director of the National Asian Pacific American Bar Association (NAPABA), the immediate past president of the National Filipino American Lawyers Association (NFALA), and a past president of PABA. He has been named as one of the Most Influential Minority Attorneys in Los Angeles by the Los Angeles Business Journal.

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[OPINION] Does the First Amendment apply to what you post on social media? - Asian Journal News

We should revisit again and again the stirring call during President Joe Bidens inauguration to put the power and meaning of our First Amendment freedoms at center stage in the 21st century.

In past inaugural addresses, the anthems of a generation have been spoken by the incoming president: Think Franklin D. Roosevelts The only thing we have to fear is fear itself, John F. Kennedys Ask not what your country can do for you, but what you can do for your country, and even Abraham Lincolns call to the better angels of our nature. But not this time, with no insult to President Biden.

This years inspiration came from National Youth Poet Laureate Amanda Gorman, reciting no, inhabiting her poem, The Hill We Climb. She later said it was only half-complete on Jan. 6 when the insurrectionist mob invaded the U.S. Capitol and that the terrible moment gave me a second wave of energy to finish the poem.

Gorman said she wanted to speak of challenges the evidence of discord and division of the moment, but also to express her view of what is past and her vision of what is ahead.

Intentional or not, she echoed and celebrated the exhilarating optimism and intentions of the nations founders in 1791 as the First Amendment was ratified to lead off the Bill of Rights.

In using only 45 words to define our core freedoms perhaps sketch is a more apt descriptive the early leaders of this nation set a course to leave to future generations the practice and effect of those rights so basic to a democracy.

In a nation born of social tumult and bloody revolution, there was no reason to expect debate, discussion and dissent would dissolve as this grand experiment in self-governance unfolded. Rather we were left with the self-remedy machine that is the First Amendment.

Perhaps only a poet could reconcile our flawed past with our soaring aspirations, recognizing that from the beginning we have been coarse, conflicted and often contradictory: Our champions of freedom included slaveowners. In working to form a more perfect union, we dissolved into a bloody Civil War, remain divided by racisms great moral chasm and most recently, watched in horror a fumbled attempt at sedition.

And yet, we the people again and again strive to reach consensus from contention, agreement from argument all the while protected by the simply worded precept that declares we may dissent without being disloyal.

Gormans words put rhyme and lyric to the law:

Weve braved the belly of the beast.

Weve learned that quiet isnt always peace, and the norms and notions of what just is isnt always just-ice.

And yet the dawn is ours before we knew it.

Somehow we weathered and witnessed a nation that isnt broken, but simply unfinished.

.. And, yes, we are far from polished, far from pristine, but that doesnt mean we are striving to form a union that is perfect.

We are striving to forge our union with purpose.

To compose a country committed to all cultures, colors, characters and conditions of man.

And so we lift our gazes, not to what stands between us, but what stands before us.

The freedoms of religion, speech, press, assembly and petition define what it means to be an American, and they have provided us with the engines of change to regularly refine, improve and expand that definition.

Again, in Gormans words:

(Its) because being American is more than a pride we inherit.

Its the past we step into and how we repair it.

Weve seen a force that would shatter our nation, rather than share it.

Would destroy our country if it meant delaying democracy.

And this effort very nearly succeeded.

But while democracy can be periodically delayed, it can never be permanently defeated.

Generations of Americans have used their freedoms many times when other rights and benefits have been denied to set their fellow citizens on a fairer, more just path. Gormans words reminded us of the founders belief that the freedoms of the First Amendment can give hope for a better life for us all if we preserve, defend and use them.

So let us leave behind a country better than the one we were left

With every breath from my bronze-pounded chest, we will raise this wounded world into a wondrous one.

For there is always light, if only were brave enough to see it.

If only were brave enough to be it.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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Amanda Gorman's lyrical promise of the First Amendment - Hopkinsville Kentucky New Era

Well its been a good while since I managed to tick off nearly everyone, so, of course, a second take is called for.

Im referring to my Wednesday column concerning Destiny Adams, a 17-year-old Manchester High School student and a heavily recruited womens basketball star. Shes headed to the University of North Carolina next year to play hoops, but shes also got a bit of an activist streak to her. See, she wanted to wear a Black Lives Matter shirt during warmups before basketball games this year. Coaches punted to athletic director, athletic director punted to administration, administration punted to school board.

And in a 7-0 decision, handed down after Adams explained her reasoning, the board voted no without any discussion or comment, according to a Patch.com article.

My take Wednesday was simple: Adams should wear whatever damn shirt she pleases during warmups. There is no NJSIAA rule on this, according to the article, and its up to the schools themselves as to what constitutes pre-game attire.

My argument was equally simple: This is a First Amendment issue, and not a Black Lives Matter issue.

People did not take kindly to this.

A general breakdown of the three main comments and concerns I received ...

1) She is representing the school and thus shouldnt wear it. Well, sure, if the school decides thats the case after careful deliberation involving everyone. But there was no discussion, just an outright no from the board. Heres the issue: We own the schools. Its a taxpayer operation. Socialist, if you will (you will). As such, we, the people, are in charge of decisions such as these, and the board not even discussing it in an open forum is disgusting.

2) What about an All Lives Matter shirt, Jeff? What about a Blue Lives Matter shirt, Jeff? What about a Right to Bear Arms shirt, Jeff? What about a {fill in the blank} shirt, Jeff? Yeah. Sure. Go ahead. Wear whatever shirt you want. First Amendment issue, all day long. OK, but what about swastika T-shirts? Or Kill {insert whichever president you hate} T-shirts? Or other, clearly hate-filled T-shirts? Well, the United States Supreme Court has weighed in on this, and there are some pretty narrow limits. Non-protected speech includes obscenity, defamation, fraud, incitement, and true threats. Can we make the argument that a swastika shirt would fall under true threats? Probably. And a Kill whoever shirt certainly seems like incitement. Call a lawyer, you want to wear something like that. But a pro-Trump shirt, or a pro-police shirt, or a pro-Black Lives Matter shirt? Protected. Period. I would much rather run the risk of some asshat sporting a swastika than making these blanket bans.

3) And finally, my favorite, and there were a lot of these: If youre such a big First Amendment guy, what about Trump and Twitter and assorted other social media things? Yeah, this is a lay-up: Banning Trump from Twitter has nothing to do with the First Amendment. Twitter is a private company, and can do what they please. Its the same as The Trentonian banning Trump from writing op-eds. Were a private enterprise, we dont have to allow anyone who wants to write something the space to do so.

Now, do I think Twitter should have banned Trump? Well, he certainly deserved a time-out for his tweets that clearly broke the terms and conditions of the site, but banning him outright was probably a bit much. It just feeds into the anti-media idiocy.

OK. So. Have I made myself clear? The First Amendment - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances - is pretty much the bedrock of our democracy. Futz with it, and its a slippery slope.

So yes. Destiny Adams should have been allowed to wear the T-shirt and well would ya look at this: On Tuesday night, at the teams first game, Adams and most of her teammates showed up wearing Black Lives Matter hoodies, according to APP.com. Then they took them off and practiced in their warm up shirts from last year. And during the game, Adams and a bunch of teammates wore wristbands and socks with Black Lives Matter written on them.

Good. For. Her. (And. Them.)

And again, and for the last time, this isnt about Black Lives Matter; this is about the First Amendment. Save your emails.

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Oh, so you really want me to talk about the First Amendment, eh? (JEFF EDELSTEIN COLUMN) - The Trentonian

While fervent followers of President Donald Trump screamed foul and free speech when Twitter, Facebook, and other social media banned the president, they need to realize the First Amendment doesn't apply to private businesses.

Only the government grants free-speech rights through the Constitution. The First Amendment has no more power to grant anyone a Twitter handle than the Second Amendment requires a gun company to sell you a gun.

The First and Second amendments specify instead that, with a few exceptions, anyone can speak their mind and any law-abiding citizen can buy a gun. It guarantees those freedoms so government cannot take away your right to speak. That doesn't include compelling a private company to provide you with speaking "tools" like a Twitter or Facebook account.

The First Amendment does guarantee many variations of free speech. Under the First Amendment, the government, for example, could not prevent you from setting up a soapbox on a street corner and speaking your mind. It could not prevent you from distributing flyers or speaking at a public forum in a public place. The government cannot stop you from marching in a parade and carrying a sign.

The First Amendment even protects symbolic speech like burning a flag or kneeling while the national anthem is played. And the First Amendment has been invoked in recent years to protect "political speech" in the form of campaign contributions. Limits on contributions were ruled unconstitutional under the Citizens United case because the campaign donations constituted "political speech."

But when it comes to private companies like a newspaper or television station or social-media platform, the sovereignty of the stockholders rules. Investors in Twitter cannot be compelled to provide their service to everyone. It simply doesn't work that way.

If you think this is unfair, we can point to people to blame. Some 35 years ago, private broadcasters were required under the federal "fairness doctrine" to provide "equal time" for opposing political viewpoints. But you know what happened? Free-market Republicans like President Ronald Reagan and his cohorts did away with the fairness doctrine, figuring the market would determine who gets political speech and airtime.

So we got what we asked for: smaller government and less fairness.

If President Trump wants to use Twitter for his commentary and communication to his fans, he would be well advised to do something he says he's good at: Make a deal with Twitter. But the First Amendment cannot be invoked here. It doesn't apply.

The Free Press, Mankato, Minnesota

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Other View: First Amendment doesn't apply to Twitter, Facebook - Duluth News Tribune

Forty-five words that were first written with a quill pen 230 years ago form what may be the most consequential sentence in United States history.

But that sentence also is one of the most misunderstood as recent comments from some of our leaders illustrate.

The sentence I refer to is the First Amendment. It is the Constitutions guarantee of fundamental rights of the American people to live their lives without government butting in.

For reference, here is what the amendment says in full: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Some graduates of top law schools must have been snoozing in class when constitutional law was being taught. Sens. Josh Hawley and Ted Cruz are a couple of examples.

Hawley, R-Missouri, is a Yale law school graduate. Cruz, R-Texas, is a Harvard law school graduate. Before they were elected to the United States Senate, Hawley was Missouri attorney general and Cruz was Texas solicitor general.

It would not be surprising if someone without legal training did not fully grasp the nuances of those 45 words in the First Amendment. But it is troubling that Ivy League lawyers could be so wrong about such a fundamental part of life in America or be so willing to deliberately mislead the public.

Conservatives have groused that social media companies like Facebook and Twitter favor content with a clearly liberal bent. Cruz recently tore into corporate executives during a Senate hearing and demanded to know, Who the hell made Facebook the arbiter of political speech?

Hang on: The answer to Cruzs question is coming shortly.

Hawley was the first senator to rise in support of President Donald Trumps push to get Congress to reject the electoral votes from a handful of swing states that Joe Biden carried. After the violence at the Capitol on the day of the electoral vote certification, one of the nations big book publishers decided it no longer wanted to publish a new book Hawley has written.

The senator responded by accusing the publisher Simon & Schuster of a direct assault on the First Amendment by backing out of their deal.

Both Cruz and Hawley displayed a flawed understanding of the relationship of the First Amendment to companies like Simon & Schuster, Twitter or Facebook.

Any shade-tree lawyer should know the First Amendment prevents the government from stopping you from expressing your opinions or from demonstrating peacefully. It does not stop businesses from acting, or reacting, on free speech matters.

Hawley is free to take his manuscript to another publisher. He can decide to publish the book himself. But absent a contract clause prohibiting Simon & Schuster from canceling the deal, the company cannot be compelled to publish Hawleys book or anyone elses book.

People who are kicked off Twitter or Facebook have other options for disseminating their views, ideas and commentary especially when they live in the White House, with a press briefing room down the hall and a flock of journalists waiting there every day.

Just as Hawley cannot force Simon & Schuster to publish his book, I cannot compel the New York Times to publish these columns. Nor can I force the Trump family to put a stack of my political commentaries at the registration desk in each of their hotels.

Likewise, just as National Football League team owners have the legal right to punish players who kneel during the national anthem, Facebook or Twitter have the legal right to suspend or drop a user who violates the companies terms of service.

The First Amendment does not require Twitter and Facebook to give accounts to anyone any more than the Second Amendment requires gun manufacturers to sell you a gun.

The essayist A.J. Liebling put this First Amendment concept succinctly years ago when he wrote, Freedom of the press is limited to those who own one.

One of my friends who is not an essayist offered this not-so-succinct explanation of the intricacies of the First Amendment last week:

The government cannot punish you for waving a Confederate flag or wearing a 6MWE shirt or saluting rioters or yelling, You will not replace us. That would be censorship.

But your employer can fire you, your social media can suspend you, your publisher can drop you, and your neighbors can shun you. That is not censorship. That is your employer, your social media, your publisher, and your neighbors exercising their own rights.

Your right to free speech does not take away others right to react.

A footnote: If you are not familiar with the 6MWE acronym, organizations that study white supremacists say it is used as shorthand to claim that the 6 million Jews killed in the Holocaust werent enough.

That is a despicable position to take. The government cannot punish you for thinking or spreading a despicable message. But your boss can.

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Let's clear up needless confusion about the First Amendment - Oskaloosa Herald