Category Archives: First Amendment

CBS Miami

Do You Have A First Amendment Right To Follow President's Twitter Account? CBS Miami But just as seemingly everything Trump does and says sparks controversy, so too is the president's prolific and unpredictable use of Twitter, as one reporter called it, raising a novel question of constitutional law: Is there a First Amendment right ... 1st Amendment Lawyers Tell Trump to Un-Block Twitter UsersNBC 5 Dallas-Fort Worth President Trump, stop blocking me on TwitterCNN Trump's Tweets Just Went From Bad to Unconstitutional: Here's WhyInverse TIME -TIME -Politico all 624 news articles »

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Do You Have A First Amendment Right To Follow President's Twitter Account? - CBS Miami

This week, President Donald Trump came under fire for his Twitter activity, including blocking other users and tweeting about a pending case regarding his executive order for a a six-country travel ban [VIDEO]. Although Trump has made headlines [VIDEO] for his #Twitter Account in the past, some of his most recent activity has Twitter users questioning the constitutionality and legal implications of his online behavior.

On Tuesday, the Knights First Amendment Institute at Columbia University wrote a letter to Trump asking him to unblock Twitter users who posted content which disagreed or otherwise critiqued his actions.

The use of the block feature on Twitter is typically used to prevent other users from interacting with them personally. For most users, the use of this feature is not considered a violation of the law or Twitter's user policies. However, on Tuesday, #White House press secretary Sean Spicer confirmed at a press conference that tweets coming from Trump's Twitter account are also to be considered official White House statements. However, when users, particularly those in the US, are blocked from seeing such statements from public officials like Trump, it can lead to questions of transparency, which will inevitably lead to legal implications.

Furthermore, it is also likely that Trump's staff tweets for him. In such a case, blocking users would generate little to no effect, besides prohibit individuals from voicing concerns to him as an elected official.

The Knights First Amendment Institute also argued that such blocking interferes with First Amendment right because it obstructs freedom of speech in a "designated public forum."

However, it is yet to be determined by legislators whether social media is truly considered a public forum, further complicating the case.

Another argument made was that blocking users on Twitter would not violate the First Amendment, especially since the First Amendment concerns regarding Trump's tweets were directed at his personal Twitter account @realDonaldTrump, not his White House @POTUS account.

Also, this week, a tweet was posted on Trump's Twitter account regarding the petitioned Supreme Court case concerning the issue of his executive order for a six-country travel ban. The revised travel ban, originally including Iraq, now only includes Sudan, Libya, Iran, Yemen, Syria, and Somalia. Although Trump's legal counsel has advised him against referring to his executive order as a travel ban, Trump has continued to do so, as demonstrated by a tweet earlier this week.

That afternoon, the American Civil Liberties Union posted a tweet in response to Trump's post, stating that it might use his post against him in a Supreme Court argument.

Some legal experts predicted that the tweet could negatively impact his pending travel ban case. Others believed that Trump's tweets were not a legal issue.

"As a constitutional matter, as a legal matter, it should make absolutely no difference," said David B. Rivkin Jr., a lawyer for previous Republican administrations, to the New York Times.

The recent advent of #Social Media Law would make this case an unprecedented challenge for the Supreme Court.

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Top legal implications surrounding Trump's Twitter account - Blasting News

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Twitter users block others on the service all the time, in some cases because they are abusive and sometimes just because they're irritating. But is it different if the user doing the blocking happens to be the president of the United States?

The Knight First Amendment Institute says it is different, or at least that it should be. The Institute, a non-profit group associated with Columbia University, has sent a letter to the White House arguing that Trump is breaching the First Amendment rights of those he blocks.

It might seem laughable at first -- and there are some First Amendment experts and supporters who appear to find it so -- but the Institute believes that it has a valid case.

According to the letter, written by Institute director Jameel Jaffer, the president's Twitter account fits the legal definition of a "designated public forum," and as such it can't be closed to public access under the First Amendment.

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In effect, the Institute argues that the law requires Trump make his account available to everyone regardless of whether they criticize him. It has said it is considering pursuing a case against the president on behalf of two users who were blocked by him.

"Though the architects of the Constitution surely didnt contemplate presidential Twitter accounts, they understood that the President must not be allowed to banish views from public discourse simply because he finds them objectionable," Jaffer said in a statement.

"Having opened this forum to all comers, the President cant exclude people from it merely because he dislikes what theyre saying."

Not everyone is buying this argument, however. Ken White, a former assistant U.S. Attorney who writes legal commentary at Popehat and is a First Amendment expert, said that he found the idea of the Institute's case "ridiculous."

Ken Paulson, president of the First Amendment Center, told the Wall Street Journal that the Institute had a "novel and ambitious argument" that was clearly in the public interest. But he also described it as a "tough sell."

Is the presidents Twitter account "a public forum where interactive free expression is expected or more like a newsletter, where the communication is all one way?" Paulson asked. Municipalities that establish Facebook pages and invite citizen input may be creating public forums, "but Im not sure that Donald Trumps brief bursts of opinion are the same thing."

There a number of problems with determining whether Trump's Twitter account is a public forum or not, and one of them stems from the fact that the law is far from settled on the question of what exactly constitutes a truly public forum.

The other complicating factor is that Twitter is a privately-held company, and the president is just behaving in accordance with its terms of service.

The laws relating to free public access to government property were designed to protect the ability of demonstrators, protesters, etc. to speak their mind in public parks and other areas. The extension of this right to any "public forum" didn't occur until a Supreme Court decision in 1972, and from that point things just got more and more complicated.

As University of Florida law professor Lyrissa Lydsky put it in a legal paper on the First Amendment and online forums that was published in 2011, the U.S. Supreme Court's public forum and government speech doctrines are "lacking in coherence -- to put it mildly."

In a nutshell, there are several definitions for public forums, based in part on what the government's intentions were in setting them up in the first place. In a fully public forum, opposing views can't be censored. But a "limited public forum," which has a specific purpose, can be restricted in a variety of ways.

To further complicate things, the government and its representatives are protected from First Amendment rules on such matters if what they are doing is defined by the court as "government speech." If so, then feedback or input or access theoretically can be restricted.

So should Donald Trump's Twitter account be considered a public forum, a limited public forum, or a form of protected government speech?

Comments from press secretary Sean Spicer on Tuesday could be pertinent to such a case, because he said that Trump's tweets are considered to be "official statements by the president." That could support the argument that Trump is engaging in government speech, and therefore opposing viewpoints can be restricted without breaching the First Amendment.

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Trump Blocking Twitter Users Is a First Amendment Issue ...

NorthJersey 6:00 a.m. ET June 11, 2017

In this Sept. 23, 2016, file photo, Muslim worshippers pray during a service at the Bernards Township Community Center in Basking Ridge.(Photo: Julio Cortez/AP)

The right to worship, or not to worship at all, is one of the basic principles that has guided this nation since its founding. That right, though, increasingly, has come under siege lately as communities in New Jersey and across the country have tried to stymie Muslims in their efforts to practice their faith as they see fit.

As Staff Writer Hannan Adely reported, Muslims from New York to Minnesota are fighting what they believe to be an ongoing anti-Muslim campaign by filing lawsuits whenever they feel threatened. One such case recently involved Bernards Township in Somerset County. The U.S. Department of Justice announced that Bernards Township will pay $3.25 million to a settle a lawsuit over its denial of a permit to build a mosque.

Part of that settlement requires the township to train, within 180 days, all current and future members of its Planning Board and Township Committee in diversity and inclusion, particularly focusing on Islam and Muslims. It should never have had to come to this, not in diversity-rich New Jersey, and not anywhere in this country where people merely seek a place to pray or worship without feeling threatened.

Now, a new and similar case has surfaced in Bayonne, where a Muslim group filed a federal-discrimination lawsuit in late May after the city rejected its plan to convert an old warehouse on a dead-end street into a mosque. Indeed, as anti-Muslim sentiment has increased including reports of anti-mosque fliers being placed in childrens mailboxes at school Muslim groups have remained undeterred, and more determined than ever to press the issue.

Municipalities around the country should pay close attention to what happened in Bernards Township, said Adeel Abdullah Mangi, an attorney representing Muslim groups in the Bernards and Bayonne lawsuits. The American Muslim community has the legal resources, the allies and the determination to stand up for its constitutional rights in court and will do so.

The U.S. Department of Justice, in a report last year, said there had been a sharp increase in the number of its investigations into religious discrimination involving mosques or Islamic schools over the past six years. The same report noted particularly severe discrimination faced by Muslims in land use.

The founders of this nation were not perfect men, but they knew enough to realize the importance of religious liberty, the practical right of individuals to practice their faith without interference from the state. That right is enshrined in the Constitution, and it is going to stay there. Local municipalities around the country opposed to the building of mosques had better get used to the idea.

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Editorial: First Amendment protects all faiths - NorthJersey.com

Friday on his nationally syndicated radio show, conservative talker Mark Levin, author of the forthcoming book Rediscovering Americanism: And the Tyranny of Progressivism, read from a Federalist piece by Ben Domenech laying out how Domenech viewed CNNs war on President Donald Trump.

Domenech argued CNN was sacrificing balance and centrism in its quest against Trump.

Levin agreed with Domenechs findings but took it a step further by declaring that CNN was destroying the First Amendment and that Trump was right to say the media are evil in some circumstances and singled out CNNs Jake Tapper.

You can see how CNN has changed its coverage, Levin said. CNN is at war with Trump. CNN is violating CNN is destroying the First Amendment and freedom of the press. And when Jake Tapper says, How dare President [Trump] call us evil? Jake, youre evil. Youre unconscionable. All of you because you know exactly what youre doing. You dont care.

Later in the segment, Levin argued there was more truthful reporting on Russia TV than CNN, adding that he had never watched Russia TV before.

I think you get more truthful reporting on Russia TV, which I have never watched in my life, than you get on CNN, he added. How do I know? Because you dont get truthful reporting on CNN. And you know what youre getting on Russia TV. They call themselves Russia TV. Oh must be about Russia or something, Russia TV. CNN pretends to be something its not an objective news organization. Its not an objective news organization. They got one clown after another, one fool after another, one Democratic appointee after another.

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Mark Levin: CNN Is Destroying the First Amendment Jake Tapper Is 'Evil' - Breitbart News

A First Amendment issue is brewing in federal court over a local Wisconsin ordinancethe nation's firstthat requires publishers of augmented reality mobile games like Pokemon Goand Texas Rope 'Em to get a special use permit if their apps require gamers to play in Milwaukee County parks.

A Southern California company called Candy Lab, the maker of Texas Rope 'Em, is suing the county over the requirement that was adopted in February in the wake of the Pokemon Gocraze that resulted in a Milwaukee county park being overrun bya deluge of players. The permit, which costs as much as $1,000, requires estimates for crowd size and the event dates and times. It also calls for plans about garbage collection, bathroom use, on-site security,and medical services.

Candy Lab says it's impossible to comply with the permit for it fledgling app. Candy Lab can neither realistically answer the permit's questions(PDF) nor afford to pay for the other requirements like on-site security when users of its platform hunt for a winning hand in its augmented realityversion of Texas Hold 'Em. Like Niantic's Pokemon Go, Candy Lab's app is built to be played in designated parks and other areas. These types of mobile apps provide users with an augmented and interactive view of the park.

Candy Lab said the county is free to regulate the park however it sees fit. But what it cannot do is impose a permitting process on a game publisher, the company said. The requirement for a "special event permit"amounts to a prior restraint of speech in violation of the First Amendment, the company claims in its lawsuit. (PDF)

Just like the Constitution protects a book publisher from requiring a permit to release a book, Candy Lab says the same is true for augmented reality games that are played in public spaces."They are tying to shoehorn us into this existing permitting scheme for events that are finite in time," Brian Wassom, Candy Lab's attorney, said in a Friday interview. "They're passing two-dimensional laws in a three-dimensional world."

But the county views it from a different dimension, one where augmented reality games like Texas Rope 'Em are not protected by the First Amendment.

"Texas Rope 'Em is not entitled to First Amendment protection because it does not convey any messages or ideas. Unlike books, movies, music, plays and video gamesmediums of expression that typically enjoy First Amendment protectionTexas Rope 'Em has no plot, no storylines, no characters, and no dialogue. All it conveys is a random display of cards and a map. Absent the communicative features that invoke the First Amendment, Candy Lab has no First Amendment claim," the county said. (PDF)

The county said it was aware of the 2011 Supreme Court ruling against California's ban on the sale or rental of violent video games to minors. In coming to that conclusion in Brown v. Entertainment Merchants Association, (PDF) the justices said that video games amounted to speech protected under the First Amendment.But that doesn't mean the same is true when it comes to augmented reality, according to the county.

"No court has yet determined whether an augmented reality game receives First Amendment protection," the county notes in its response to Candy Labs' federal lawsuit."As explained in Brown, the reason that video games receive First Amendment protection is because they communicate ideas and messages through literary devices or through features distinctive to the medium. ...In other words, video games will be protected under theFirst Amendment if they include sufficient communicative, expressive, or informative elements to fall at least within the outer limits of constitutionally protected speech."

Texas Rope 'Em, the county maintains,"has no storylines, no characters, no plot and no dialogue. The player simply views randomly generated cards and travels to locations to get more. That is not the type of speech that demands First Amendment safeguards."The county also claims the app is an illegal form of gambling not entitled to First Amendment protection.

Wassom, the attorney for Candy Lab, told Ars that the county's argument is "ridiculous."

"Those are features of a particular expression of a game," he said. "That doesnt make it not entertainment and not speech."

Niantic, the maker of Pokemon Go, told Ars that "continued innovation and responsible game play, rather than regulation, is the way that developers, players, and their communities will realize the potential of this technology for civic engagement, creative expression, and health."The company said it is working with Milwaukee to help placate its concerns.

"We have worked with parks departments, in Milwaukee and other communities, to optimize the distribution of gameplay including removing or relocating some gameplay locations while adding new ones in other areas and also by adding the ability to control the hours of operation for game locations to conform with local rules," Niantic said.

Wassom said that Candy Lab would formally respond in court to the county's arguments on Wednesday. US District Judge JP Stadtmueller in the Eastern District of Wisconsin has set an April 2018 trial date if no settlement is reached.

Listing image by Candy Lab

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Augmented reality lawsuit provides augmented view of 1st Amendment - Ars Technica

Twitter was an invaluable tool for candidate Donald Trump, allowing him to bypass traditional media channels and connect with a passionate base of followers. But as president, Trump's frequent use of Twitter is turning out to be a major liability for him.

President Trump's tweets earlier this week about his controversial "travel ban" executive order may end up undermining that executive order in court. To recap: Back in January, the president signed the original version, which banned travelers from seven Muslim-majority countries from entering the United States, but gave priority to refugee claims made by individuals whose religion "is a minority religion in the individual's country of nationality." This meant that the executive order effectively favored non-Muslim refugees over Muslim refugees, which many legal experts saw as a violation of the First Amendment. Freedom of religion specifically the Establishment Clause prohibits the government from favoring some religious groups over others.

On February 9, the Court of Appeals for the Ninth Circuit temporarily blocked the Trump administration from carrying out the order. The Trump administration decided to go back to the drawing board and revise it. Among other things, the administration removed the provision giving priority to refugees from minority religious groups in fact, it scrubbed the order of all references to religion. Nevertheless, the Court of Appeals for the Fourth Circuit ruled on May 25 that the revised executive order still violates the Establishment Clause. The Supreme Court will likely be deciding if the order is constitutional this fall.

As is his custom, President Trump took to Twitter to vent his frustration: "The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C." This statement hurts the argument that the government will likely make in front of the Supreme Court that the revised executive order is sufficiently different in motive and operation from the original to pass constitutional muster.

It might seem strange that President Trump's social media habits could have an impact on the constitutionality of the travel ban. But that's because when it comes to the Establishment Clause, courts not only consider the letter of the law, but also the spirit of it. A law, or an executive order, cannot be constitutional if its primary purpose is to discriminate on the basis of religion. When judges are determining a law's primary purpose, they're not just limited to looking at the text. They can also look at the "historical context" of the law and the specific sequence of events leading to its passage. The Fourth Circuit considered President Trump's campaign tweets to be a vital part of the executive order's historical context, citing his campaign promises to ban Muslims from the United States as "creating a compelling case that [the revised executive order's] primary purpose is religious." By suggesting that the second order was merely a "watered down" version of the first, with the same purpose, President Trump's recent tweets are only adding to a record that may be used against the executive order when its fate is in the hands of the Supreme Court.

On less serious matters, President Trump is also facing a potential legal challenge from two users on Twitter that the president had recently blocked. These two, with the aid of the Knight First Amendment Institute, sent the White House a letter on June 6 stating that the president had violated their First Amendment rights when he blocked them, purportedly because they were critical of his policies. It seems bizarre that blocking someone on Twitter could potentially violate the Constitution, but this stems from President Trump's role as a government official and his use of Twitter to discuss domestic and foreign policy. One could argue, as the two angry tweeters might, that President Trump has turned his Twitter account into a limited public forum a place where people can express themselves. A similar thing happens when the government allows people to use its meeting spaces, or enables people to leave comments on an online forum. The government can place reasonable regulations on this sort of activity for example, by blocking users who make threats, or censoring profane comments but it can't discriminate against users based on their point of view.

It's unclear whether the challenge to the president's Twitter blocking practices will end up in court. But it's worth watching and interesting to note that Twitter has gotten President Trump embroiled in two different First Amendment legal matters.

Lata Nott is executive director of the First Amendment Center of the Newseum Institute. Contact her via email at lnott@newseum.org, or follow her on Twitter at @LataNott

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INSIDE THE FIRST AMENDMENT: Trump's use of Twitter puts him in constitutional hot water - Meridian Star

In what attorneys are calling a victory for state policies against child abuse and a vindication for the First Amendment, Ohio's Eighth District Court of Appeals upheld the trial victory of a former student and former employee of the Chagrin Falls-based English Nanny & Governess School.

The appeals court also found that trial court judge Burt Griffin abused his discretion byreducing the jury's damages and attorneys' fees awards to plaintiffs, and by sanctioning attorney Peter Pattakos for sharing publicly available information about the case with Scene.

"The appeals court's decision represents a great victory for Ms. Cruz [the former student] and Ms. Kaiser [the former employee], and vindicates the First Amendment, the public's right to access court proceedings, and most importantly, Ohio's strong public policy against child abuse," said Pattakos, in a press release. "Christina Cruz and Heidi Kaiser are real heroes, and not just for resisting the efforts of defendantswho were in a position of great power and influence over them and their careersto suppress the child-abuse report."

The original suit, filed by Cruz, alleged thatthe schools owners retaliated against her after she reported that she saw a wealthy client sexually abuse his daughter in 2011.

"Upholding the trial court's decision could have numerous unintended consequences," the appeals court said in its decision. "For example, defendants in criminal cases potentially could ask for sanctions against prosecutors who provide information to the media about criminal cases. On any given day, newspapers show headlines of ongoing trials, recapping the evidence that was presented that day at trial. In fact, on April 3, 2015, around the same time that Scene Magazine printed the article at issue, a former Cuyahoga County Prosecutor issued a public statement that was published on various news media outlets about the trial of a Cleveland police officer that was set to begin in three days. No sanction was levied against the prosecutor's officer for this public statement ... It should not be held that merely urging a media outlet to cover a trial constitutes frivolous conduct."

The full press release, with information about the Appeals court's decision, is available here. The court's opinion can be read in full here.

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Big Win for Plaintiffs in Nanny School Sex Abuse Case, Plus Victory for First Amendment - Cleveland Scene Weekly

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Former employees claim Muncie Community Schools violated First Amendment rights WISH-TV MUNCIE, Ind. (WISH) Former employees of the Muncie Community Schools claim the district violated their first amendment rights. They have filed a lawsuit against the district, school board and superintendent. A former teacher and administrator claim ...

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Former employees claim Muncie Community Schools violated First Amendment rights - WISH-TV

Free speech and its limitations are on Americans minds. In the past year weve seen Nazis and white supremacists rally in our cities, angry protesters chase provocateurs off of college campuses, a comedian wield a bloody effigy of the presidents severed head, and slurs and overt racial animus made a staple of political discourse. Controversial speech has people talking about what restrictions, if any, society can enforce on words we despise.

That inquiry isnt inherently bad. Its good for citizens to want to learn more about the contours of our constitutional rights. The dilemma is that the public debate about free speech relies on useless cliches, not on accurate information about the law.

Here are some of the most popular misleading slogans:

This slogan is true, but rarely helpful. The Supreme Court has called the few exceptions to the 1st Amendment well-defined and narrowly limited. They include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. First Amendment exceptions are not an open-ended category, and the Supreme Court has repeatedly declined to add to them, especially in the last generation. Merely observing that some exceptions exist does not help anyone determine whether particular speech falls into one of those exceptions. Its a non sequitur.

Imagine youre bitten by a snake on a hike, and you want to know rather urgently whether the snake is venomous. You describe the snake to your doctor. Well, not all snakes are venomous, your doctor responds. Not very helpful, it is?

Almost 100 years ago, Supreme Court Justice Oliver Wendel Holmes, Jr. coined a version of this now-familiar metaphor. Holmes used it to explain why the Supreme Court was upholding the criminal conviction of Charles Shenck, who was jailed merely for distributing materials urging peaceful resistance to the draft in World War I. Fortunately, the Supreme Court often led by Holmes himself retreated from this terrible precedent, eventually ruling that speech cant be punished as incitement unless it is intended and likely to provoke imminent lawless action. In other words, this favorite rhetorical apologia for censorship was used in the course of a decision now universally recognized as bad law.

Holmes usually misquoted slogan (he said that the law allows us to punish someone for falsely shouting fire in a crowded theater) is really just another way to observe that not all speech is protected and there are limits to 1st Amendment protections. As I said before thats not in dispute, but invoking the truism does nothing to resolve whether any particular speech falls within the well-defined and narrow exceptions to the 1st Amendment.

This popular saying reflects our contempt for bigotry, but its not a correct statement of law. There is no general 1st Amendment exception allowing the government to punish hate speech that denigrates people based on their identity. Things we call hate speech might occasionally fall into an existing 1st Amendment exception: a racist speech might seek to incite imminent violence against a group, or might be reasonably interpreted as an immediate threat to do harm. But hate speech, like other ugly types of speech we despise, is broadly protected.

Censorship advocates often tell us we need to balance the freedom of speak with the harm that speech does. This is arguable philosophically, but it is wrong legally. American courts dont decide whether to protect speech by balancing its harm against its benefit; they ask only if it falls into a specific 1st Amendment exception. As the Supreme Court recently put it, [t]he First Amendments guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.

Years ago the Supreme Court recognized a very narrow 1st Amendment exception for fighting words. If the exception still survives, its limited to in-person face-to-face insults directed at a particular person and likely to provoke a violent response from that person. It doesnt apply broadly to offensive speech, even though its often invoked to justify censoring such speech.

The Supreme Courts approach to constitutional rights can change very quickly. For instance, it took less than a generation for the court to reverse course on whether the government could punish gay sex. But for decades the court has been moving towards more vigorous protection of free speech, not less. Some of the most controversial and unpopular speech to come before the court like videos of animals being tortured, or incendiary Westboro Baptist Church protests at funerals have yielded solid 8-to-1 majorities in favor of protecting speech. Theres no sign of a growing appetite for censorship on the court.

Even as a free speech advocate and critic of censorship, Im happy to see a public debate about the limits of free speech. Any debate that raises consciousness about our rights can be productive. But the free speech debate should proceed based on facts and well-established law, not empty rhetoric. Familiarity with our rights and how they work is a civic obligation.

Ken White is a 1st Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los Angeles.

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Actually, hate speech is protected speech - LA Times - Los Angeles Times