A federal judge has authorized an immediate appeal of herdecision to allow PEN America to proceed with claims that President Trump violated the First Amendment by retaliating against journalists based on their critical coverage.

In a decision issuedThursday, U.S. District Court Judge Lorna Schofield in New York ruled that the dispute presented legal questions that lent themselves to appellate review -- including whether a judge could issue adeclaratory judgment against a sitting President over his discretionary conduct.

Schofield said that question implicates constitutional considerations, and that its resolutionwould materially advance the ultimate termination of the litigation.

The ruling paves the way for the Department of Justice to as the 2nd Circuit Court of Appeals to intervene inthe matter.

advertisement

advertisement

The fight dates to 2018, when the organization PEN America sought a declaratory judgment that Trump violated the constitution by retaliating against journalists based on theirviewpoints, and by threatening the media in a way that could chill free speech.

PEN America also sought an injunction prohibiting the federal government from taking action against mediaorganizations and journalists for their criticism of the White House.

Among other claims, PEN Americaalleged that the administration wrongly revoked the press credentials of CNN's JimAcosta after a contentious November 2019 press conference. (A federal judge in Washington, D.C. subsequently ordered the government to restore Acosta's press pass.)

Schofield ruled in March that PEN America was entitled to pursue its request for adeclaratory judgment. But she said the organization couldn't proceed with its request for an injunction, given that Trump has discretionary authority over matters like securityclearances.

The Department of Justice then asked Schofield for permission to appeal to the 2nd Circuit.

The administration said it wanted to raise several arguments, including whetherTrump can be subjected to a lawsuit seeking a declaratory judgment based on non-ministerial actions he performed in an official capacity.

See the article here:

Judge Authorizes Appeal In PEN America's First Amendment Fight With Trump 10/05/2020 - MediaPost Communications

Law360 (October 7, 2020, 6:37 PM EDT) -- The U.S. government should be able to limit any service that poses a threat to the country's national security, whether or not that company facilitates communications, the Trump administration has argued in its bid to ban WeChat in the U.S.

In a Tuesday court filing, the administration told a California federal judge that the simple fact that Tencent-owned WeChat is a mobile communications app doesn't entitle the company to First Amendment protection orpreclude the government from cracking down on it for national security purposes.

"Were Tencent to sell electricity to U.S. consumers and, in so doing, systematically collect and send payment...

In the legal profession, information is the key to success. You have to know whats happening with clients, competitors, practice areas, and industries. Law360 provides the intelligence you need to remain an expert and beat the competition.

TRY LAW360 FREE FOR SEVEN DAYS

Read more:

Trump Admin. Says First Amendment Is Moot In WeChat Case - Law360

The President of the United States our role model, our leader, the most powerful man in the world stood in front of a throng of people on a recent September evening in Minnesota, riffing like a comedian.

Wasnt it a beautiful sight, he said.

Donald John Trump was describing the fact that police officers at a demonstration protesting the killing of George Floyd had fired into the crowd and unknowingly hit prominent MSNBC broadcaster Ali Veshi in the knee with a rubber bullet. Veshi was covering the rally, a protected freedom of assembly event, and was retreating from police and the front lines when he was shot.It is why we have journalists: they go where we cannot sometimes dangerous places and report back to us.

Beautiful, the President said. It's called law and order."

And the crowd cheered his remarks.They cheered the shooting of an American journalist. A few days later at another rally, he repeated the refrain: Seeing the reporter thrown aside. like he was a little bag of popcornits a beautiful sight.

President Donald Trump speaks to supporters during a rally.(Photo: [Lucy Schaly/for BCT])

Protecting the First Amendment would be this President's priority

Amid clash with Trump, Facebook should follow Twitter and protect freedom: Opinion

Coronavirus: Trump covering eyes, quieting critics won't stop virus' deadly impact

No wonder that at Trump rallies his minions can be seen wearing no masks but t-shirts emblazoned with, Rope, tree, journalist. Some assembly required. He eggs them on. He exhorts them to taunt and threaten the fake news purveyors.

Of course, to Trump fake news is simply anything that is critical, that puts him in a bad light or doesnt agree with whatever lies he floats from a disappearing virus to the myth of his business acumen. It is the hallmark of authoritarians, dating back to the Kings of Europe who would cut off the hands of disliked writers.

When allowed, I wrote in this space in September 2018, the authoritarians, the unscrupulous in power, will try to meddle, control, block and suffocate dissent and disagreement.When you expose or criticize or give space to the opposition, you must be the enemy.

The President of the United States, running for re-election on Nov. 3, was in quarantine this week, and we wish him and his family well.But the fact of the matter still remains: He is the worst and most dangerous First Amendment President America has ever seen. He has offered a treasure trove of material for people like me who write about freedom of speech.

But for the Constitution and democracy he is a menace, failing to understand why the Framers put these protections in writing in 1791, four years after actually adopting a constitution.They knew autocrats, like Trump, would try to drown out opposition parties and shut down anyone who got in the way of their holding power. Lock up those pesky reporters and broadcasters!

As the election nears Ive looked back over the 45 free speech columns I have written since Trump was elected, and they document a growing menace, a brooding and petulant man who, as Pulitzer Prize-winning journalist Bernard Stein told me, doesnt seem to have any grasp of the prohibitions (on his power). He just chafes against them. It is not a good thing to have authoritarian impulses. If your reaction is to put your fingers in your ears, you are missing something valuable.

What he is missing is the heartbeat of democracy: a civil debate on the problems that confront us and discussion of how to deal with them.

The first maxim of the First Amendment is that people can peaceably gather.Its their chance to yell at City Hall, to protest police practices, to complain they dont like to be told to wear masks or squawk that the Presidents maskless rallies are spreading the virus. Take to the public square and vent your spleen!And the government cannot stop you based for dislike of your speech.

Pulitzer Prize-winning editor Geneva Overholser told me the Presidents attitude toward free speech and press was truly scary.And she is right because as I wrote in July 2019, When the First Amendment to the Constitution was adopted in 1791, one of the major concerns was to find a way to stop the central governmental authorities from controlling our speech, in essence, from trying to control our thoughts.Think it, say it, publish it and you are protected. No Big Brother can stop you.

But Big Brother Trump doesnt get it. This President will kick you out of the square if you dissent from his view of the world, like the football players who kneeled in silent protest at police brutality.He doffed his presidential cap to the white nationalists but declined to support peaceful protests of racism.Until a federal judge reminded him that the First Amendment doesnt allow censorship of critics, he tried to block opponents on his Twitter page.

And dont you dare let him hear about his mistakes, if youre a reporter.The Saudis can assassinate Washington Posts Jamal Khashoggi, but dont dare ask an impudent question at a press conference, especially if you are woman.Off to the Gulag!

The atmosphere of hate against the press has been caused by Trump.When you repeatedly call a treasured, protected institution an enemy of the people, you lay the seeds for attacks on the press. When you constantly demean reporters, impugn their integrity, point at them at rallies so they can be jeered and go to war with them beyond the expected adversarial relationship you invite violence.

Trump just has never gotten it that the press was never meant to be his arm; it is the peoples arm.

And dont get me wrong, as I wrote in July 2018: The Fourth Branch of government needs to be held accountable, as do all American institutions. A little tongue-lashing is a good thing.But when it comes from the President, when it refuses to recognize the role the press plays as glue and lubricant in democracy and when it seeks to undermine the legitimacy of the institution of journalism, it is beyond worrisome it reeks of dangerous authoritarianism.

But that is what we have: a dangerous authoritarian who seeks to stifle dissenting voices, intimidate critics, discredit the press, hide his personal and governmental activities even during his health crisis and ignore that the Constitutions First Amendment insures that a democratic society have uncensored debate and discussion in order to be self-governing.

When you use the bully pulpit to promote a climate of violence against one of the most vital institutions protecting our liberties, you need to be held accountable. And you need to be denied that bully pulpit.I wrote those words in July of 2018. Now the time has come:Throw the bully, Donald John Trump, out of the pulpit.

Rob Miraldis writings on the First Amendment have won numerous state and national awards.He teaches journalism at SUNY New Paltz. Twitter @miral98 and e-mail miral98@aol.com.

Read or Share this story: https://www.poughkeepsiejournal.com/story/opinion/2020/10/07/vote-trump-vote-against-first-amendment/5905998002/

See more here:

A vote for Trump is a vote against the First Amendment - Poughkeepsie Journal

After the debut of hit showEmpire, record label Empire Distribution asserted trademark infringement counterclaims against Twentieth Century Fox Television, who sought a declaratory judgment that its television show and associated music releases did not violate Empire Distributions trademark rights. InTwentieth Century Fox TV v. Empire Distribution, Inc., 875 F.3d 1192 (9th Cir. 2017), the Ninth Circuit affirmed the district courts finding that the First Amendment protected Foxs use of the name Empire for an expressive, creative work and ancillary works. In doing so, the appellate panel reaffirmed First Amendment protection for use of marks in creative works where the use of the mark bears some artistic relevance to the underlying work and does not explicitly mislead consumers.

Founded in 2010, Empire Distribution is a record label that records and releases albums in the urban music genre, which includes hip hop, rap, and R&B. In 2015, Fox premiered Empire, a dramatic television series about a fictional New York-based hip-hop record label, and the storylines that revolve around its inception, founding members, executives, and artists. The show features songs in every episode, some of which are original, and Fox contracted with Columbia Records to distribute the music in the show under theEmpirebrand. After receiving several threatening letters from Empire Distribution about Foxs use of the Empire name, Fox filed a declaratory judgment action seeking a determination that itsEmpireshow, its associated music releases, and affiliate merchandise did not violate Empire Distributions trademark rights. Empire Distribution counterclaim for trademark infringement, unfair competition, and false advertising. The fight centered on whether Foxs creative work, which utilized the protected name and trademark of Empire Distribution, was exempt from the Lanham Act as a First Amendment expression.

When it comes to First Amendment protections for trademark use, the discussion must start with the test expounded by the Second Circuit inRogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989). Courts generally apply theRogerstest in determining whether an expressive work runs afoul of the Lanham Act where the public interest in avoiding consumer confusion outweighs the public interest in free expression. Pursuant toRogers, use of anothers trademark or protected identifying material in an expressive work does not violate the Lanham Act unless the use has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless it explicitly misleads consumers as to the source or content of the work.

Analyzing the first prong, the Ninth Circuit found Fox used the word Empire for artistically relevant reasons because the show was set in New York, the Empire State, and its subject matter is a music and entertainment conglomerate. The court rejected Empire Distributions contention that for a use to have an artistic relevance it must refer to the owners mark, in this case Empire Distribution, holding that supporting the themes and geographic setting of the work was sufficient to satisfy the first prong of theRogerstest, which simply requires minimal relevance.

.

Turning to the second prong, the Ninth Circuit found Foxs use of the titleEmpiredid not explicitly mislead consumers. Absent an explicit indication, overt claim, or explicit misstatement that causes such consumer confusion, the second prong of theRogerstest will be satisfied. SinceEmpiredid not mislead consumers into believing it was produced or created by Empire Distribution, the Court affirmed the lower courts grant of summary judgment in favor of Fox.

Tucked away in the Ninth Circuits decision is the acknowledgment that not only is an expressive work protected from trademark infringement liability if it passes theRogerstest, but also are similarly branded ancillary promotional activities and commercial products based on the expressive work. So as long as the attendant commercial use is auxiliary to the expressive work and not explicitly misleading, it falls within the protective umbrella. Thus, Fox can sellEmpirebranded CDs, t-shirts, and music, as well as put on and promoteEmpireconcerts without infringing on Empire Distributions exclusive rights to use the Empire name in conjunction with those goods and services. Although the Ninth Circuits decision may be a significant victory for Fox and other creators of expressive works, brand owners will likely see this decision as a setback to trademark enforcement and an expansion of theRogerstest. With bated breath, we anticipate how other courts apply and expound onRogersin light of the Ninth Circuits decision, and whether the Supreme Court will weigh in on the topic.

Read the rest here:

Use of Trademarks in Creative Works & Lanham Act Liability - The National Law Review

The Kennebec Historical Societys October Facebook Live presentation, Introduction to the First Amendment Museum, will begin at 6:30 p.m. Wednesday, Oct. 21, according to a news release from Scott R. Wood, the societys administrative director.

The video also will be available to watch later if preferred. Those who have a question for the Q&A can submit it in the comments on this event, or comment with it during the live video presentation. Here is the link to the KHS Facebook page: facebook.com.

In 1789, James Madison penned the First Amendment protecting our freedoms of religion, speech, press, assembly and petition. A century later, WH Gannett of Augusta, Maine, used those freedoms to publish Comfort magazine, the first American magazine to reach 1 million paid subscriptions. His son, Guy Gannett, expanded the business to become Gannett Communications and became Maines most celebrated publisher, establishing newspaper, radio and tv brands we still recognize today.

Now, a century after Guy published his first newspaper, his granddaughters are building a museum in his former home on State Street. Join new CEO Christian Cotz as he explores the history of Madison, the First Amendment, and the Gannett family, and shares the latest developments in the evolution of the First Amendment Museum.

According to the release, Cotz was hired to be the CEO at the First Amendment Museum in January. Before that, he spent 20 years managing public programming at James Madisons Montpelier in central Virginia. He was deeply involved in Montpeliers relationship-building work with the descendant community, and was the project director for the celebrated exhibition, The Mere Distinction of Colour, which won six national museum awards.

For more information about the program, call Wood at 207-622-7718.

.

Previous

Next

Follow this link:

'Introduction to the First Amendment Museum' topic of presentation - Kennebec Journal & Morning Sentinel

Audrey Greene recently rejoined the Reporters Committee for the Freedom of the Press as the Inasmuch Foundation Legal Fellow, a role focused on First Amendment issues, including libel and protection of confidential sources.

Audrey fields calls to the Reporters Committee legal hotline, drafts amicus briefs and helps provide pre-publication legal review for investigative stories produced by journalists, including documentary filmmakers.

Journalists experience a number of barriers [to press freedom], and I feel the work that the Reporters Committee is doing is increasingly essential, she said.

Audrey said she hopes to gain a deeper understanding of media law and First Amendment issues through her work with the Reporters Committee.

Audreys interest in First Amendment law blossomed in her undergraduate career at Barnard College, a private liberal arts college in New York City, where she worked on the Columbia Daily Spectator, the schools weekly student newspaper, and took courses on the First Amendment.

By the time I graduated, Audrey said, I really had a sense that I wanted to focus on media law and eventually go to law school.

Audrey graduated from Barnard College in 2015 with a bachelors degree in political science and a minor in religion. She then worked as a paralegal on Googles ads legal team before going to law school.

In 2017, she enrolled at The George Washington University Law School, where she wrote for The Federal Communications Law Journal, focusing on telecommunications law, and mentored younger students as part of the mock trial board. Audrey also worked as an intern for the Knight First Amendment Institute and as a legal intern for the Reporters Committee.

She recalled that it was Adam Marshall, a Reporters Committee staff attorney and alumni of GW law school, who inspired her to apply for the internship and, later, the fellowship position.

I came away from those conversations [with Adam] having a great impression of the organization and thinking this would be a cool place to spend some time during or after law school, she said.

Audrey received her J.D. earlier this year.

Audrey Greene is not admitted to practice law.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

Read more from the original source:

Reporters Committee welcomes Inasmuch Foundation Legal Fellow - Reporters Committee for Freedom of the Press

Gene Policinski. Photo courtesy Freedom Forum

By GENE POLICINSKI

Just how free should a free press be to report on the illness and condition of a sitting president during a national health emergency?

And how free are we to publicly offer our thoughts on the matter?

Both questions have the same legal answer: The First Amendment places no limits on what journalists, bloggers or others might report, and what we might say or speculate about the health of the president.

So, whats left are the First Amendment-ish concerns for reporters from longstanding national security concerns to a possible zone of personal privacy.

And given our fractured, polarized and politically divided society, the rise of social media puts all of us in that kind of -ish situation balancing our right to speak out in any way we choose against the social norms we should consider and the fact that theres no First Amendment insulation for us from the reaction to what we say.

The news that President Trump was infected with the COVID-19 virus came first in his own tweet, not through the news media, just after midnight on Oct. 2. Within minutes, news organizations relayed that dramatic news. Social media began firing up, with comments, forecasts and to put it gently sharp examples of the nations political divide.

To top it all off, a whirlwind of announcements, reports and commentary some contradictory on Trumps illness, brief hospitalization and now his ongoing treatment at the White House is unfolding in the midst of the final weeks of the 2020 presidential campaign.

For the record, U.S. history offers any number of examples of non-disclosure, image manipulation, complaints about White House transparency and press coverage of presidential health and public debate over the public comments about it all.

AfterPresident James Garfieldwas shot in 1881 at a Washington D.C., railroad station, official statements reported his condition as good or stable despite the reality that he suffered for two months from a bullet that could not be removed, before dying. With the bulletins distributed nationwide by telegraph, published in the nations newspapers and followed closely by the public, the story of Garfields fight to survive could be considered Americas first live media event, historianRobert Mitchellwrites inThe Washington Post.

President Woodrow Wilsoncollapsed from exhaustion in 1919 during a national speaking tour, and we now know he suffered a stroke a month later that left him partially paralyzed. Americans didnt learn even basic facts about Wilsons health until he left office.

Not only were there no White House announcements, some historians now dub his wife Edith as the first female president given the 17-month stint in which she consulted with him on virtually all presidential business and screened all contacts and correspondence.

As USA TODAY noted in a story this week, in 1944 a similar scene played out whenPresident Franklin Delano Rooseveltwas diagnosed with acute congestive heart failurethat forced him into seclusion for months. The report noted that the country was in the midst of World War II and the U.S. military was in the final stages of preparing for the D-Day invasion that opened the second front in the war.

Similar national security concerns have been raised about press reports of the details on Trumps condition. Would terrorists or hostile nations seek advantage or perhaps plan an attack in the U.S. or abroad knowing the commander-in-chief of U.S. forces remained on the job even as we learned from journalists that he was hospitalized, or facing medication and treatment for high fever and low blood oxygen levels that could have reduced his ability to converse or process information?

There are two unique circumstances with Trumps illness that werent present even as recently as when President Ronald Reagan was wounded in a 1981 assassination attempt, or underwent colon surgery: A global, instantaneous, 24/7 news environment, coupled with todays pervasive social media.

Beyond the national security concerns, are there some health matters that should remain private and not placed openly before the planet either out of personal consideration or to avoid becoming distorted as election-year fodder?

And there is the often-harsh tenor and frequently unsourced/unverified content of social media. Even a brief sampling showed posts ranging from conservative speakers making unsupported claims that journalists were hoping Trump would die, to Trump opponents posting images comparing Trumps balcony salute as he returned from Walter Reed National Military Medical Center to similar poses struck by dictators such as Stalin, Hitler, Mussolini and Juan Peron. To be fair, there also were great numbers of well wishes, too.

Again, while the First Amendment save for actual physical threats protects what we could say online, even as it provides no limits or advice on what we should say.

A free-press issue of a different sort has erupted. On Monday, White House Press SecretaryKayleigh McEnanyrevealed she had tested positive for the virus. Various press reports said correspondents were angry they had been exposed during briefings and other meetings with her and other officials over the previous few days.

An unnamed reporter wasquoted inVanity Faironline saying, People are livid. There are a lot of us, like dozens of reporters, who feel its unsafe to be doing it the way its being done. CBS News Ben Tracy commented on Twitter: I felt safer reporting in North Korea than I currently do reporting at The White House. This is just crazy.

As of Tuesday, three journalists in the White House press pool had tested positive. In theVanity Fairreport, White House Correspondents Association PresidentZeke Miller, a reporter for The Associated Press, said that journalists at the White House have been mindful of these risks for months. At the end of the day, were there to keep the American people informed and to be their eyes and ears. That job needs to get done. Were assuming some of these risks, were there to do the job.

In the final analysis, performing that First Amendment job of being a watchdog on government even during a pandemic by reporting the facts, fairly and accurately, as they can be found, is the best medicine for a health democracy.

. . .

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at[emailprotected], or follow him on Twitter at@genefac.

More:

FIRST 5: Trump and COVID-19 -- How 'free' are/should we be? - Salina Post

Randy Brockway, Guest Columnist Published 4:00 p.m. CT Oct. 8, 2020

As Tennesseans who believe in truth, equality, and liberty, we cannot allow this Senate Bill 8005 to continue existing in its current form.

Randy Brockway(Photo: Submitted)

On Aug.20 Gov. Bill Lee quietly signed Senate Bill 8005 into law.

There was no public announcement, not even a tweet.

The lack of announcement signals that Gov. Lee knows this is a bad bill aimed at stifling Tennesseans First Amendment rights by enforcing unnecessarily harsh sentencing for protesters.

To understand the silence, the bill itself needs a bit of unpacking. At a high level, the bill calls for harsh sentencing for what are essentially acts that are protected by the First Amendment.

For example, an individual who is caught camping on state property can now be charged with a Class E felony which includes up to sixyearsin prison and loss of voting rights.

Hear more Tennessee Voices: Get the weekly opinion newsletter for insightful and thought provoking columns.

Due to the vagueness of this statute, in addition to preventing individuals from camping during a peaceful protest, a homeless person caught sleeping in a park, or a family setting up an evening or early morning picnic could potentially be charged in the same fashion.

In contrast, an individual would be charged with a Class A misdemeanor for simple assault on a first responder.

This bill implies it is a more heinous crime to camp on state property than it is to spit on, or physically push a first responder. Does that seem just? Do we truly value state property more than our first responders? One could assume so with the consequences as defined in this bill.

To add to the general vagueness of the bills intent, individuals or groups could be charged and handed a mandatory sentence for disturbing public meetings. This disturbance could be interpreted many ways, however the most obvious would involve being too loud.

For example, those who were peacefully assembling outside of the state capitol and requesting an audience with Gov. Lee, could be charged with a Class A misdemeanor.

The bill does call for harsher penalties for property damageas a result ofaggravated rioting and aggravated assault on a first responder. Rightfully so, the state is calling for this harsher sentencingin an attempt todeter these acts that would move a peaceful assembly or protest to an escalated situation, where bodily harm and property damage could be realized.

Despite the necessary components of this bill, the bill has very severe and questionable unintended consequences for individuals or groups that are exercising their First Amendment right to peacefully assemble and petition the government for a redress of grievances.

Does the majority Republican legislature recognize the potential unintended consequences of the bill? Are our elected officials intentionally trying to curb any sort of gathering that would be considered protected under the First Amendment of the United States Constitution?

It is likely we will never know the exact motivations of our elected officials and Gov. Lee with respect to Senate Bill 8005.However, it is clear that this bill needs to be repealed or amended, atminimum.

Autoplay

Show Thumbnails

Show Captions

As Tennesseans who believe in truth, equality, and liberty, we cannot allow this bill to continue existing in its current form.

Please write your district legislator urging them to raise a bill at the next General Assembly, which convenes in January of 2021, to repeal Senate Bill 8005 or, at a minimum, amend it.

Randy Brockway isDirector ofHuman Resources at ServiceSource and State Leader for Stand Up Republic Tennessee,residing in Franklin, TN.

Read or Share this story: https://www.tennessean.com/story/opinion/2020/10/08/tennessee-protester-law-must-repealed/5923364002/

See the original post:

Tennessee voting rights law needs to be repealed for the sake of civil liberty | Opinion - Tennessean