Editors Note: This is the first part of a two-part series on what Justice Department lawyers should do when asked to participate in politically-motivated prosecutions or investigations.

Last month, federal prosecutor Aaron Zelinsky testified before the House Judiciary Committee about why he withdrew from the Roger Stone case. Even as the country has become accustomed to the sustained push by President Trump and Attorney General William Barr to transform the Justice Department from an independent law enforcement agency into the Presidents personal law firm, Zelinksys testimony was remarkable. He recounted how he withdrew from the Stone case rather than sign on to a baldly political sentencing recommendation. In doing so, he modeled how a federal prosecutor should respond to direction from his politically appointed superiors to violate his oath of office and the Departments Principles of Federal Prosecution: by refusing to comply with and blowing the whistle on their unlawful actions.

But Zelinksy also sounded an alarm when he testified that his career supervisor in the United States Attorneys Office for the District of Columbia had encouraged him to go along with the recommendation. According to Zelinksy, his supervisor agreed that exercising political favoritism in the Stone case was unethical and wrong. Yet he advised Zelinsky that giving such favoritism to Stone was not the hill worth dying on, and that he should keep quiet rather than risk losing his job.

A Justice Department supervisor advising a line prosecutor to remain silent in the face of a politically motivated abuse of power is dangerously wrong. It is critical that the Departments career prosecutors understand that especially now.

As former career lawyers in the Justice Department, one a prosecutor in the Civil Rights Division and the other a veteran of the Office of Legal Counsel, we are concerned that the Attorney General is moving to extend his politicization of the Justice Department beyond defensive maneuvers to protect Trump and his friends from the consequences of their allegedly criminal actions which are inexcusable abuses of power in their own right to using criminal investigations and prosecutions as a weapon in the upcoming election, including by targeting Joe Biden. We are equally concerned that Barr will attempt to co-opt the Departments career prosecutors in unlawful politically motivated actions.

The signs that Barr is poised to weaponize criminal prosecutions are not subtle.

To assist our former colleagues in making what could be career-defining decisions about their own roles in these matters, the remainder of Part I of this two-part series provides an analysis of the law, ethical standards, and Justice Department policies on politically motivated prosecutions. It argues that criminal investigations tainted by political motivations and other actions (such as guilt-presuming public comments by government officials) that undermine a subjects right to a fair process or a fair trial are unconstitutional and inconsistent with the ethical obligations of Justice Department Prosecutors. Given the ongoing public interference by Barr in investigations and, in particular, the internal memo granting him exclusive authority over all potential criminal investigations of political candidates, any prosecution arising out of Durhams investigation or of Biden would meet that criteria.

Part II explains that Department prosecutors who encounter these presumptively unlawful prosecutions should respond as follows:

While the Justice Departments prosecutors are obliged to carry out the lawful agenda of its political leadership regardless of their personal views, their primary duty is honoring their own oaths to uphold the law and carrying forward the Departments mission to deliver equal and nonpartisan justice. Prosecutors cannot break the law or enable misconduct in order to do what the administration wants, and their actions will follow them long after the Trump administration has ended.

Given the degree to which this administration has already politicized the Department and tainted ongoing investigations, the Departments prosecutors should be immediately ready to follow in Zelenskys footsteps when asked to act unlawfully or ignore apparent abuses of authority. The Departments institutional integrity, the integrity of our next election, and their own reputations and future career prospects will depend on what they do.

The Laws and Rules Prohibiting Political Prosecutions

A federal prosecutors overarching duty is not that [she] shall win a case, but that justice shall be done. Berger v. United States. A civil servants oath of office likewise requires her to support and defend the Constitution of the United States. Federal prosecutors are thus much more than lawyers for a party to a dispute. As representatives of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, they are the guardians of the constitutional and legal rights of everyone who crosses their paths, and of our constitutional system of administering justice.

The Constitution, the Justice Departments Principles of Federal Prosecution, and the ethical standards governing the conduct of prosecutors together prohibit a prosecutor from pursuing an investigation or prosecution that is or even appears to be politically motivated, or that violates the accuseds right to fundamental fairness in the administration of justice.

Article II of the Constitution

Article II sets out the powers and duties of the presidency and requires the president to oversee federal agencies and exercise federal power in the public interest. President Trump believes that the executive power found in Article II of the Constitution gives him the power to do whatever [he] wants,but he is wrong. Article II does not confer monarchical powers, but instead embodies the profound presidential obligation to take care that the laws are faithfully executed. The presidents oath, also found in Article II, likewise requires that the president faithfully execute the office. This is a fiduciary duty that prohibits the president from weaponizing the Justice Department the governments primary law enforcement agency to serve his personal interests.

On the contrary, this fiduciary duty to act faithfully requires the president to safeguard the Departments independence from political influence and to refrain from interfering in specific party enforcement matters to further the presidents own interests. The president violates this duty when he or she comments on the status of criminal investigations or the guilt or innocence of the subjects of those investigations, or directs the prosecution of particular individuals, particularly to benefit himself or herself. The Take Care Clause and the oath of office also require the president to uphold the Constitutions other provisions, namely the Bill of Rights, which in turn further limits presidential authority (as discussed below).

When a president flouts these Article II duties, it carries special significance for the Justice Departments prosecutors, who take their own oaths of office and who stand in the presidents shoes when exercising the Departments prosecutorial discretion. Indeed, the prosecutorial discretion exercised by Department attorneys, as described in its Principles of Federal Prosecution, exists by virtue of the prosecutors status as a member of the Executive Branch, and the Presidents responsibility under the Constitution to ensure that the laws of the United States be faithfully executed.

The Due Process Clause

The foundation of the American criminal justice system is due process of law, which requires law enforcement officers and prosecutors to safeguard fundamental fairness in the administration of justice that is, the presumption of innocence and a fair process by which an individual is investigated, charged, and tried. If an investigation or prosecution does not or cannot provide due process for its subjects, the Departments lawyers are duty-bound to stop it in its tracks. Among the myriad ways the government can violate due process are through vindictive uses of its law enforcement powers and through public comments on the purported guilt of a subject that impair the presumption of innocence and right to a fair trial.

A vindictive investigation or prosecution is a due process violation of the most basic sort. Bordenkircher v. Hayes. The Supreme Court has held that prosecutors cannot pursue cases out of vindictiveness, meaning that they cannot use their law enforcement powers to punish someone solely out of animus or solely from [an] exercise of a protected legal right. United States v. Goodwin. Vindictiveness can be shown through direct evidence, such as a statement by the prosecutor evidencing the vindictive motive. It can also be shown when: (1) the prosecutor harbored genuine animus toward the defendant, or was prevailed upon to bring the charges by another with animus such that the prosecutor could be considered a stalking horse, and (2) [the defendant] would not have been prosecuted except for the animus. United States v. Koh.

The denial of a trial by an impartial jury a right the Supreme Court called the most priceless safeguard for the preservation of liberty, Irvin v. Dowd also violates due process, in addition, of course, to the Sixth Amendment. Likewise, the Supreme Court has made clear that preserving the presumption of innocence is a basic component of a fair trial under our system of criminal justice. Estelle v. Williams. An investigation in which government personnel, most especially the President or the Attorney General, say or do things that compromise the subjects presumption of innocence in the eyes of a jury denies this fundamental right. Because courts must carefully guard against dilution of the principle that guilt must be established by probative evidence presented to the jury in the courtroom, id., courts can set aside indictments and verdictson due process grounds when the government improperly comments or creates publicity in a manner that prejudices the accuseds presumption of innocence, including by offering unsolicited personal views on the evidence. United States v. Young.

The Justice Department recognizes the danger of treading on due process and impartial jury rights in its media policy, which largely prohibits Department personnel from commenting on ongoing cases in order to avoid undue prejudice to the subjects of criminal investigations. No comments could be more prejudicial to a subjects due process rights than those that come from Trump himself because, as the Supreme Court has recognized, the President possesses an extraordinary power to speak to his fellow citizens and on their behalf. Trump v. Hawaii. An investigation launched against someone whom the president has already publicly denigrated and pronounced guilty, thus presumptively poisoning the prospective jury pool, would be virtually impossible to conduct in a manner that is consistent with a prosecutors duty to protect the rights of the accused to due process and a fair trial. While courts can sometimes cure prejudice by changing the venue for a trial, or through a jury selection process that removes people who have heard too much about a case, it is difficult to imagine a means of escape from the prejudicial publicity generated by the President of the United States trying a case on Twitter.

The First Amendment

Our democracy is founded on every persons right to dissent against the government and freely express and associate with others who share their political views. The First Amendment safeguards this bedrock principle by prohibiting the government from retaliating against individuals for their political views or affiliations. Heffernan v. City of Patterson, N.J. A prosecution brought in retaliation for the subjects political expression clearly violates the First Amendment. Hartman v. Moore. The Supreme Court has yet to reach the question of whether a retaliatory investigation (prior to or in lieu of filing charges) violates the First Amendment on its own, but this is a logical extension of the Courts decisions on retaliatory prosecutions. The governments use of its law enforcement powers to launch a criminal investigation to punish political expression can be as damaging as the filing of charges, especially if the investigation is publicly announced. For that reason, the majority view in the appellate courts is that retaliatory investigations do violate the First Amendment.

Justice Department Rules and Prosecutorial Ethics

Prosecutors ethical duties, which they must follow in order to maintain their law licenses, are in key respects broader than their legal duties. They require prosecutors to maintain fairness, and the appearance of fairness, in the legal system, in addition to adhering to the strict letter of the law.

Accordingly, the Justice Departments Principles of Federal Prosecution are founded on the premise that the Departments prosecution power should be exercised in service of the fair, evenhanded administration of the federal criminal laws. The federal governments Standards of Ethical Conduct for Employees of the Executive Branch also require all employees to act impartially and not give preferential treatment to any private organization or individual and to endeavor to avoid creating the appearance that they are violating the law or the ethical standards.

Taken together, the various ethical rules and standards that govern prosecutors conduct collectively prohibit prosecutors from advancing politically motivated investigations or those that appear to be politically motivated. The command to ensure fair and evenhanded justice facially conflicts with selecting defendants based on their political views or their opposition to any particular political leaderor because the President wants them to be prosecuted to advance his personal political agenda. In fact, the Departments Justice Manual specifically designates political association, activities, or belief[s] as impermissible considerations in initiating or declining criminal charges. Indeed, the principle that such considerations are improper was the basis for the Office of Inspector General recent reviewsof the handling of the 2016 investigations of the Clinton email case and the Trump campaigns role in Russian interference in the 2016 election.

The American Bar Associations (ABA) Criminal Justice Standards for the Prosecution Function likewise contain multiple provisions that counsel prosecutors not to act or appear to act based on the political views, associations, or beliefs of a subject, or their own (or those of their political superiors). These include the overarching admonition that: A prosecutor should not use . . . improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion. The ABAs standards also condemn prosecutors making, causing, authorizing, or condoning public statement[s] that the prosecutor knows or reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding or heightening public condemnation of the accused.

Compromised Prosecutions

Trump and Barrs actions toward and statements about Joe Biden and the subjects of the Durham investigation run afoul of the constitutional provisions and ethical standards governing the conduct of Justice Department lawyers outlined above. The magnitude of these violations would render nearly any potential prosecution of the targets of this conduct fatally compromised, and the Departments prosecutors should treat any such action as presumptively unlawful.

As noted above, President Trump has both demanded prosecutions of Joe Biden and the agents who participated in the 2016 Russia investigation, and repeatedly and publicly proclaimed them guilty. Barr has likewise commented on the ongoing Durham investigation multiple times and opined that its subjects have committed crimes. In addition, Trump has openly complained that the Russia investigation was politically motivated, in spite of the Justice Department Inspector Generals contrary finding, and denounced the political opinions privately expressed by some of the investigators, and even the political leanings of their family members.

With all of this in mind, any prosecutor who participates in an investigation or prosecution brought against a federal agent involved in the Russia investigation, Joe Biden, or any other perceived or actual political opponent of the President who he or the attorney general have publicly denounced, will be in serious jeopardy of violating her oath to uphold Article II, the due process clause, and the First Amendment. Likewise, any prosecution or official announcement of wrongdoing against anyone Trump and Barr have publicly impugned would likely create the appearance of impropriety under the rules and ethical standards governing the Departments prosecutors.

In sum, Attorney General Barrs politicization of the Justice Department by interfering directly in (or instigating) investigations and prosecutions in ways that favor President Trump and seek to punish his perceived opponents is prohibited by several provisions of the Constitution and the ethical norms that guide prosecutors in discharging the duties of their profession. Barr has come under sustained criticism for his actions and calls for him to face various forms of accountability, from impeachment to professional disciplinary action.

But Barr will not be alone in facing accountability if the Departments prosecutors acquiesce in or enable his efforts to pursue unconstitutional politically motivated prosecutions. As difficult as it can be to stand up to illegal conduct by the nations chief law enforcement officer and his politically appointed subordinates, the Departments career personnel must answer to the Constitution and their oaths. They are not free to be accomplices or bystanders in the face of clear assaults on the rule of law, and their duties are magnified by the role politically motivated prosecutions could play in undermining the fairness of the upcoming election.

In the next part of this two-part series, we lay out a roadmap for how prosecutors should analyze a presumptively unlawful investigation or prosecution and what they should do when faced with a request to participate in such a case.

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Politically-Motivated Prosecutions Part I: Legal Obligations and Ethical Duties of Prosecutors - Just Security

Dan Hils, Cincinnati Fraternity of Police president, speaks during a press conference called by the FOP on Monday, June 22, 2020, in Over The Rhine. (Photo: Albert Cesare / The Enquirer)

Cincinnati's police union is expected to vote Monday on whether to set in motion a change to their legal counsel and perhaps take a more assertive stance on defending officers in the public sphere.

Police union president Sgt. Dan Hils told the Enquirer Monday that meeting, like all police union meetings, will not be open to the public.

"It is clear that police are under the microscope and under fire by radical organizations that wish to do us harm, and we are all working together to ensure that we have the best representation possible," he said.

Hils said he envisions a legal strategy that potentially involvessuingthe media and organizationsif they libel or slander police.

"I believe the FOP must respond when its members are defamed or harassed or put in danger by those who wish to do us harm," Hils said.

Hils said police officers have been targeted for harassment, false accusations and doxxing by"antifa and other similar Marxist organizations assisted by left-wing media."

"Being critical of your government, including police, is a first amendment right that we protect," Hils said. "But slandering our members deserves a response."

The union already has a contract withCincinnati lawyer Steve Lazarus and his firm, Lazarus and Lewis, who have represented the police union for 31 years.

The Enquirer reported last week thatHilsis pushing the FOP to hire a new Cincinnati firm, led by Zachary Gottesman and a former city attorney, Peter Stackpole, which he says will be more aggressive.

According to that report, the union's executive board disagrees with Hils and wants to keep its current representation, a contract that Hils signed off on.

Stackpole told The Enquirer Monday: "This is a big decision and I think the police officers deserve to be heard."

However, Monday's vote will not immediately change who handles the union's legal matters.

It is expected that the membership will vote on whether tooverturn the executive board's decision and the board's decision to disqualify Stackpole and Gottesman. The membership could then move to allow a department-wide vote on its legal counsel.

According to a Facebook post by Stackpole, that vote would then be held sometime in the next 45 days. He also invited officers to meet with him prior to Monday's meeting.

The decision on legal counsel could set the tone for how the union responds to calls for police reform.

The Sentinels, a group of Black officers who for 50 years have advocatedcommunity policing through diversity, want to keep Lazarus.

In a letter to Hils for the Sentinelsshared with The Enquirer, that group's leadership saidto replace Lazarus with Gottesman is "repugnant to the Sentinels and contrary to the interest of the entire membership."

Louis Arnold, a Cincinnati police officer and president of the Sentinels association, said his members are also members of the fraternal order of police. He said they aren't opposing this action to defend Lazarus, but to oppose Gottesman.

"We're fighting because Gottesmanhas sued the Sentinels and he has sued two members of the Sentinels police association," Arnold said.

On Facebook, Stackpole said the Sentinels were added to a lawsuit only so they could be a party to the result of the suit. He said Sentinels were dropped from the suit after they said they did not want to be a party.Arnold does not see it that way.

"How can he represent us when he has sued our organization and members of our organization?" Arnold said. "We don't think he can represent our members and we don't trust him to do that."

The Enquirer will update this story if information about the result of the vote is available Monday night.

[ The Enquirer is dedicated to local journalismWe cant do this work without your support. Please consider a digital subscription to Cincinnati.com. ]

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Police union expected to vote on legal representation - The Cincinnati Enquirer

Hitler had his Brown shirts and Mussolini had his Black shirts, now Donald Trump has his camouflage shirts. Thus began a statement signed by 15 distinguished interdenominational religious leaders in Chicago that I joined, including ministers, priests, and rabbis.

Comparisons to Hitler are always explosive, but the comparison is apt. Hitlers bullyboys, the statement continues, operated on the fringes or outside of the law to violently intimidate Germanys leftists and finally to exterminate Jews. Trumps bully boys are operating on the fringes or outside the law to violently intimidate Americas progressives and people of color who are exercising their First Amendment right to protest racial injustice.

Portland, Oregon, provides the model. Trump dispatched untrained, unidentified, camouflage-wearing, military-uniformed, no name-tagged bullyboys who are literally kidnapping protesters, stuffing them in unidentified vans, taking them to unknown locations without charges and against the wishes of local law enforcement officers the mayor of Portland and the governor of Oregon.

Trump has announced that he will send similar teams to Chicago, New York, Detroit, Atlanta, Baltimore and other liberal Democrat-run cities, to use his phrase. The excuse is to defend federal property. The reality is that this is a cynical re-election ploy. As Portland shows, Trumps gambit will spark a large, hostile reaction which The excuse is to defend federal property. The reality is that this is a cynical re-election ploy.

Chicago Mayor Lori Lightfoot has warned Trump not to try this in Chicago. [N]o troops, no agents that are coming in outside of our knowledge, notification, and control that are violating peoples constitutional rights. Lightfoot told CNNs Jake Tapper on Sunday during an appearance on State of the Union. We cant just allow anyone to come into Chicago, play police in our streets, in our neighborhoods, when they dont know the first thing about our city. Thats a recipe for disaster. And thats what youre seeing playing out in Portland on a nightly basis.

We support her resistance and the opposition expressed by the Pentagon, members of Congress, former U.S. military officials, historians and constitutional scholars to Trumps effrontery.

We dont need the presidents thugs in Chicago, but we would like real federal assistance. While overall crime has decreased compared to last year, violent crime particularly murders and shootings has soared.

Chicago has no gun shop and no gun range. The guns come from outside of Chicago, generally across the border from Indiana. We need common sense regulations on guns to stop the pipeline into Chicago. Trump could help because it is Republicans and the gun lobby that stands in the way.

Real federal assistance wouldnt be dispatching bullyboys to terrorize citizens exercising their First Amendment rights. It would help with jobs and training for the young. It would help with rent and mortgage forgiveness during the pandemic lockdown when people cant work. If Trump and Senate Republicans dont act immediately, literally millions will be on the verge of eviction.

We need real investment in our schools, so the savage inequality with suburban schools can be reduced. We need health care to be a right, not a privilege, and at the very least for the federal government to cover all medical expenses related to COVID-19. In a pandemic, we all have a stake in ensuring that the sick can afford to get the treatment they need.

Our sons and daughters volunteer to serve in the military. When Vladimir Putin puts a bounty on the heads of our soldiers, we need Trump to defend them, not to ignore the attack.

Trump scorns real assistance to cities. He scorns meeting with our elected leaders before announcing that he plans to dispatch his thugs to our city. And he disgraces our democracy with this cynical and dangerous campaign ploy.

Black Lives Matter Chicago and other organizations are going to court to get an injunction to prohibit Trumps agents from interfering in or otherwise policing lawful and peaceful assemblies and protests in Chicago.

The religious leaders who issued the statement pledged that if Trump dispatched bullyboys to Chicago without the permission of the mayor, they would be met with a massive, disciplined, nonviolent ... march of resistance. We will not let the president trample our Constitution, suppress our rights, and terrorize our citizens with impunity.

Follow Rev. Jesse Jackson on Twitter @RevJJackson

Send letters to letters@suntimes.com

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We dont need Trumps thugs in Chicago - Chicago Sun-Times

Art Industry News is a daily digest of the most consequential developments coming out of the art world and art market. Heres what you need to know on this Monday, July 27.

Conservative Group Sues Over New Yorks BLM Mural A conservative group, Women for America First, is suing New York mayor Bill de Blasio over the giant Black Lives Matter mural he helped paint in front of Trump Tower. After it was unveiled, the group claims they asked to paint their own mural, which would read Engaging, Inspiring, and Empowering Women to Make a Difference! in a similar size and location. By denying them, they say, the mayor is violating their First Amendment right and pandering to the Black Lives Matter movement to serve his own political ambitions. (Courthouse News)

Tenement Museum Lays Off 76 Employees The Tenement Museum in New Yorks Lower East Side laid off all 71 part-time members of its education staff last weekapproximately 92 percent of the department. Hourly employees from the retail, marketing, and visitor services divisions were also let go. (Last spring, employees in these departments voted to unionize and were in the midst of negotiating their first contract.) Although the museums president, Morris Vogel, took a 99 percent pay cut when the shutdown began, the museum anticipates a 50 percent budget reduction in 2021. (Artforum)

Pace Is the Latest Gallery to Lay Off Staff Pace Gallery laid off a portion of its furloughed employees on Thursday, citing the economic situation caused by the global pandemic. Around 20 staff members were let go, including senior director Simon Preston, the New York dealer who joined Pace last year after shuttering his own gallery. This decision was taken after every other measure to ensure we are prepared for an extended period of financial uncertainty and to protect as many jobs as possible in the long-term, a spokesperson said. Pace is one of a number of top dealers making cuts: earlier this month, David Zwirner Gallery laid off nearly 40 employees, citing a projected 30 percent drop in sales. (ARTnews)

Newly Unearthed Diary Entries Reveal Francis Bacons Private Obsessions Previously unseen diary entries about the early life of British painter Francis Bacon reveal the artists fleeting fixation with Nazi culture. Taken from the journal of his cousin and confidante Diana Watson, the pageswhich have been acquired by Bacons estate and are excerpted in a new book,Inside Francis Bacondetail the artists fascination withHermann Gring and Nazi regalia. Still, the books author Martin Harrison says, he was never really a fascist sympathizer. How could he be, as a gay man? (Guardian)

Ken Griffins $100 Million Basquiat Goes on View in Chicago Jean-Michel Basquiats monumental canvas Boy and Dog in a Johnnypump(1982), which made headlines when Chicago billionaire Kenneth C. Griffin bought it privately for $100 million earlier this year, will go on view at the Art Institute of Chicago when it reopens after a four-month closure on Thursday. Griffin says the work will remain on public display for the foreseeable future. (Chicago Tribune)

Phillips Plans a Lower-Priced Contemporary Sale The second iteration of Phillipss online HEATWAVE sale, which runs through July 30, includes 75 lots priced between just 200 ($257) and 50,000 ($64,284). The lower-priced offering is part of the auction houses efforts to draw in emerging collectors. (Art Market Monitor)

Chilean Artist Lotty Rosenfeld Dies at 77 The artist is best known for installing a simple white line on a Chilean street in 1979an act that served as a revered artistic and political intervention against the countrys oppressive government. She has died at age 77, from lung cancer. (ARTnews)

California African American Museum Hires New Curators Taylor Renee Aldridge, a writer and independent curator formerly based in Detroit, has been named visual arts curator; Susan D. Anderson, the former director of public programs for the California Historical Society, will take on the role of history curator at the LA institution. (Artforum)

Adam Budak Heads to Kestner Gesellschaft The esteemed director of the National Gallery in Prague will head to HannoversKestner Gesellschaft in November. (Monopol)

Man Charged With Smuggling Syrian Mosaic A Southern California man has been charged with illegally transporting what is believed to be looted artwork from Syria. The man falsely claimed that he was importing vases and other Syrian works worth less than $3,000. Instead, authorities found a valuable 3rd or 4th century A.D. mosaic depicting the Greek demigod Heracles.(Courthouse News)

Erdoan Leads First Prayers at Converted Hagia Sophia Some 350,000 people arrived at the Hagia Sophia to join Turkish presidentRecep TayyipErdoan in the first prayers at the historic site since it was converted back into a functioning mosque earlier this month. Christian mosaics were covered with curtains for the duration of the prayers. (Guardian)

The Metropolitan Museum of Art Has a Duck Fam Local fauna are taking up residence in the empty Met, which remains closed to the public until the end of August. A duck has decided that the museums glorious rooftop is a good nesting spot for her and her babies. The museum is now asking the public to help name its fuzzy new friends. We assume Duckminster Fuller is already in the mix. (Instagram)

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Art Industry News: Pace Becomes the Latest Gallery to Lay Off Staff as It Enters an Extended Period of Financial Uncertainty + Other Stories - artnet...

By Noah Biesiada | July 24, 2020

Irvine Mayor Christina Shea is being sued for a violation of her constituents First Amendment rights after blocking several residents on her FaceBook page who criticized her posted opinions on the Black Lives Matter movement and defunding the police force last month.

In a since-deleted post, Shea said that she had received emails from members of Black Lives Matter asking to reduce police funding and move the money to help support homeless programs and other community issues, but that she would not support that move.

We have been named one of the Safest Cities in America for 15 years in a row and I will not agree to reduce our public safety funding especially after seeing the violence we have endured as a nation this past week, Shea said.

Later that day, Shea also posted another comment that criticized a peaceful protest outside city hall, saying they were yelling very rude comments, and that a residents car was hit by one of the protestors.

Protesters in the street blocking traffic and we are being asked to lessen public safety? Shea said.

The posts received over 150 comments with a variety of opinions, but Shea blocked several that disagreed with her post.

One of the blocked commenters was Lamar West, an Irvine resident and software designer, who has called attention to the issue from both the Thurgood Marshall Bar Association, Orange Countys only Black bar, and the law firm Baum, Hedlund, Aristei & Goldman who are representing him in the suit against Shea.

Like other educated people have mentioned its okay for you to support the movement and not defund the police but you dont want to do either, West said in his comments. I can hear the racist ancestors of yours in this post and its sickening. Enjoy your position while it lasts.

The primary argument in the case is over whether elected officials social media pages function as a public forum, and multiple legal organizations have said that if it is open to the public and used by a politician to discuss policy then it cannot be censored.

One of the cases frequently referenced by legal experts is Knight First Amendment Institute v. Trump, a case from 2018 that saw the President sued for attempting to block commenters on his personal Twitter page that he regularly uses to discuss public policy.

The ruling in the case found that Trumps decision to make the page public and use it as an official mouthpiece of his administration meant that commenters were entitled to voice their opinions in the comments.

The Knight First Amendment Institute was also one of the groups who asked Shea to unblock commenters.

Shea declined to comment, saying she had not reviewed the filing yet.

In the past, Shea has repeatedly defended her actions on the page, saying that it is her personal Facebook page and that she has a right to control what content is there, and that many of the accounts she blocked were fake.

My family goes on that page, my grandchildren do and theyre not going to be reading that stuff, Shea said in a phone call with Voice of OC last month. They were calling me racist, using obscenities, they were threatening me, and I took the post down and I was told I have every right to do that on my private page.

Karl Olson, a First Amendment and media lawyer from San Francisco, said that while social media functions as a bit of a grey area, Sheas page does follow the guidelines of a public forum.

Part of its an issue with what you can do with Facebook, and part of its a legal area, and thats why it is a grey area, Olson said. For someone to call her a racist, thats generally opinion. I think if you want to be the mayor of a city that kind of comes with the territory.

Other politicians in Orange County, including congressional candidate Greg Raths, have faced similar criticism from commenters, with renewed calls for open access to their pages.

The case is set to move to court on Aug. 24, with West filing a preliminary injunction against Shea that would force her to unblock him and other constituents for the duration of the case if approved by a judge.

Noah Biesiada is a Voice of OC Reporting Fellow. Contact him at nbiesiada@voiceofoc.org or on Twitter @NBiesiada.

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Irvine Mayor Sued Over Facebook Blocking And Deleting Of Comments - Voice of OC