Age-related cognitive decline reversed in mice by fighting inflammation in the brain – ZME Science

As mammals age, inflammation levels increase. Im not talking about painful reactions to wound or infection, but rather a more low-key, grinding, background inflammation that grows increasingly intense the longer we live. This growing inflammation has been associated with diabetes, high blood pressure, frailty, cancer, and just about every chronic health problem we tend to see in old age. This also includes cognitive decline and, at least in this case, scientists believe that it can be reversed through managing inflammation in the brain, as studies on mice have shown.

Researchers at the University of Brighton in the UK found that microglia a specialized population ofmacrophage-like cells in the central nervous system, which act as immune cells that defend the brain and spinal cord from foreign invaders are very vulnerable to changes in the levels of inflammation, particularly to a molecule called prostaglandin E2(PGE2).

When this molecule was in high amounts, the microglia had trouble carrying out their normal cellular processes and related cells didnt generate energy as well as they could.

Levels of PGE2 naturally increase with age in our cells and those of other mammals due to the growing number of senescent cells. These dysfunctional cells cannot divide anymore and their presence causes the release of PGE2, as well as other inflammatory molecules.

But theres a way to reverse this process. Writing in the journal Nature, scientists described how PGE2 exerts its effects on cells by interacting with the EP2 receptor on the macrophages, another important type of white blood cell.

When these white blood cells were treated in the lab with drugs that turned this receptor off, the cells recovered. Moving away from the petri dish, the researchers replicated the experiment on mice.

The researchers genetically modified rodents that lacked the EP2 receptor and simply waited for them to grow old (the average lifespan of a mouse kept in captivity is two years). They then tested the cognitive abilities of these elderly mice by subjecting them to a barrage of tests, including navigating mazes and object location tasks.

Strikingly, the researchers found that the old genetically modified mice could learn and remember things just as well as their young counterparts. The same effects were replicated in old, normal mice that werent genetically modified but which received drugs that turn the EP2 receptor on or off.

Essentially, this series of experiments shows that suppressing the PGE2 receptor may represent an important target for treating and maybe even reversing age-related cognitive disorders. Or at least that seems to be the case in mice. Clinical trials in the future on humans may shed more light.

In the meantime, research has shown that foods such as blueberries, strawberries, and spinach improve cognition in both older mice and people. These foods are rich in fisetin, quercetin, and resveratrol, which are known to flush senescent cells out of the body. One possible mechanism by which they may achieve this is by blocking PGE2 at the cellular level. So until more research can offer more straightforward answers, stock up on that spinach.

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Cognitive decline due to ageing can be reversed in mice here’s what the new study means for humans – The Conversation UK

The ageing global population is the greatest challenge faced by 21st-century healthcare systems. Even COVID-19 is, in a sense, a disease of ageing. The risk of death from the virus roughly doubles for every nine years of life, a pattern that is almost identical to a host of other illnesses. But why are old people vulnerable to so many different things?

It turns out that a major hallmark of the ageing process in many mammals is inflammation. By that, I dont mean intense local response we typically associate with an infected wound, but a low grade, grinding, inflammatory background noise that grows louder the longer we live. This inflammaging has been shown to contribute to the development of atherosclerosis (the buildup of fat in arteries), diabetes, high blood pressure , frailty, cancer and cognitive decline.

Now a new study published in Nature reveals that microglia a type of white blood cells found in the brain are extremely vulnerable to changes in the levels of a major inflammatory molecule called prostaglandin E2(PGE2). The team found that exposure to this molecule badly affected the ability of microglia and related cells to generate energy and carry out normal cellular processes.

Fortunately, the researchers found that these effects occurred only because of PGE2s interaction with one specific receptor on the microglia. By disrupting it they were able normalise cellular energy production and reduce brain inflammation. The result was improved cognition in aged mice. This offers hope that the cognitive impairment associated with growing older is a transient state we can potentially fix, rather than the inevitable consequence of ageing of the brain.

Levels of PGE2 increase as mammals age for a variety of reasons one of which is probably the increasing number of cells in different tissues entering a state termed cellular senescence. This means they become dysfunctional and can cause damage to tissue by releasing PGE2 and other inflammatory molecules.

But the researchers also found that macrophages another type of white blood cells related to microglia from people over the age of 65 made significantly more PGE2 than those from young people. Intriguingly, exposing these white blood cells to PGE2 suppressed the ability of their mitochondria the nearest thing a cell has to batteries to function. This meant that the entire pattern of energy generation and cellular behaviour was disrupted.

Although PGE2 exerts its effects on cells through a range of receptors, the team were able to narrow down the effect to interaction with just one type (the EP2 receptor on the macrophages). They showed this by treating white blood cells, grown in the lab, with drugs that either turned this receptor on or off. When the receptor was turned on, cells acted as if they had been exposed to PGE2. But when they were treated with the drugs that turned it off, they recovered. Thats all fine, but it was done in a petri dish. What would happen in an intact body?

The researchers then carried out one of the cleanest experiments it is possible to perform in biology and one of the best reasons for working on mice. They took genetically modified animals in which the EP2 receptor had been removed and allowed them to grow old. They then tested their learning and memory by looking at their ability to navigate mazes (something of a cliche for researchers) and their behaviour in an object location test. This test is a bit like someone secretly entering your house, swapping your ornaments around on the mantelpiece and then sneaking out again. The better the memory, the longer the subject will spend looking suspiciously at the new arrangement, wondering why it has changed.

It turned out that the old genetically modified mice learned and remembered just as well as their young counterparts. These effects could be duplicated in normal old mice by giving them one of the drugs that could turn the EP2 receptor off for one month. So it seems possible that inhibiting the interaction of PGE2 with this particular receptor may represent a new approach to treating late-life cognitive disorders.

There is a long way to go before we are in a position to start using these compounds in humans even though the prostaglandin systems are very similar. But this study has shed light on a fascinating set of observations linking diet and cognition.

It has been known for some years that eating blueberries and other fruit and vegetables, such as strawberries and spinach, improves cognition in rodents and older people. These foods are rich in molecules such as resveratrol, fisetin and in quercetin, which have been shown either to kill or rescue senescent cells.

There is also evidence that they block PGE2 at the cellular level, providing another route by which these compounds may exert their beneficial effects. Until something better comes along, this is one more piece of evidence that a bowl of fruit wont do you any harm. Though its probably wise to go easy on the cream.

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Cognitive decline due to ageing can be reversed in mice here's what the new study means for humans - The Conversation UK

Caudalie is at the Center of (Another) Anti-Competition Probe Over Resale Price Fixing – The Fashion Law

Lawmakers and regulators across the globe are not back down from their focus on competition in the marketplace. While big tech has firmly taken center stage, other efforts have been underway, as well, from the Federal Trade Commissions move to block mergers between buzzy direct-to-consumer brands and consumer goods conglomerates in the U.S. to national governments in Europe and the European Commission, alike, exhibiting increased scrutiny when it comes to anti-competitive restraints in agreements between companies and their authorized and unauthorized distributors.

In that same vein, French skincare brand Caudalie is at the heart of a probe by the Belgian Competition Authority (BCA) after the regulator received a complaint from a Belgian store owner that his Caudalie supplier was imposing a strict pricing policy on his subsequent and authorized sale of the companys products. Fast forward to November 20, 2020, and the Belgian competition prosecutor submitted a proposal for a decision in the matter.

According to the proposal, the prosecutor asserted that the minimum resale price requirement that Caudalie has imposed upon the distributor within its selective distribution network, and the Paris-based brands limitation of online sales by its distributors to consumers established in another EU member state run afoul of Article IV.1 of the Code of Economic Law, and Article 101 of the Treaty on the Functioning of the European Union (TFEU), the latter of which bars agreements that aim to restrict, prevent or distort competition within the EU and [that] have an effect on trade between EU member states.

In accordance with the competition law rules as set out in the EU Vertical Agreements Block Exemption Regulation (VBER) and the corresponding the Guidelines on Vertical Restraints, ALTIUS attorneys Carmen Verdonck and Nina Methens state that distributors must always be allowed to freely determine their sales prices, and any agreements between a supplier and its distributor, which directly or indirectly establish a fixed or minimum price or price level to be observed by the distributor when reselling a product to its customers (such as a maximum discount level) are strictly forbidden, as they artificially encourage higher pricing.

Moreover, VBER and the Guidelines also require that companies that maintain a selective distribution system may not prevent distributors operating at the retail level from engaging in active and passive sales towards end users. In other words, Verdonckand Methen assert that distributors must be free to sell, both actively and passively, to all end users, including online. Should a company run afoul of any of these rules, it is considered to be a hardcore vertical restriction that does not benefit from VBERs safe harbor. (VBER establishes the conditions in which a vertical agreement may be considered an exemption under Article 101(3) of the TFEU). Therefore, such an agreement will likely be considered to run afoul ofcompetition law, and be invalid.

For Caudalie specifically, theprosecutors proposed decision will now go before the BCAs Competition College for consideration in furtherance of what Verdonckand Methen say may be the start of another long legal battle for Caudalie. After all, This is not the first time that Caudalie has had to defend itself in competition law cases, they note, pointing to its relatively recently-resolved 5-year-long legal battle with eNova, the operator of online platform 1001pharmacies.com.

In that case, Caudalie filed suit against eNova in April 2013 after it discovered that its products from its Beauty Elixir serum and Vinoperfect Brightening Solution to its Resveratrol-Lift Cream and Instant Detox Mask were being sold on the companys online marketplace site. Responding to Caudalies complaint, eNova argued that Caudalies selective distribution agreements, which explicitly provided that its products could only be sold online by its authorized distributors on their own websites (and thus, not on third-party platforms, such as eNova or Amazon), violated EU competition law, which prohibits such sweeping bans unless they can be objectively justified.

In July 2018, following a decision from the French Supreme Court, the case went back before the Paris Court of Appeal for s second time. This time around, the appeals court held that the marketplace ban in Caudalies selective distribution agreements was, in fact, valid. Guided by the Court of Justice for the European Unions December 2017 decision in the Coty v. Parfmerie Akzente case, in which the court determined that luxury brands may restrict the sale of their goods on third-party online platforms by way of selective distribution systems in order to preserve the quality of their products, the court sided with Caudalie.

Just as in the Coty case, the Paris Court of Appeal determined that Caudalies marketplace ban was necessary in order to preserve the luxury image of it products. Given the absence of any contractual relationship that would oblige 1001pharmacies.com and eNova to comply with Caudalies quality requirements, and given the fact that 1001pharmacies.com was displaying Caudalies products in close proximity to products that had no connection with the cosmetic sector (e.g., fire alarms and video surveillance cameras), the court held that such ban was necessary and proportionate to preserve the products luxury image, Reed Smith stated in a client note at the time.

While eNova attempted to argue that Caudalies application of selection criteria was discriminatory as Caudalie had not initiated proceedings against other platforms, the court was unpersuaded, as Caudalie was able to show that it had initiated proceedings against Amazon on the same basis, as well. As such, the Paris Court of Appeal confirmed the lower courts decision, and ordered that eNova immediately and permanently refrain from offering Caudalie products on its site.

The timing of the newly-initiated Caudalie proceedings in Belgium is striking, as the European Commissionis currently in the midst of assessing the rules contained in VBER and the corresponding Guidelines on Vertical Restraints, which are slated to lapse in 2022. The rules that currently apply to resale price maintenance and active and passive sales are on the commissions radar, according toVerdonckand Methen, who note thattheir concrete application may consequently be adapted or further elaborated on in the commissions ongoing assessment process, which could come as a welcome development for luxury brands that are increasingly seeking to limit how and where their products are sold.

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Caudalie is at the Center of (Another) Anti-Competition Probe Over Resale Price Fixing - The Fashion Law

Is the populist tide ebbing? Despite Donald Trumps impending departure, growing global populism is still po – The Times of India Blog

Donald Trumps departure from office on Wednesday, after his historic second impeachment, will be welcomed by many who decry the rise of global populism. Yet Trump is a symptom, not a cause, of populism whose rise may continue into the 2020s fuelled by the aftermath of the coronavirus crisis.

As of 2020, some 2 billion of the worlds population was governed by populist leaders, including the more than 300 million US populace, according to academic research from the Global Populism Database a comprehensive tracker of populist discourse. That data, from an international network of academics, analysed speeches through textual analysis of key leaders in 40 countries during the last two decades.

What the research found is that leaders from across different continents won power through common campaign tactics, including attacking multinational organisations, so-called fake media, and immigrants. And this electoral success is itself a microcosm of a wider upending of the tectonic plates of the global political landscape.

The research found that, some 20 years ago, only a handful of states with populations over 20 million including Italy, Argentina and Venezuela had leaders classified as populists through their speeches. This was an era that saw the controversial billionaire businessman Silvio Berlusconi as a right-of-centre maverick prime minister in Rome, presaging the rise of Trump; and Hugo Chvez as Venezuelan president.

This-then relatively small populist club expanded significantly during the aftermath of the 2007-08 international financial crisis. But it was not until the last half a dozen years that there has been the biggest rise in populism.

To be sure, there are still some limits on the rise of populism with a significant number of countries including Canada, France and Germany never having a governmental leader in the post-war era that has used populist rhetoric. However, even in these states, the share of the vote going to populist political parties has tripled since 1998.

The research highlights that this latest wave of populism is just one of several over the last several hundred years. Populism has been a recurrent phenomenon in the United States, for instance. Andrew Jackson, who served as US president from 1829 to 1837, won the moniker King Mob and some have drawn comparisons between him and Trump.

However, this latest wave of populism has cast a bigger footprint than perhaps ever before. The Global Populism Database indicates some 2 billion people are therefore today governed by a somewhat/ moderately populist, populist or very populist leader, an increase from 120 million at the turn of the millennium, with the research calling out leaders like Indias Narendra Modi as belonging in the populist camp.

Another key finding is how shades of populism differ across the world. In South America, populism leans towards socialism, albeit with Jair Bolsonaro as a key outlier, whereas current populists in Europe tend to be right of centre.

Looking to the future, one key question is whether this populist phenomenon will tail off in coming years. While that is possible, there is a plausible case that populism will grow. It should be remembered here that, while Trump lost in November, he won more votes than in 2016, and would most likely have been re-elected had the pandemic not struck.

Populism will likely remain at historically high levels for the foreseeable future for two reasons.

First, the coronavirus crisis has triggered a deeper, wider global recession than after the financial crisis of just over a decade ago. While the world is still in the midst of the corona crisis, it is already clear it will be the deepest recession since the World War II, with the largest fraction of economies experiencing declines in per capita output since at least 1870 according to the World Bank.

Yet, it is not just the absolute decline in economic output, but also rising economic inequality that is key. While some affluent cohorts have seen their wealth increase since the pandemic began, including through a booming stock market in many countries, poorer people have often seen their incomes stagnate or worse.

There is also an inter-generational impact too with young people disproportionately likely to lose their jobs. This puts countries at risk of long-term damage to earnings potential and job prospects, fuelling political discontent.

Second, there are some factors completely unrelated to the current economic slump that may also drive greater populism. This includes the disruptive and mobilising role of social media.

There remains debate about how instrumental social media has been in fomenting political populism in recent years. However, whether one sees this new technology as an essential component that translated discontent into concrete support for populism, or accentuated what was already inevitable, indisputably it has played an enabling role that may only grow.

Taken together, Trumps toppling is a setback for global populism, but it cannot be assumed that this political phenomenon has now peaked. The coronavirus crisis has increased the prospect of further political and economic instability in the 2020s which social media may help mobilise.

Views expressed above are the author's own.

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That Old-Time Southern Populism – The American Prospect

On January 5th, Senate candidates Jon Ossoff and Raphael Warnock won their critically important races as populists. Within 24 hours, the recently defeated president, whom mainstream scribblers had also carelessly once labeled a populist, was inciting his followers to storm Congress in a bid to hold onto power as an unelected ruler.

It was a stunning split screen. Less than a full day after Georgians elected only the second Black Southerner to the Senate since the Civil War, along with a young Jewish investigative journalist, Trump loyalists were smashing their way into the Capitol Building, draped in the flag of a vanquished slave empire. And though weve spent four years designating Trumpism as the epitome of a 21st-century populist movement, when you look at both of these events in tandemthe arguments made, the villains cast, and the vision laid out for the futureits clear who the torchbearers of populism are.

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Take a look at Ossoff and Warnocks closing arguments. They werent ballads to restoring civility or returning to the chummy, backslapping days when Republicans and Democrats would come together to destroy welfare or pursue horrific wars of aggression. Want a $2,000 check? Vote Warnock was actual ad copy from the Warnock campaign, a raw appeal to peoples material concerns. It linked up nicely with Ossoffs jugular attacks, casting Republican incumbents Kelly Loeffler and David Perdue (both former CEOs) as a pair of self-serving elites, feasting lavishly at a time when millions face starvation. Were running against the Bonnie and Clyde of corruption in American politics, Ossoff hammered. Who, when they learned about the pandemic that was bearing down on our shores, their first call was to their stockbrokers.

One side of the screen shows us what can happen when a multiracial movement fights to widen political possibility and improve the lives of ordinary people, forming a new Southern Populism that echoes the original. The other has climaxed in a white supremacist explosion on behalf of a wealthy scam artist turned authoritarian who faithfully serves the rich and built his political fortunes on a very old divide-and-conquer blueprint that was first laid out by populisms enemies.

As Thomas Frank writes in The People, No: A Brief History of Anti-Populism, Populism was the first of Americas great economic uprisings, a roar of outrage from people in the lower half of the countrys social order against an inequitable system [of] elite failure. This was Ossoff and Warnocks closing argument in a nutshell. More importantly, it describes the network of independent progressive groups that powered them to victory, and which show no signs of simply relying on the goodwill of powerful figures, even friendly ones, to deliver the progressive agenda theyve called for.

Even Joe Biden, who often mimicked the pointless rage of budget warriors as a senator and vice president, felt the populist currents coursing through Georgia. If you send Jon and the Reverend to Washington, he said at an election eve rally, those $2,000 checks will go out the door. History will show this to be important for more reasons than anyone can count. First and most critically, these victories and the populist currents that carried them have big implications for what Democrats can do, now that they control all three branches of government. Second and more subtly, it answers a question that has ricocheted across more than a century of Southern politics: whether a message that links racial unity with progressive economic policy can win in the South.

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To state the obvious, Democrats must now actually wield the power they have. Its true that the phrase Senate Minority Leader Mitch McConnell is a tune so sweet you have to play it back a few times. But if Democrats want it to last, they cant repeat the mistakes that got them wiped out in the 2010 midterm elections. Namely, they must implement measures that improve peoples lives. There is no excuse, including the very abolishable filibuster, for failing to do this. Democrats have the ability to enact an aggressive economic agenda as millions face mass poverty, starvation, and eviction; to address our rapidly frying planet; to protect and expand workers bargaining power; and to install a robust voting rights regime. If Congress wont budge, President Biden can accomplish at least some of these advances by his own authority. And blue states can take it even further.

But like any populism worth its salt, progressives cant depend on the goodwill of powerful people. It will likely take constant shoves from the partys left-wing grassroots to achieve anything of lasting significance. After all, their majority was secured on these expectations.

Organizing and populist messaging turned out liberal voters, despite the lack of a Trump bogeyman on the ticket.

IT WAS A POPULIST VISION of economic relief and a greater say in democracy that inspired organizers and everyday people to sweep across Georgia to rally the troops for the January 5th runoff elections. I hung out with a few of them while reporting there. Shauna Coco Swearington of Marietta, Georgia, for instance, knocked doors every day, six days a week, 10 a.m. to 6 p.m., she tells me. She let me tag along one afternoon, in one of Atlantas working-class Black neighborhoods. Coco was one of nearly 1,000 UNITE HERE canvassers who barely rested between the general election and the Senate runoff races. She told me that when COVID-19 hit, she was displaced from her job of 25 years as a server at the Westin hotel in Atlanta. So now Im out of health insurance, she explained. Ive got diabetes and heart disease. I need my medications. So it was very important for me to get on this campaign.

By winning the Senate, Coco hoped to see worker-friendly policies that provide job security for those who have been laid off, increase the minimum wage, and make it easier for workplaces to unionize. She also recognized that working people are uniquely positioned to tag each other into the fight.

Were the common people, were the people out there in the trenches doing the work, she said. So who better to tell you, This is my story, and this is why you need to go out and vote because this could be your story too. Her point is simple: Working people are the most convincing messengers on working-class concerns. And its even better if theyre empowered by political campaigns to talk to people about bread-and-butter ideas like getting cold hard cash into working peoples hands. In Georgia, where 48 percent of people are reportedly poor or low-income, that turned out to be a winning message.

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Bidens historic victory in the Peach State was different. He eked out a win in Georgia thanks to a one-two punch: Stacey Abramss strategy of increasing turnout by tapping into an army of unregistered young people and people of color, and more importantly, suburban nausea with Trump, which gave big margins in the metro Atlanta suburbs to the Biden-Harris ticket. Despite the suburban reversal, Trump still came within inches of victory, and improved his numbers with voters of color. As Jamelle Bouie writes in The New York Times, that likely had something to do with Republicans being in power when the government put a lot of money into the hands of a lot of people who didnt have it before, and, on the flip side, Democrats failure to put forward a compelling economic vision. Indeed, Biden promised during the campaign that nothing would fundamentally change.

With Trump on the sidelines, many pundits thought Georgia might be at the mercy of big money and Republican entreaties to stop socialism. What they largely missed was that an electorally powerful fusion dance had taken place. On one side, organizers did an extraordinary job keeping the states diverse electorate engaged. Turnout rates were almost at presidential levels, unheard of in these typically sleepy runoffs. And Black voters, Democrats most reliable and most neglected voting bloc, came out at even more impressive rates, decidedly fueling the runoff victories. This should humble anyone who thinks that no amount of organizing will change the reality that only the most obsessive voters show up to off-cycle elections.

On the other side, Ossoff and Warnock started arguing that the government has a duty to ensure everyones basic survival, calling for a $15 minimum wage, $2,000 emergency checks, and reopening closed hospitals, because health care is a human right, not just a privilege for those who can afford it or live in the right ZIP code. As Anat Shenker-Osorio, a leading researcher and voice on progressive messaging, puts it, In the waning days they did an incredible job of providing an affirmative narrative: This is what we stand for, this is what we believe in, this is the kind of Georgia and country that we can have [it was] obviously incredibly effective.

The combination of organizing and populist messaging turned out liberal voters, Black and white, despite the lack of a Trump bogeyman on the ticket. The Biden win is what can happen when you have a historically unpopular opponent riling up the base. The Ossoff and Warnock wins are more sustainable, less reliant on the opponent. And they signal a winning formula for a new Southern populism, one that braids together the regions rich diversity with a wildly popular economic message. Until now, Democrats had barely wrapped their hands around the first. But after years of unsuccessfully chasing white moderates across the South, the Georgia runoffs uncorked a model for competing.

Its one that has been there all along.

GEORGIAS POPULIST STORY, like the countrys, is nearly 150 years old, and unfolds across a vast ecosystem of independent, grassroots organizing. The message to working people has always been straightforward: The business and political class are concentrating greater and greater amounts of wealth and power. They are numerically tiny and see our unity as a threat to be eliminated. But by recognizing our shared fates, and pooling our enormous numbers, we can whip the money power and rearrange our institutions to satisfy the public good.

When Georgias first populist wave touched down in the late 1800s, King Cotton had only recently been dethroned. The Civil War had just liberated four million kidnapped humans from unpaid labor, representing an epic expropriation of private property paved with 750,000 dead soldiers. Almost immediately, some of these newly freed people pointed out that their wage labor looked an awful lot like forced labor.

In an 1883 speech, Frederick Douglass argued that The man who has it in his power to say to a man you must work the land for me, for such wages as I choose to give, has a power of slavery over him as real, if not as complete, as he who compels toil under the lash.

Douglass was teeing up his main argument. Since every worker was at the mercy of the boss, unity between Black and white workers was the key to overcoming the petty tyrants who ordered them around. Just as importantly, he warned, it is a great mistake for any class of laborers to isolate itself. Instead, there should be a strong bond of brotherhood between those who shoulder the hardships of labor. With unity comes strength, in other words, and if white workers could overcome the myth that they were members of a special skin aristocracy, then working people might finally be able to organize and combine for [their] own protection. Otherwise, there would be no end in sight to the sharp contrast of wealth and poverty in which the landowner is becoming richer and the laborer poorer. The Populist Party wouldnt have its launch party for another decade, but Douglass already had the battle lines clearly drawn.

For a brief and bright moment, there were signs that white laborers wanted in. When the Populist Party formed in 1892, Georgia was one of its most powerful outposts. Emerging from the ashes of the old Farmers Alliance, their assessment was simple: The countrys economic and political systems loyally served the rich at the expense of everyone else. Outraged by the Gilded Ages runaway inequality, the populists called for an egalitarian alternative, including aid for struggling farmers, expanded voting rights, and public ownership of key industries like railroads.

The connection to Douglasss argument was clear. And though we dont have any uplifting multiracial team chants to show for it, many white farmers saw the obvious strategic importance of linking arms with their Black peers in the fight for a fairer world. (Black farmers, who wanted to join the Alliance but were pushed into separate, second-string groups, did not need to be convinced of the importance of working-class unity.) But it would all be pitifully short-lived.

Just because attacks appealing to racial disunity are predictable does not make their success inevitable.

A monument to Tom Watson, a giant of Georgia populism, sits across the street from the state Capitol in Atlanta. In an 1892 essay titled The Negro Question in the South, Watson argued that a union of Black and white workers would have flung the money power into the dust years ago. The crushing burdens which now oppress both races in the South, he added, will force them to become political allies and on these broad lines of mutual interest the present will be made the stepping-stone to future peace and prosperity.

But like its counterparts across the country, Georgias populist vessel was partly devoured from the inside. Watson would eventually win a seat in the U.S. Senate in 1920, long after the Populist Partys official demise and only after swapping out pleas for interracial cooperation with brutal political and social repression of Black Americans, writes James Cobb, one of Georgias leading historians. Where he had once courted Black workers, Watson was now calling for their total disenfranchisement. Where he had once urged that lynching be made odious to whites, he now argued lynch law is a good sign that a sense of justice yet lives among the people.

Reading it now, its almost as if the 1892 essay was a warning letter to his future self. The earlier Watson saw clearly that all workers had a similarity of cause and a similarity of remedy, and that you are kept apart that you may be separately fleeced of your earnings. You are made to hate each other because upon that hatred is rested the keystone of financial despotism which enslaves you both. Future Watson said to hell with all that. By his own standards, racist tirades obviously undermined the actual goals of populism. But they had narrow perks for an ambitious Georgian at the turn of the 20th century.

I want to be careful here. The Populist Party had many powerful archenemies, including the economic royalists Franklin Roosevelt would eventually battle. Theres plenty of blame to go around for its demise. That includes the Tom Watsons of the world, who sat on the inside of this promising vehicle for working-class power and started shooting out the tires before it could really take off.

Its important to note, however, that Watson betrayed populisms core principles. What made populism distinct was its diagnosis of what caused economic suffering in the country, and the target of its fury. Racism poisons every corner of American political life, and the populists were no exception. But, Frank writes, populists were not the great villains of the eras racist system. That dishonor went to the movements archenemies in the southern Democratic Party, leaders who were absolutely clear about their commitment to white supremacy. Populism, with its emphasis on broad working-class unity, was an attack on these doctrines and the elites who depended on them. If you undermined that unity, then you undermined the populist mission itself.

Watsons story is so bizarre. It plays out like a twisted Shakespearian plot twist, except Watson does the double-crossing himself. By his own assessment, he ended up strengthening the hand of the exact group of wealthy landowners the populists furiously opposed, who stood to gain enormously from driving white and Black workers apart. But Watsons ambition got in the way of his stated goals.

OTHERS WOULD FOLLOW. Episodes like the Savannah longshoremen strike of 1891 signaled the staying power of divide-and-conquer politics. That fall, nearly 2,500 Black workers walked off their jobs at the docks, demanding higher wages, overtime pay, and union recognition. According to Temple Universitys massive archival Black Worker series, a committee of the Savannah commercial leaders organized to break the strikers will. Since Black workers refused to cross the strike line, company officials decided to hire white replacements. What could have been a remarkable example of Black and white workers winning concrete gains only confirmed that race could be used to divide the working class.

Just because attacks appealing to racial disunity are predictable does not make their success inevitable. As Ns Ufot, CEO of the New Georgia Project, one of the many organizing groups working to activate voters of color, says, There is a long history of radical resistance all across the state of Georgia. Popular movements like the abolitionist, womens, civil rights, and labor movements successfully dragged the United States to greater levels of human decency, and all have deep roots in the American South. Labor unions, for example, were arguably at their most dangerous when they teamed up with the civil rights movement, combining calls for racial and workplace justice based on the belief that economic security and anti-discrimination were joined at the hip, as Thomas Sugrue, professor of social and cultural analysis and history at New York University, says.

Georgias own Dr. King spoke frequently before labor unions and their federations. In a letter to the Amalgamated Laundry Workers in 1962, King wrote: The coalition that can have the greatest impact in the struggle for human dignity here in America is that of the Negro and the forces of labor, because their fortunes are so closely intertwined. Kings final mission before his death was in support of striking Black sanitation workers in Memphis.

King also constantly warned of the dangers of failing to directly address the deadly power of racism to wipe out working-class unity. In his 1965 remarks concluding the Selma-to-Montgomery march, King described a southern aristocracy shaken to its core by the threat of poor Black and white people coming together as equals. To prevent this, the southern aristocracy took the world and gave the poor white man Jim Crow, which he ate when his wrinkled stomach cried out for the food that his empty pockets could not provide. This, he said, perhaps with Tom Watson in mind, eventually destroyed the Populist Movement. As Thomas Frank writes, King was suggesting that the movement of the 1890s had an obvious modern counterpart. Working people of both races could come together once more to build a nation of justice and plenty.

But the opposition, determined to keep workers segregated by race, in proximity and in consciousness, had modern counterparts too. Before civil rights legislation and working-class solidarity could even get off the ground, they were dusting off the predictable playbook: Flood the zone with enough racist garbage to split the coalition.

You have likely heard of its most infamous update: the Republican Partys Southern strategy. Launched by Richard Nixon and echoed by fanatical champions across the country, including Georgians like Lester Maddox and Newt Gingrich, conservatives began serving up white resentment like hotcakes, gobbling up the Southern political map in the process. This came to be known as the cultural leg of the Republicans three-legged stool. The other two were nonstop fist-pumping for war and worship of free markets. But those either dont reliably move people to vote, in the case of endless war, or actually repulse them, in the case of wildly unpopular conservative ideas like cuts to the social safety net and tax breaks for the rich. The economic and military legs of the stool get you corporate campaign donations; they do not get you votes.

Long before Trump, conservative stars like Nixon, Gingrich, and Ronald Reagan would hammer elites for looking down their nose at everyday people. These seeds would eventually blossom into the Tea Party and the Trump campaign, long before being rebranded as right-wing populism. All the while, the GOPs actual agenda has remained slavishly devoted to the countrys increasingly powerful business class. Trumps signature legislation, remember, was a $1.9 trillion tax cut for the wealthy.

Until recently, the Southern strategy was treated as nearly irreversible. The best Democrats could do was hold onto a few seats and prevent the rest of the country from being swallowed by a sea of red. But the math is changing.

Before Bidens surprise victory, Democrats had not won a presidential race in Georgia since 1992. For years, they told themselves that winning statewide office required at least 30 percent of the white electorate. This meant becoming a bootleg Republican Party: worshiping markets, dedicating themselves to world domination, and repeating right-wing bullshit about the moral decline of Black and poor people. It was designed to cleave off enough of a slice of the white vote to earn a victory. The typical messenger was a nondescript white man: John Barrow, Roy Barnes, Max Cleland, Zell Miller, Jimmy Carters grandson Jason.

Georgia Democrats rarely pushed that boulder uphill. The last Democratic gubernatorial victory was in 1998. By 2006, just three DemocratsBlack officeholders Thurbert Baker (attorney general) and Mike Thurmond (labor commissioner), and 42-year agriculture commissioner Tommy Irvinmanaged to win statewide. By 2010, the entire suite of statewide officers were Republican, and it stayed that way for a decade.

Stacey Abrams offered an alternative to this losing scenario. After entering the Georgia House of Representatives in 2007, she proposed that the party instead focus on mobilizing young people and people of color, who voice their disgust with politics by finding better things to do with their time.

Though Abrams didnt win the governors seat in 2018, she came within 55,000 votes, closer than any Democrat in recent history. She only won 25 percent of the white vote, supposedly a disqualifying condition. But Abrams put up unparalleled numbers with Black, Latino, and Asian American voters, bringing her within a few disenfranchised votes of victory. As FiveThirtyEight reported, Georgias blue turn is unimaginable without Abramss years-long project to juice turnout among people of color, even if the greater factor in the Biden victory was genuine suburban horror at Trumps rotten personality.

With the victories by Ossoff and Warnock, Georgias political math has been recalculated. Neither candidate hit 30 percent of the white vote, though they came close. A new and more liberal electorate attracted to the fast-growing Atlanta metro area has made those numbers more reachable. And the runoffs spotlighted the overwhelming power of voters of color, including in Black rural areas, which saw presidential-level turnout. These Democratic voters came to the polls in enough numbers to win because Ossoff and Warnock actually offered them something; populist messaging and multiracial organizing went hand in hand. The old wisdom about what it takes to win in Georgia has been shaken like an Etch A Sketch.

The failed strategy of Kelly Loefflers loss reveals a conservative movement that has nothing to offer and knows it.

THE QUESTION NOW IS how to make sure it lasts. True to the populist tradition, every Georgia organizer I spoke with stressed the importance of building an independent progressive movement that haunts the dreams of politicians across the country to ensure they actually deliver for working people. Not a single organizer talked about how excited they were to go home and hope for the best, now that Democrats have a Senate majority. They see this as a time to apply relentless pressure to ensure a positive progressive agenda is carried out.

The issues that are paramount to Black womens lives just dont get the air they deserve. Black women dont get asked, Whats important to you? What do you need? says Malika Redmond, the co-founder and executive director of Women Engaged, an Atlanta-based organization that fights for social change through voter engagement and reproductive justice advocacy. Redmonds organization knows that they cannot rely on mainstream institutions or parties to seriously address their priorities without constant activism. Women Engaged works to generate something that we can hold the powerful accountable for, Redmond says.

Each organizer was clear about the difficult battles ahead. Elections are a snapshot of a moment in time, says Gwen Mills, the secretary-treasurer of UNITE HERE. They tell us how much organized power there is and who you can get elected at a particular time. After a short breather, Mills says, its back to organizing in the streets and workplaces. You have to keep the grassroots fire burning, Mills says, because the power and the money behind the corporate lobby is just staggering. In other words, elections may clarify where things stand or even modestly improve the battle terrain, but they have very limited firepower beyond that.

Building a strong working-class army requires addressing the weak spots that the opposition exploits and, as weve seen, has always exploited. People of color make up about half of Georgias population (though still 39 percent of the vote, even in the Senate runoffs). And since racism is also a weapon used to loot the countrys most vulnerablethink housing segregation, income and wealth inequalityworking-class issues are Black and brown issues.

One thing we know is that if were not talking to our members, somebody else is, says Marlene Patrick-Cooper, president of UNITE HERE Local 23, which covers a large swath of the South. All over the country, there has always been an employer goal to divide the workers. This is a lesson from the School of Hard Knocks. For decades, divide-and-conquer tactics have eroded unions, weakening their defenses against demolition efforts like right to work. As a result, union membership was pushed off a cliff in recent decades, falling from one-third of workers in the 1950s to barely 10 percent today. That fall tied weights to the ankles of wages, and they havent gone anywhere meaningful since.

Instead of running from the problem, UNITE HERE is tackling the racial history of right to work head-on, Patrick-Cooper says. The union has established a two-day training session, where members learn how racism created cracks wide enough to ram policies like right to work through countless statehouses. You cannot be successful as a union if you dont have solidarity on the shop floor, if workers dont all stand together, Mills adds.

This is the kind of key defensive tactic that makes an offense possible. If solidarity isnt built between elections, and if unions and other independent sources of power cannot secure concrete gains for working people between elections, then their coalitions will be repeatedly torn to pieces and forced to scramble frantically once election season rolls around. After all, it was the combination of long-term anti-racist work and Southern progressives positive vision for the future that made Georgia competitive in the first place.

Consider the split screen again. The conservative movement not only has a wildly unpopular agenda, but cultural resentment, warmongering, and free-market cultism just dont pack the same electoral punch they once did. As Brooklyn College professor and author of The Reactionary Mind Corey Robin puts it, the reason Republicans under Trump have been turning up the volume on white rage isnt because its powers are growing. They hope that the noise will compensate for the fact that conservatism is actually weaker than it has ever been. White identity pays out thinner and thinner dividends to an increasingly miserable base.

As Princeton economists Anne Case and Angus Deaton show, deaths of despair already had life expectancy for middle-aged white people declining before COVID-19. The same population who fueled the right-wing march that started 40 years ago is poorer than they were at the beginning, and they are arriving at deaths door ahead of schedule. During that time, the rights agenda has dominated everywhere: privatization, deregulation, tax cuts for the rich and destruction of the countrys already pitiful social welfare state, not to mention violent opposition to civil rights gains like desegregation. Everybody hates this agenda, with the possible exception of overthrowing the gains of the civil rights movement, a truly American pastime beloved by liberals and conservatives alike.

The point is, bigotry is all thats left for the right. Kelly Loeffler, for instance, spent the runoff election blowing 150-year-old dog whistles in a losing campaign as grotesquely racist as any fire-breathing segregationists. She routinely painted her opponent, a Black pastor who preaches where Dr. King once stood, as a radical liberal hell-bent on bringing socialism and Marxism upon these delicate shores. Loeffler and Perdue cant run as themselves. They cant run promising anything, Shenker-Osorio tells me. Because they dont stand for anything that most people want. So the only thing left to them, and the Republican Party more broadly, is to try to scare people about the other side and to try to trade on and kind of exacerbate peoples feelings of resentment.

Warnock counterprogrammed with campaign ads of him with puppies, offering a cuddly portrait. But more important, he countered with policy, populist progressive policy, meant to improve peoples lives and fortunes. Loefflers flailing race-based appeal fell short.

Her satisfying defeat, of course, does not mean that the right has been defanged. The last decade has provided explosive evidence for Robins warning that weak movements can be dangerous movements, leading right up to a clumsy but still highly organized insurrection. But the failed and tired strategy of her loss does reveal a movement that has nothing to offer and knows it.

They are now in survival mode. Everyone from Donald Trump to Mike Lee to Lindsey Graham admits that the Republican Party must either snuff out democracy itself or be snuffed out themselves. Mother Jones reporter Ari Berman has been carefully chronicling the entire landscape of modern-day poll taxes and booby traps theyve laid out to mutilate voting rights for Black and brown and poor people. So heres what we have: an agenda that deposits larger and larger shares of the nations wealth into the bank accounts of a tiny few while basically telling everyone else, Good luck and God bless, as they face avoidable crises like poverty, starvation, medical bankruptcy, and homelessness. And at the same time, they are working furiously to get the eligible voting pool back down to its 18th-century size because they cannot survive otherwise.

This is the phony populism of the right. The original populist uprising, of course, had its share of hideous blemishes. But in terms of actual principles, todays conservative movement is basically populisms evil twin. It may dress itself up in populist clothing sometimes, but when you compare their deeper worldviews and aspirations, they clash furiously.

On the other screen, progressive and left-wing grassroots organizations are trying to fling the doors of democracy open wider to enact a sweeping progressive agenda. Georgia is absolutely bursting with them. The immigrant rights organization Mijente apparently contacted every Latino voter in the state during the runoff election. According to a press release, the New Georgia Project reached out to Georgians through more than 10 million calls, texts and door knocks. Peoples Action, a network of state and local grassroots organizations, called 1.2 million low-propensity voters: students, Asian Americans, and voters in rural areas. They held over 23,000 in-depth deep canvass conversations and got well over half of those voters to turn out for Ossoff and Warnock. Black Voters Matter spent the runoff zigzagging through often-neglected Black corners of the state. And UNITE HERE also passed the one-million-door threshold.

For many observers, the runoffs were a referendum on whether Georgias multiracial, multiethnic, multilingual, progressive majority, as Ns Ufot put it in a recent Intercept story, was sustainable. Could a genuine populist movement, one built on working-class solidarity across difficult fault lines, have enough punching power to whoop the far right in the Deep South? January 5th provided an answer, though the work goes on.

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That Old-Time Southern Populism - The American Prospect

All Quiet on the Populist Front? by Jan-Werner Mueller – Project Syndicate

Because every country is different, the ignominious exit of a political figure like US President Donald Trump does not necessarily tell us anything about the fate of authoritarian populists elsewhere. Just as populists tend to learn from one another's successes, so will they heed others' mistakes.

BERLIN Liberals around the world are daring to hope that there is a silver lining to the violent denouement of Donald Trumps presidency: namely, that the inciter-in-chiefs ignominious exit from the political stage will chasten authoritarian populists elsewhere. Unfortunately, their optimism is naive.

Contrary to the clich about a populist wave sweeping the world in recent years, the rise and fall of populist leaders tends not to have significant transnational effects. Just as there is no honor among thieves, there was no solidarity among the supposed Populist International when it really mattered. Trump chums like Indian Prime Minister Narendra Modi, Israeli Prime Minister Binyamin Netanyahu, and even Russian President Vladimir Putin ultimately acknowledged Joe Bidens electoral victory.

More important, while Trump has been omnipresent, he has never been a typical populist. Right-wing populists in government tend to be more careful when it comes to maintaining a faade of legality and avoiding direct association with street violence. Because the storming of the US Capitol on January 6 was clearly a sign of desperation, it does not necessarily foreshadow the fate of populist (and radical right-wing) movements elsewhere. The only real takeaway is that other populist kleptocrats might also resort to violent street mobilizations if they are ever truly cornered.

Liberals often claim to appreciate the world in all its complexity, whereas populists are great simplifiers. But it is liberals who have pushed the highly simplistic narrative of a global populist wave, as if one need not consider particular national contexts very carefully.

According to this domino theory which was enthusiastically embraced by populists themselves Trumps unexpected triumph in 2016 was supposed to trigger victories for right-wing populists in Austria, the Netherlands, and France. In fact, the opposite happened. In Austria, Norbert Hofer, the presidential candidate of the far-right Freedom Party, lost after adopting Trumpist antics that made him seem un-presidential. In the Netherlands, the far-right demagogue Geert Wilders had Trumps endorsement but ultimately underperformed. And in France, Marine Le Pens loss to Emmanuel Macron in the 2017 presidential election confirmed what had already become clear: Euro-Trumpism might not be such an effective strategy after all.

It should go without saying that what works in one political culture might not work in others. Much also depends on the decisions of actors who are not populists themselves: In the US case, Trump benefited from the collaboration of established conservative elites and the Republican Party. In fact, with the possible exception of Italy, no right-wing populist party has come to power in Western Europe or North America without conscious help from supposedly center-right actors (most of whom have never been held accountable for their role in mainstreaming the far right).

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Moreover, even if the parties and governance styles associated with right-wing populism end up resembling each other, it does not follow that the rise of populists has the same root causes everywhere. A much more likely explanation for the similarities is that populist leaders have selectively learned from one another.

For example, it is now standard populist practice to pressure pesky nongovernmental organizations through ostensibly neutral legal changes. In what some observers have called autocratic legalism, many right-wing populists in power studiously follow formal rules and practices to maintain a patina of neutrality and create plausible deniability for political acts. Unlike Trump, these leaders understand that street violence by an uncontrollable movement could trigger a backlash both within their own country and among international audiences.

Even where violence is de facto encouraged, as with the persecution of Muslims in India under the ruling Hindu nationalist Bharatiya Janata Party, figures like Modi are careful not to go on record with statements that might be interpreted as direct incitement. Similarly, the Hungarian government relentlessly traffics in racist and anti-Semitic tropes, but Prime Minister Viktor Orbn is careful never to go beyond loud dog whistles, lest he endanger his crucial relationships with the German Christian Democrats and the German car industry.

To be sure, if cornered, any populist might resort to Trumps endgame methods: trying to coerce elites into committing fraud to prevent a transfer of power, or deploying right-wing extremists on the ground to intimidate lawmakers. These desperate acts signaled Trumps weakness. But it is important to note that most Republicans still did not disown Trump even when confronted with his blatant lawlessness on January 6.

Other right-wing populists may well take notice of this fact. The recent events in the United States have shown that elites who are prepared to collaborate with authoritarians will tolerate quite a lot in the end. This ignominious precedent is especially likely to hold true in other countries where crony capitalism has implicated the business community in illegal behavior.

Populists cleverer than Trump smother democracy slowly through legal and constitutional machinations. But right-wing populist kleptocracies based on a fusion of big business and bigotry, in the words of the Indian journalist Kapil Komireddi, might not go down quietly.

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All Quiet on the Populist Front? by Jan-Werner Mueller - Project Syndicate

Inoculating the masses against demagogic populism – The Kathmandu Post

Prime Minister KP Sharma Olis political fate hangs in the balance. With Nepali Congress taking an oppositional stand, his status as the ethnonational chieftain stands challenged. Though nothing is ever certain in the game of politics, a vertical division in the ruling Nepal Communist Party (NCP) appears to be a foregone conclusion. He is no longer the Supremo that once held sway over the polity and society of the country.

The decision of dissolving the Pratinidhi Sabha in the middle of the Covid-19 pandemic is comparable to the declaration of promulgating a contested statute in the middle of Gorkha Earthquake aftershocks through the 16-point conspiracy. But five years after his phenomenal rise as the saviour of Khas-Arya pride, Oli has lost his charisma due to failures on all fronts.

The economy is in shambles. Allegations of corruption in high places are rife. Nepotism, favouritism and quid pro quo in political appointments have become the norm. The prime minister has fallen so low in public esteem that even nominations made upon the recommendations of the Constitutional Council have failed to escape scrutiny.

If details of court proceedings that have seeped into the public sphere are anything to go by, lawyers appear to have a very strong case for the restoration of the Pratinidhi Sabha. Such an eventuality may impel Oli to take even more desperate actions.

Among the three principal outside players in Nepali politics, it seems the Chinese were the first to lose confidence in the sincerity of the person they had helped become the chief of a fraternal communist party wedded to the Xi Jinping Thought. Oli consistently ratcheted up anti-India rhetoric to burnish his ultra-nationalist image. For some strange reasons, prominent interlocutors from the US seemed to admire the hilarity of a Third World strongman. But even they aren't too pleased with the absolute ineffectiveness of their favourite agent of political stability.

Perhaps Oli had anticipated that his bugbears in the South Block will help him come out of constitutional and political imbroglio due to the compulsions of the new Cold War simmering in South Asia. For now, all such hopes lie shattered. It seems Foreign Minister Pradeep Kumar Gyawali received nothing tangible in New Delhi except hackneyed promises of continued goodwill.

While New Delhi appears ready to give the prime minister a long rope, it doesn't seem to be too willing to pull him out of the bog. The goat-tailed map has closed many hospitable doors for several Nepali politicos including the jingoist-in-chief of Baluwatar.

Ignored signs

Political, diplomatic and propaganda weights are being stacked up one by one against the tottering chieftain. If it were a normal person in his position, they would humbly make way for the constitutional search of a more suitable claimant. But demagogic politicos are of a different breed altogether. They plan to remain in power forever and inflict huge damage to the polity if they are made to leave against their will. The triumph of Trumpism despite his fall from grace is an illustrative case in point.

The most effective way of fighting demagoguery is to read early warning signals and expose a putative populist before one manages to arouse the raw passions of the dominant community. Unfortunately for Nepal, Oli succeeded in taking an entire country for a ride with his seemingly comical outbursts against Madhesis and Janajatis that pandered to the prejudices of the Khas-Arya ethnonational.

The Supremo didn't even hide his duplicity of having no faith in federalism, inclusion and plurality but aspiring to become the prime minister ostensibly to protect and promote a constitution that enshrined such provisions, though in a limited way. His decision to remove the 'Federal Democratic Republic of Nepal' from the official name wasn't a bolt from the blue; he had expressed his intentions earlier in unmistakable manner by deriding republicanism as a journey to the US in an oxcart.

Demagoguery and authoritarianism are inseparable. Oli began to concentrate all political and administrative authority in the residential Secretariat of the prime minister from the day he took office. He seldom cared to attend his official chamber at Singha Durbar. Party meetings were invariably held at Baluwatar. His health condition didn't come in the way of supposedly working '18 hours a day' as long as everyone paid obeisance to his person at his residence.

Be it the challenger to his position inside the party or a competitor from the opposition benches, Oli took immense pleasure in belittling all political opponents. The 'with us or against us' mindset of authoritarian populists holds immense appeal for the masses yearning for a strong leader in the times of uncertainty. He valued political processes so little that not just the office of the president, even the lower house of the Parliament was reduced to the level of being merely formalising institutions of all whimsical decisions.

Even when he sold hopes of piped gas to every kitchen, trans-Himalayan railway to the Gangetic plains or Nepali ships sailing to the high seas, his tone used to be flippant. The only time he sounded serious was when he claimed that Hindu sages had discovered the theory of gravitation before Newton or the authentic Rama of Hindu mythology was born in Nepal. Demagogues peddle supposed glories of the past which a disempowered populace is always eager to embrace.

Predictable risks

Demagogues almost always harbour delusions of grandeur. Such a tendency invariably leads to misplaced priorities. Apart from being the only president in US history to be impeached twice, the only other thing President Trump will perhaps be remembered for is his slogan, 'Build That Wall!'.

Prime Minister Modi's enduring legacy will be the monumental folly of demonetisation and the colossal 'Statue of Unity' that was imported from China to be erected in Gujarat. The edifice complex of Oli expresses itself in the prioritisation of Dharahara over housing for the Gorkha Earthquake survivors and the erection of view towers on hilltops and in flatlands over building schools and hospitals.

Before he leaves, Prime Minister Oli is sure to squander scarce resources in order to leave what he probably believes will be his enduring legacy: a palace for the Prime Minister inside Baluwatar.

Demagogues have flexible moral values and decry or deploy political violence as it suits them. Whenever threatened, they are likely to unleash the fear and hatred of the dominant community against numerical as well as political minorities in an orgy of violence. Unlike Prime Minister Modi, Oli may not be capable of 'doing a Gujarat' on an entire country, but imitating Trump's Capitol incitement is a do-able option for a person completely unconcerned about the judgement of history.

Sooner rather than later, KP Sharma Oli will have to go. The challenge for Nepali society is to work for a relatively peaceful transition. It doesn't help that his main challengers aren't too well known for peaceful politics. Difficult as it may be to digest, violence is hardwired in the political proclivities of Nepalis.

The bigger challenge will be to create conditions where demagogic exhortations are countered with the appeal for peaceful politics and populist rhetoric is resisted with the promise of plurality and participation in public life. Vaccinating against the pandemic to ensure herd immunity is difficult enough, but to inoculate an entire society against demagogic populism is an impossible task that every generation has handled, with the media, academia and intelligentsia as front-liners.

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Inoculating the masses against demagogic populism - The Kathmandu Post

What populist means: Theres more to the label, associated with leaders like Donald Trump, than meets the eye – Firstpost

Perhaps one reason that the word populist becomes useless is because it describes a wide variety of political actors, spanning the ideological spectrum.

Donald Trump. Reuters/File Photo

Joining the Dotsis a fortnightly column by author and journalist Samrat in which he connects events to ideas, often through analysis, but occasionally through satire.

***

One of the most fractious electoral processes in the history of what is still the worlds most powerful country is scheduled to end in a few hours with the inauguration of Joe Biden as President and Kamala Harris as Vice President of the US. Donald Trump will, at long last, leave the White House after an incendiary campaign to overturn the election results that culminated in an insane attack by a mob of his followers on Americas parliament, the Capitol. His departure will hopefully mark the beginning of the end for others of his ilk ruling countries around the world, who are loosely called populists.

Populist, however, is a useless word. No one can say where exactly popular ends and populist begins. The distinction, such as it is, would probably be lost on practically the entire voting population. This is in contrast to other words such as communist, nationalist, liberal, and fascist that, even when reduced to labels, continue to carry some meaning in ordinary usage.

Perhaps one reason that the word populist becomes useless is because it describes a wide variety of political actors, spanning the ideological spectrum. Political scientists studying it, such as Matthijs Rooduijn of the University of Amsterdam, have found only four characteristics that populists share in common. Firstly, they emphasise the central position of the people. Secondly, they criticise the elite. Thirdly, they perceive the people as a homogenous entity. Lastly, they proclaim a serious crisis.

The trouble is, democracy also emphasises the central position of the people. Criticising the elite is also a characteristic of Leftists in general. Perceiving the people as a homogenous entity is something that the Chinese Communist Party, the Saudi, Iranian, Turkish and Pakistani regimes, and the Hindutva brigade in India, among others, all seem to do. And proclamation of some serious crisis is a staple of every election campaign in which the opposition wants to unseat the incumbent.

What we are up against, in the global rise of what is called populism, therefore, seems to be a deeper crisis in our fundamental ideas than most of us would like to admit. We do not want to see populism as the deepening of democracy or its homogenising impulse as a natural progression in the idea of the nation. Yet it could be argued that this is what it is. Arguably more people at the grassroots are more deeply engaged with politics now than ever before. They are expressing their political opinions loudly and angrily. If they want to drive out immigrants everywhere, or build walls in America and Ram temples in India, isnt that only an expression of the will of the masses?

The answer to this question cannot be found without grasping the nettle of elitism. The core feature of populism around the world is its hatred for old elites and all that smacks of elitism. This was channeled by authoritarian demagogues who rode ressentiment to power. The disdain for political correctness displayed by characters like Trump talking of grabbing women by the p**sy and Rodrigo Duterte in the Philippines cracking rape jokes in public speeches was them, as sons of the soil, breaking the rules of good behaviour established by elites. Their disgusting talk did absolutely nothing to dent their popularity with their followers.

Nor did their attacks on science, even in the midst of a global pandemic. If the masses in America and Brazil dont want to believe wearing masks does anything to prevent COVID, well then, they must be right. If Hindu masses are associated with a belief in the ability of cow urine to cure everything from cancer to COVID, then science be damned, cow urine will be celebrated as a cure. If evangelical Christians do not believe Darwins theory of evolution because it contradicts the Bible, Darwin must be wrong. If the populist demagogues could, they would probably put the Law of Gravitation to the vote to decide if its right.

This is because the issue is not truth or fact at all. The real issue is pride in ones beliefs. It is about who decides, and how, whats okay to say and whats not, whats respectable and whats laughable. What the populist demagogues discovered was that there existed a vast reservoir of people who did not understand why their beliefs should be considered inferior to any other. They did not want experts deciding the issue by arcane theory and incomprehensible evidence. It was a matter of standing up for the equality of ones beliefs, which are after all a part of identity. Why should the belief in the divine efficacy of cow urine or the theory that God created the world in seven days be inferior to any other? Most people have no way of really knowing; the science is beyond them, and therefore it is a matter of one persons word against anothers.

The modern world, and its institutions and norms, were invented in the 18th and 19th centuries through the diffusion of ideas that spread among new elites created by new systems of education in economies and societies that underwent radical change. Democracy was then not widespread globally. Within the relatively few democratic countries that existed, the franchise was initially restricted to certain sections of the population usually wealthy and predominantly male. Even in India, where electoral democracy started before independence, it was with a limited franchise and communal representation in the councils of British India. It opened up over time to include the entire adult population. On the whole, this has been an excellent thing, but there has been a noticeable decline in the quality of political leadership over the years.

Where once there was Mohandas Gandhi and Sardar Patel, Gujarats and Indias leaders today are Narendra Modi and Amit Shah. The Dalit leadership has travelled from Dr BR Ambedkar to Mayawati and Ramdas Athavale. Jawaharlal Nehrus Congress is led by Rahul Gandhi. Mamata Banerjee is Bengals leader. Her challenger from the Hindu Right, a position occupied once by Syama Prasad Mukherjee, is Dilip Ghosh. Several of the stalwarts of yore, like the ones now, displayed characteristics that might today be called populist, but they differed vastly from the current crop in education, personality and character.

What accounts for the changing profile of the popular leader?

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What populist means: Theres more to the label, associated with leaders like Donald Trump, than meets the eye - Firstpost

Ransomware reveals the hidden weakness of our big tech world – ZDNet

Ransomware continues to cause damage across the world. Rarely a week goes by without another company, or city, or hospital, falling prey to the gangs who will encrypt the data across PCs and networks and demand thousands or millions in exchange for setting it free.

These aren't victimless crimes; every successful attack means a company faces huge costs and risks being pushed out of business, or public services disrupted just when we need them, or medical services put in jeopardy in the middle of a crisis.

And yet it seems impossible to stop the attacks or catch the gangs. That's because the ongoing success of ransomware reflects many of the real-world failings of technology that we often forget or gloss over.

SEE: Network security policy (TechRepublic Premium)

There are obvious, fundamental weaknesses that ransomware exploits. In some cases these are problems that have existed for years, that the tech industry has failed to address; others are issues that are, right now, beyond the skills of the smartest entrepreneurs who want to tackle cybersecurity challenges.

A few examples spring to mind. Hackers would be unable to gain even their first foothold if companies took security seriously. That means applying patches to vulnerable software when they are issued, not months or years later (or never). Equally, companies wouldn't be on the tedious treadmill of applying constant security updates if the tech industry shipped software code that was secure in the first place.

And while we tend to think of the borderless world of the internet, the real world of geopolitics looms large when it comes to ransomware as many of these gangs operate from countries that have no interest in catching such crooks or handing them over to police in other jurisdictions. In some cases that's because the ransomware gangs are bringing in much needed funds for the country; in other cases so long as the gangs aren't going after local victims, the authorities are quietly happy for them to create havoc elsewhere.

It's not all doom and gloom; the fight back against ransomware is advancing on a few fronts.

Intel has showcased some new hardware-level technologies that it says will be able to detect a ransomware attack that antivirus alone might miss.

SEE: Cybersecurity: This 'costly and destructive' malware is the biggest threat to your network

A group of tech companies including Microsoft, Citrix and FireEye are working on a three-month project to come up with options that they promise will "significantly mitigate" the ransomware threat by identifying different ways of stopping such attacks. And more political pressure should be put on the nation states that are happy to let ransomware gangs flourish within their borders.

There is also a need to put more pressure on governments to look at whether, and in what circumstances, it should be acceptable to pay the ransom at all. Profit is the only reason that ransomware exists; if it is possible to stop the gangs from making their big payday, then the problem goes away almost immediately.

Everyone seems to agree that ransomware is a menace that can no longer be ignored. Now we need to see some tangible progress before these attacks create more chaos.

Read this article:

Ransomware reveals the hidden weakness of our big tech world - ZDNet

The Blind Spot Endures: A Profile of Just One of Trump’s Last Minute Intercessions – InsiderNJ

Like any household where an abusive patriarch intoxicated by his own absolute power has exited after beating up his family, we are all breathing a collective sigh of relief.

The civil servants mostly of color have cleaned up all of the excrement and graffiti in the marbled hallways of the Capitol built by their slave ancestors that was left by Trumps army of neo-Confederates that killed a police officer in the name of their uncivil war.

Its tempting to only focus on the reassuring avuncular presence of President Joe Biden, who is working overtime to restore that sense of basic decency thats been lacking for so long.

Like the family thats returned from vacation to find a ransacked home, we still have yet to compose an accurate inventory of what was stolen. Are the crooks still in the basement? Are the pets still alive? Is great grandmas wedding ring where Mom left it?

We were so distracted by his frontal violent assault on our Capitol by his minions, we failed to properly account for hisout the doorcrime wave committed in the final hours of his presidency with his pardoning of 70 people and commuting the sentences of another 73.

As Trump and his posse gallop for the swamps of Florida, we need to put the blood hounds on the scent given off by the stench of so many of these pardons.

We need the names of the facilitating law firms and lawyers cross referenced with their corporate client so there can be a proper accounting.

No doubt, there will be some on the list that were meritorious, righting by executive action true miscarriages of justice.

As could be expected, health care fraudsters with Jersey connections made Trumps rogues gallery roll call.

While our elected politicians all wonder aloud whats to account for our stark race-based health/wealth inequalities revealed by COVID-19, they should read their rap sheets to get a clue.

One of those who benefited from a Trump commutation was Dr. Salomon Melgen, a Florida ophthalmologist, who was a major campaign donor to Senator Bob Menendez, and got a 17-year federal sentence for his conviction in a $73 million Medicare fraud case.Now, thanks to support from Menendez and dozens of others he gets 13 years shaved off his sentence.

In 2015, Menendez was indicted on federal corruption charges. The DOJalleged that between 2006 and 2013, he had taken close to $1 million worth of lavish gifts and campaign contributions from Melgen in exchange for using the power of his Senate office to influence the outcome of ongoing contractual and Medicare billing disputes worth tens of millions of dollars to Melgen and to support the visa applications of several of Melgens girlfriends.

In 2017, a hung jury resulted in a mistrial and prosecutors opted to not retry the case, but Menendez bootstrapped that into a kind of exoneration.

He cast himself as a victim.

I want to thank the jury, 12 New Jerseyans who saw through the governments false claims and used their Jersey common sense to reject it, Menendez told reporters, Politico reported.

The way this case started was wrong, the way it was investigated was wrong, the way it was prosecuted was wrong, and the way it was tried was wrong as well, he said. Certain elements of the FBI and of our state cannot understand or, even worse, accept that the Latino kid from Union City and Hudson County can grow up and be a U.S. senator and be honest.

Throughout his Melgen tribulation the leadership of New Jerseys Democratic establishment rallied around him with the same partisan blindness displayed by House Minority Leader Kevin McCarthy for Trump.

Yet, what the jury could not see his Senate colleagues did.

In April of 2018 Menendez was severely admonished by the bi-partisanU.S. Senate Select Committee on Ethicsfor over a six-year period taking and not disclosing gifts of significant value from Dr. Melgen while at the same time using his position as a member of the Senate to advance Dr. Melgens personal and business interests.

Lost in all of this was just how awful were Melgens offenses. These were not some kind of white-collar victimless violations. There was real flesh and blood to these crimes.

All too often when we see a headline like $73 million Medicare fraud our jaundiced eyes glaze over. Here in the Soprano state that could be just a couple of municipal bond offerings or the proceeds from a few big pharma insider stock tips.

But Dr. Melgen, one of the nations most prolific Medicare billers in his day, was so much more industrious and disciplined in his efforts that it merits closer examination and appreciation.

The enterprising Melgen specialized in treating macular degeneration, the major cause of vision loss for people 50 or over.

According to Judge Kenneth Marra, who presided over Melgens sentencing, his practice was conducted in a manner where he routinely, and as a matter of standard practice, diagnosed patients with medical conditions they did not have in order to allow him to bill for diagnostic procedures and medical services that were not medically necessary or justified.

Judge Marra continued. Specifically, the Court finds that Defendant routinely falsely diagnosed patients with either wet or dry Age-Related Macular Degeneration. This mis-diagnosis allowed Defendant routinely and as a matter of standard practice to subject his patients to medically unjustified procedures and treatment, and then fraudulently bill for those procedures.

All totaled, theMiami Heraldreported prosecutors proved that about 77 percent of Melgens wet macular degeneration and 61.8 percent of his dry macular degeneration diagnoses were unsupported by medical records.

But that wasnt all.

Melgen was also tagged by federal regulators for usingsingle vialsofLucentis, a drug that is injected in the eye to slow the loss of eyesight related to diabetes, to treatthreepatients despite the fact a vial is prescribedto be used on a single patient. Not only did this scam net Melgen a huge windfall but, according to the Centers for Disease Control drug guidelines, put his own patients at risk ofinfection.

The Palm Beach Postquoted Dr. Robert Bergen, a retired New Jersey retinal specialist who reviewed for prosecutors the charts of over 300 of Melgens patients. He said that Melgen was notorious in the world of specialty eye medicine. Everybody knew about this guy, Bergen told the paper after he testified Melgens treatment of his patients was totally disgraceful.

Its the most egregious example of totally taking advantage of patients, not caring about diagnosing them properly, it was the antitheses of what a decent physician should do, said Bergen.

As federal health regulators were zeroing in on Melgen, Menendez appealed for intervention with his Senate colleagues and the Secretary of Health and Human Services for a re-interpretation of the regulations under which the government was pursuing Melgen.

It wasPalm Beach Postcolumnist Frank Cerabino who seemed to see the scale of the miscarriage of justice with Trumps commutation clearest.

It wasnt just the tens of millions of dollars that Melgen had bilked from taxpayers, wrote Cerabino. That was bad enough. But not the heart of it.

Cerabino continues. There was an element of unnecessary physical pain for those unsuspecting patients who had to endure Melgens self-enriching, medically dubious eye treatments, which included eye injections and retinal laser blasts.

The Palm Beach Post columnist points out the treatments were described at trial by expert witnesses as elder abuse,unconscionable and horrifying.

Thats the guy who needs to be set free? asked Cerabino. The guy who found a way to get rich by mistreating old peoples eyes?

Evidently the suffering of Melgens army of unsuspecting elderly patients was of no consequence for Menendez, who according to his statement after the commutation was still willing to use his influence for the wayward eye doctor.

Months ago, I was asked if I could offer insight about an old friend, and I did, along with what I understand were more than 100 individuals and organizations, including his former patients and local Hispanic groups familiar with Sals leadership and philanthropy in the South Florida community, Menendez said in a statement.

The blind spot endures.

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The Blind Spot Endures: A Profile of Just One of Trump's Last Minute Intercessions - InsiderNJ

I’m a First Amendment scholar and I think Big Tech should be left alone – The Conversation US

Twitters banning of Trump an action also taken by other social media platforms, including Facebook, Instagram, YouTube and Snapchat has opened a fierce debate about freedom of expression and who, if anyone, should control it in the United States.

Ive written and taught about this fundamental issue for decades. Im a staunch proponent of the First Amendment.

Yet Im perfectly OK with Trumps ban, for reasons legal, philosophical and moral.

To begin, its important to point out what kind of freedom of expression the First Amendment and its extension to local government via the Fourteenth Amendment protect. The Supreme Court, through various decisions, has ruled that the government cannot restrict speech, the press and other forms of communications media, whether its on the internet or in newspapers.

Twitter and other social media platforms are not the government. Therefore, their actions are not violations of the First Amendment.

But if were champions of freedom of expression, shouldnt we nonetheless be distressed by any restriction on communication, be it via a government agency or a corporation?

I certainly am. Ive called nongovernmental suppressions of speech to be violations of the spirit of the First Amendment.

Every time CBS bleeps a performance of a hip-hop artist on the Grammys, the network is, in my view, engaging in censorship that violates the spirit of the First Amendment. The same is true whenever a private university forbids a peaceful student demonstration.

These forms of censorship may be legal, but the government often lurks behind the actions of these private entities. For example, when the Grammys are involved, the censorship is taking place out of fear of governmental reprisal via the Federal Communications Commission.

So, why, then, am I OK with the fact that Twitter and other social media platforms took down Trumps account? And, while were at it, why am I fine with Amazon Web Services removing the Trump-friendly social media outlet Parler?

First, a violation of the spirit of the First Amendment is never as serious as a violation of the First Amendment itself.

When the government gets in the way of our right to freely communicate, Americans only recourse is the U.S. Supreme Court, which all too often has supported the government wrongly, in my view.

The courts 1919 clear and present danger and 1978 seven dirty words decisions are among the most egregious examples of such flouting of the First Amendment. The 1919 decision qualified the crystal-clear language of the First Amendment Congress shall make no law with the vague exception that government could, in fact, ban speech in the face of a clear and present danger. The 1978 decision defined broadcast language meriting censorship with the even vaguer indecency.

And a government ban on any kind of communication, ratified by the Supreme Court, applies to any and all activity in the United States period until the court overturns the original decision.

In contrast, social media users can take their patronage elsewhere if they dont approve of a decision made by a social media company. Amazon Web Services, though massive, is not the only app host available. Parler may have already found a new home on the far-right hosting service Epik, though Epik disputes this.

The point is that a corporate violation of the spirit of the First Amendment is, in principle, remediable, whereas a government violation of the First Amendment is not at least not immediately.

Second, the First Amendment, let alone the spirit of the First Amendment, doesnt protect communication that amounts to a conspiracy to commit a crime, and certainly not murder.

I would argue that its plainly apparent that Trumps communication whether it was suggesting the injection of disinfectant to counteract COVID-19 or urging his supporters to fight to overturn the election repeatedly endangered human life.

Given that Trump was still president albeit with just a few weeks left in office when Twitter banned him, that ban was, indeed, a big deal.

Jack Dorsey, co-founder and CEO of Twitter, appreciated both the need and perils of such a ban, tweeting, This moment in time might call for this dynamic, but over the long term it will be destructive to the noble purpose and ideals of the open internet. A company making a business decision to moderate itself is different from a government removing access, yet can feel much the same.

In other words, a company that violates the spirit of the First Amendment can feel much the same to the public as government actually violating the First Amendment.

To be sure, I think its concerning that a powerful cohort of social media executives can deplatform anyone they want. But the alternative could be far worse.

Back in 1998, many were worried about the seeming monopolistic power of Microsoft. Although the U.S. government won a limited antitrust suit, it declined to pursue further efforts to break up Microsoft. At the time, I argued that problems of corporate predominance tend to take care of themselves and are less powerful than the forces of a free marketplace.

Sure enough, the preeminent position of Microsoft was soon contested and replaced by the resurgence of Apple and the rise of Amazon.

Summoning the U.S. government to counter these social media behemoths is the proverbial slippery slope. Keep in mind that the U.S. government already controls a sprawling security apparatus. Its easy to envision an administration with the ability to regulate social media not wielding that power to protect the freedoms of users but instead using it to insulate themselves from criticism and protect their own power.

We may grouse about the immense power of social media companies. But keeping them free from the far more immense power of the government may be crucial to maintaining our freedom.

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I'm a First Amendment scholar and I think Big Tech should be left alone - The Conversation US

Other View: First Amendment doesn’t apply to Twitter, Facebook – Duluth News Tribune

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

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

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

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

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

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

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

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

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

The Free Press, Mankato, Minnesota

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

Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment? – Reason

Say that a state creates a law that protects speech more than the First Amendment does; for instance, say that the state law protects speakers against retaliation or exclusion by

And say that Congress preempts that state law, for instance allowing the private entities to restrict speech on their property (or by their employees or students).

Could that federal law potentially violate the First Amendment, even though it doesn't actually forbid speech, but simply empowers private entities to do so?

Vivek Ramaswamy's and Jed Rubenfeld's Jan. 11 Wall Street Journal op-ed suggests the answer is yes; and on reflection, I think there is a good argument for a version of that position, though I'm not sure whether I'm persuaded by it myself. I'd therefore like to lay out in this post what I think is the best argument inspired by their claims, though not one that necessarily agrees with them in all details.

[1.] Let us begin with a precedent. (Remember, "law is the only discipline in which 'that's an original idea' is a pejorative.") In 1943, Nebraska enacted a state constitutional provision that provided that employers and unions can't require employees to join unions. In the Railway Labor Act of 1951, Congress preempted such state statutes, allowing (but not requiring) railroad employers and railroad unions to demand union membership as a condition of employment. Employees sued a railroad and a union under the Nebraska state provision for imposing such a "closed shop" contract. The defendants raised the federal Act as a defense, arguing that it preempted the state provision.

The U.S. Supreme Court (Railway Employes v. Hanson (1956)) concluded that the Railway Labor Act's preemption of state law needed to be evaluated under the First Amendment:

The union shop provision of the Railway Labor Act is only permissive. Congress has not compelled nor required carriers and employees to enter into union shop agreements. [But we agree with] the view that justiciable questions under the First and Fifth Amendments were presented since Congress, by the union shop provision of the Railway Labor Act, sought to strike down inconsistent laws in 17 States. [We agree that] "Such action on the part of Congress is a necessary part of every union shop contract entered into on the railroads as far as these 17 States are concerned for without it such contracts could not be enforced therein."

If private rights [presumably rights secured by the Nebraska no-closed-shop provision] are being invaded, it is by force of an agreement made pursuant to federal law which expressly declares that state law is superseded. In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed. The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates, though it takes a private agreement to invoke the federal sanction.

The Court concluded that the Act was substantively consistent with the First Amendment, because mere "compulsory membership" in a union does not necessarily "impair freedom of expression," in part because "Congress endeavored to safeguard against that possibility by making explicit that no conditions to membership may be imposed except as respects [the payment of union dues] . If other conditions are in fact imposed, or if the exaction of dues is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case." And in Machinists v. Street (1961), the Court did suggest that the First Amendment would bar spending compulsory union dues collected under the Act "for political causes which [the coerced employee] opposes," though the Court avoided that constitutional problem by reading the statute to prohibit such exactions of dues for political purposes.

Now Will Baude and I (and others) have argued that in fact the First Amendment inquiry here was substantively misplaced, and coercive contributions that are used for political causes are generally not unconstitutional. But this specific detail (on which the Court has disagreed with us) isn't important here. Rather, I think this case sets forth a more general principle:

Questions under the First Amendment are presented when Congress preempts state law that protects speech against private action, because the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.

This does not necessarily mean that the private actor (employer and the union) somehow becomes a "state actor" (or, more precisely, a "government actor") fully bound by the First Amendment. The government action is Congress's preemption of the state law protection. That government action must be judged under the First Amendment. And if the First Amendment blocks that preemption, that simply means that state law springs back into force and continues to restrain the private actors.

The splintered decision in Denver Area Ed. Telecomm. Consortum, Inc. v. FCC (1996) seems to reinforce this principle: A majority of the Justices concluded there that a federal statute that allowed (but didn't require) cable operators to block indecent material, and preempted contrary common-carrier-like rules or local control rules, was subject to First Amendment scrutiny and was indeed partly invalid. (See Part IV of the opinion and Part II of Justice Stevens's concurrence for more details.)

[2.] OK, now let's see how this principle might play out in three hypothetical contexts, before we turn to 230. My own state of California has three state law rules that protect speech against private entities (one of them is based on the state constitution and the other two on state statutes, but that distinction doesn't matter for First Amendment purposes):

Let's say that Congress enacted a Private Shopping Mall Discretion Act, a Private Employer Discretion Act, and a Private Educational Institution Discretion Act, which allowed (but didn't require) all privately owned shopping centers, employers, and educational institutions to exclude whatever speech they liked.

I think that, under Hanson and Denver Area, those statutes could be challenged under the First Amendment. Again, the statutes wouldn't make the mall owners, employers, and educational institutions into state actors bound by the First Amendment. But the Hanson/Denver Area principle would allow visitors, employees, and students to sue under the state laws, and then try to use the First Amendment to invalidate any federal statutory defense that the defendants interpose.

This seems especially apt if the hypothetical Private Discretion Acts were viewpoint-based, e.g., "a private college shall have the power to discipline a student for the student's speech, notwithstanding any contrary state law, if the speech constitutes 'hate speech'"or, if you prefer, "a private college shall have the power to discipline a student for the student's speech, notwithstanding any contrary state law, unless the speech expresses support for federal government policies." Such selective continued protection for some speech, or selective enabling of private suppression of other speech, should at least be subject to substantive First Amendment scrutiny (whether or not you think it might sometimes pass such scrutiny).

But under Hanson and under the logic of Denver Area, I think even a content-neutral statute preempting such speech protections would be subject to First Amendment scrutinyto be sure, the more forgiving intermediate scrutiny applicable to content-neutral speech restrictions.

[3.] Now, if you're with me so far, let's see how this would play out as to 230, and in particular 230(c)(2)(A),

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

Imagine that a state enacts a Social Media Common Carrier Act, which provides something like this:

Just as phone companies are common carriers, which may not deny service based on their users' viewpoints or other attributes, so social media networks may not terminate a user account or delete content supplied by a user based on the ideological viewpoint or factual assertions expressed by that user.

(Assume that the law is somehow largely limited to speech posted and viewed by users within the state, and therefore avoids Commerce Clause problems. Assume also that such an Act wouldn't itself violate the social media network's First Amendment rights, perhaps because a court would conclude that such a mandate is consistent with Pruneyard Shopping Center v. Robins, Turner Broadcasting System v. FCC, and Rumsfeld v. FAIR, all of which upheld some requirements that private entities open up their property to outside speakers. Both are complex questions, but questions for another day. Finally, note that the hypothetical rule isn't quite a traditional common-carrier rule, but there are many different ways to craft such nondiscrimination mandates.)

Users sue Twitter under this state law for banning them based on viewpoints that they have expressed. Twitter says the federal 230(c)(2)(A) preempts the state law. But the users respond that 230(c)(2)(A) is itself a speech restriction that must be evaluated under the First Amendment; adapting Hanson, they argue:

Section 230(c)(2)(A) is only permissive. Congress has not compelled nor required social media networks to restrict user speech.

Nevertheless, justiciable questions under the First Amendment are presented since Congress, by 230(c)(2)(A), sought to strike down inconsistent laws protecting user speech against the social media companies. Such action on the part of Congress is a necessary part of Twitter's editing decisions as far as this state is concerned for without it such banning could not be done within this state.

If private rights secured by the state law are being invaded, it is by force of a Twitter policy made pursuant to federal law which expressly declares that state law is superseded. In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.

The enactment of the federal statute authorizing social media networks to impose such speech restrictions is the governmental action on which the Constitution operates, though it takes a private decision to invoke the federal sanction.

I think this is at least a credible argument, which a court could use to evaluate 230(c)(2)(A) as a speech restriction that triggers the First Amendment. Perhaps 230(c)(2)(A) passes First Amendment scrutiny, but given Hanson and Denver Area, there's a serious basis for a court to apply such scrutiny.

[4.] Finally, let's turn to perhaps the most ambitious theory, focused on 230(c)(1). Recall that 230(c)(2)(A), which I quoted above, actually has little practical effect right now: It preempts state laws that would limit service provider editing discretion, but so far there are in practice virtually no such laws, and no general common carrier statutes / viewpoint discrimination bans of the sort I hypothesized (though some such bans are being contemplated by some state legislatures).

The important provision of 230 is 230(c)(1), which protects social media networks from libel liability (and other state-law liability) for those user posts that they don't edit out. Section 230(c)(1) is used all the time to block such lawsuits.

But wait: Sections 230(c)(1) and (c)(2) were deliberately designed to preempt a specific rule that emerged out of two trial court cases applying New York state law, Cubby v. Compuserve, Inc. (S.D.N.Y. 1991) and Stratton Oakmont, Inc. v. Prodigy Services Co. (N.Y. trial ct. 1995). That rule, to oversimplify, was:

This rule (to be sure, one that was in its infancy at the time 230(c)(1) preempted it) isn't a categorical protection like the hypothetical Social Media Common Carrier Act. But it is still a form of speech protection against private restriction: It encourages private platforms not to restrict speech, by offering them immunity if they provide unrestricted posting rights, but threatening them with some degree of liability if they restrict user speech. And it's clear that 230 (including (c)(1)) was indeed intended to encourage service providers to feel free to restrict speech; the title of 230, after all, is "Protection for private blocking and screening of offensive material."

If this analysis is right, then the constantly invoked 230(c)(1), and not just the rarely applicable 230(c)(2)(A), itself constitutes Congressional preemption of state law that protects speech against private action. And as a result, the 230(c)(1)/(2)(A) combo, and not just 230(c)(2)(A), would need to be evaluated under the First Amendment. (Recall the principle we gleaned from Hanson and Denver Area: "Questions under the First Amendment are presented when Congress preempts state law that protects speech against private action.")

Again, 230 might be seen as constitutionally permissible, perhaps on the theory that its preemption of this state law protection for private speakers passes muster under the intermediate scrutiny applicable to content-neutral laws. But at least courts would consider the question whether 230, by enabling and indeed promoting private restriction of speech, notwithstanding contrary state law rules aimed at protecting speech, themselves violate the First Amendment.

[5.] As I mentioned at the outset, I'm not sure that this analysis is right. Perhaps Hanson and Denver Area (discussed in item 1) are themselves mistaken in applying First Amendment scrutiny here. Or perhaps other precedents that I've missed pull sufficiently in the opposite direction. Or perhaps somewhere in the path from item 1 to 2 to 3 to 4 the analogies go off the rails. And I stress again that this analysis is not identical to the Ramaswamy & Rubenfeld position, though it is inspired by that position.

But I thought I'd set forth what I thought was the strongest argument in support of that view, and see what others have to say about it. I'd love to hear people's reactions, and to adapt my own thinking in light of them.

See more here:

Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment? - Reason

Letter to the editor: Put the First Amendment first – Daily Mississippian

The start to 2021 has not been any good indicator that this year will be anything more than an even more terrible sequel to 2020. Both sides of the aisle are fighting back, and actions are ever more favored than words. Large media corporations silence anyone who disagrees with them, and many politicians say one thing to earn votes and then do the opposite once they are in office. It does in fact feel as though we have lost our outlet to express ourselves in a meaningful and constructive way. We see provocative news stories of impending doom and violent outbursts. We are inundated with despair and shock at what is happening to our country, regardless of what our political beliefs happen to be.

The Founding Fathers issued the First Amendment not only as a law to be upheld by our government but also as a standard to guide every American throughout their lives. Speak out, and allow others to speak. Hold true to your beliefs, and permit others to hold theirs. This right is our first, and in my honest opinion, our strongest defense against tyranny and injustice.

Thankfully, it has not been and truly never can be stolen away from the masses. Though you may not be a Shakespeare or Seuss, you still possess the ability to write out your thoughts effectively and persuasively. Speak out online, in newspapers and in public. Engage with your state and local politicians: your senators, representatives, governor, mayor whoever is willing to listen. Let them know what you want from them and the actions you believe they should take. It is politicians duty to listen to their constituents, and it is our civic duty to speak when we perceive any form of injustice.

Tanner Engles is a junior majoring in computer science.

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Letter to the editor: Put the First Amendment first - Daily Mississippian

Napolitano: Does the First Amendment restrain Big Tech? – Daily Herald

When Thomas Jefferson wrote the Declaration of Independence, he included in it a list of the colonists grievances with the British government. Notably absent were any complaints that the British government infringed upon the freedom of speech.

In those days, public speech was as acerbic as it is today. If words were aimed at Parliament, all words were lawful. If they were aimed directly and personally at the king as Jeffersons were in the Declaration they constituted treason.

Needless to say, Jefferson and the 55 others who signed the Declaration would all have been hanged for treasonous speech had the British prevailed.

Of course, the colonists won the war, and, six years afterward, the 13 states ratified the Constitution. Two years after ratification, the Constitution was amended by adding the Bill of Rights. The first ratified amendment prohibited Congress from doing what the colonists never seriously complained about the British government doing infringing upon the freedom of speech.

James Madison, who drafted the Bill of Rights, insisted upon referring to speech as the freedom of speech to emphasize that it preexisted the government. If you could have asked Madison where he believed the freedom of speech came from, hed have said it was one of the inalienable rights Jefferson wrote about in the Declaration.

Stated differently, each of the signatories of the Declaration and ratifiers of the Bill of Rights manifested in writing their unambiguous belief that the freedom of speech is a natural right personal to every human. It does not come from the government. It comes from within and cannot be taken away by legislation or executive command.

Yet, a mere seven years later, during the presidency of John Adams, Congress enacted the Alien and Sedition Acts, which punished speech critical of the government.

So, how could the same generation in some cases the same human beings that prohibited congressional infringement upon speech have enacted a statute that punished speech?

To some of the framers the Federalists who wanted a big government as we have today infringing upon the freedom of speech meant silencing it before it was uttered. Today, this is called prior restraint, and the Supreme Court has essentially outlawed it.

To the antifederalists or Democratic-Republicans, as they called themselves the First Amendment prohibited Congress from interfering with or punishing any speech.

Adams Department of Justice indicted, prosecuted and convicted antifederalists for their public speech critical of the government.

When Jefferson won the presidency and the antifederalists won control of Congress, the Federalists repealed the speech suppression parts of the Alien and Sedition Acts on the eve of their departure from congressional control, lest it be used against them.

During the Civil War, President Abraham Lincoln locked up hundreds of journalists in the North who were critical of his war efforts. During World War I, President Woodrow Wilson whom my alma mater, Princeton University, is trying to erase from its memory arrested folks for reading the Declaration of Independence aloud and singing German beer hall songs.

Lincoln argued that preserving the Union was more important than preserving the First Amendment, and Wilson argued that the First Amendment only restrained Congress, not the president. Both arguments have since been rejected by the courts.

In the 1950s, the feds successfully prosecuted Cold War dissenters on the theory that their speech was dangerous and might have a tendency to violence. Some of the victims of this torturous rationale died in prison.

The governments respect for speech has waxed and waned. It is at its lowest ebb during wartime. Of course, dissent during wartime which challenges the governments use of force to kill is often the most important speech.

The speech we love needs no protection. The speech we hate does. The government has no authority to evaluate speech. As the framers understood, all people have a natural right to think as we wish and to say and publish whatever we think. Even hateful, hurtful and harmful speech is protected speech.

Yet, in perilous times, such as the present, we have seen efforts to use the courts to block the publication of unflattering books. We have seen state governors use the police to protect gatherings of protesters with whose message they agreed and to disburse critical protesters. We have seen mobs silence speakers while the police did nothing.

And in perilous times, such as the present, we have seen Big Tech companies silencing their opponents. I hate when they do that, but they have every right to do so. They own the bulletin board. Twitter and Facebook can ban any speech they want because they are not the government. And the First Amendment only restrains the government. In the constitutional sense, free speech means only one thing free from government interference.

Punishing speech is the most dangerous business because there will be no end. The remedy for hateful or threatening speech is not silence or punishments; it is more speech speech that challenges the speaker.

Why do government officials want to silence their opponents? They fear an undermining of their power. The dissenters might make more appealing arguments than they do. St. Augustine taught that nearly all in government want to tell others how to live.

How about we all say whatever we want and the government leaves us alone?

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Napolitano: Does the First Amendment restrain Big Tech? - Daily Herald

Ask the expert: The First Amendment and free speech – MSUToday

Nancy Costello, director of the First Amendment Law Clinic and supervisor of the McLellan Free Speech Online Library in the Michigan State University College of Law, discusses the First Amendment and freedom of speech. The First Amendment Law Clinic is the only program in the country solely dedicated to the protection of student speech and press rights.

In simple terms, what is the First Amendment and what does it do?

The First Amendment to the United States Constitution is part of the Bill of Rights and protects freedom of speech, freedom of religion, freedom of assembly, freedom of the press and the right to petition. The First Amendment is one of the most important amendments for the protection of democracy.

Nancy Costello, director of the First Amendment Law Clinic and supervisor of the McLellan Free Speech Online Library in the Michigan State University College of Law.

When was it created?

The First Amendment is part of the Bill of Rights. To protect individual rights, the framers of the U.S. Constitution added 10 amendments to the document in 1791, four years after the Constitution was ratified.

What does the First Amendment say about freedom of speech?

Generally speaking, it means that the government may not jail, fine or impose civil liability on people or organizations based on what they say or write, except in limited circumstances.

President Donald Trump recently was suspended from a number of social media platforms. Is this a violation of his First Amendment rights?

Facebook, Twitter, Instagram or any similar social media platform can censor any persons speech because they are private companies. Censorship is when an entity punishes individuals for their speech or prevents the speech from being expressed. Free speech is the ability to express ones thoughts and opinions without fear of being punished by the government.

The First Amendment protects against the government from censoring speech. None of these social media platforms are part of the government, so President Trump cannot claim his First Amendment rights have been violated.

President Trump was impeached a second time for incitement of insurrection. What is incitement speech?

Incitement speech is not protected by the First Amendment. Incitement speech is when someone encourages lawless action, and that lawless action is imminent and likely. It could be argued that Trump incited the mob violence on Jan. 6 in his summoning and assembling of supporters at the White House rally, his repeated claims that he won the election and his exhorting the crowd to go to the Capitol. Among other things, the president told the crowd, If you dont fight like hell, youre not going to have a country anymore. Not long after Trumps speech, members of the crowd converged on the U.S. Capitol, broke through doors and windows, invaded the Senate and House chambers and private offices, and had violent clashes with police resulting in deaths.

What types of speech are not protected under the First Amendment?Types of speech that arent protected include:

Does the First Amendment only protect U.S. citizens?

Theres no citizenship requirement for First Amendment protection. If you are a resident of the United States, you have freedom of speech, religion, press, assembly and petition.

Link:

Ask the expert: The First Amendment and free speech - MSUToday

Do Critics of Police Have the First Amendment Procedural Protections That Nazis Get? – Reason

The Ohio Supreme Court just granted review inM.R. v. Niesen, on the question whether "when a lower court imposes a prior restraint on expression, immediate appellate review is required." (The underlying case involves a Cincinnati policeman who sued for libel over a post that accused him "of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the 'ok' sign at a City Council meeting held to address concerns by those in the Black Lives Matter Movement." The judge responded by issuing apreliminary injunction ordering the defendants not to "publiciz[e], through social media or other channels, Plaintiff's personal identifying information," which apparently includes the policeman's name.)

I think the answer is yes, given the National Socialist Party of Am. v. Village of Skokiecase. With the indispensable help of our excellent pro bono counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson), the UCLA First Amendment Clinic had filed an amicus brief supporting that position and arguing that the court should hear the case, on behalf of Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O'Neill, Margaret Christine Tarkington, Aaron H. Caplan; the National Writers Union, the Society of Professional Journalists, the NewsGuild-CWA, Euclid Media Group; and me. Here's the heart of our argument (which I expect we'll also resubmit as a merits-stage brief to the court, now that it has agreed to consider the merits):

{The plaintiff, a police officer, sued the defendants, Ohio citizens who criticized his on-duty conduct providing security at a City Council meeting at Cincinnati City Hall. The complaint raised a defamation claim and other similar tort claims. Less than two days after filing the complaint, after a hearing at which the defendant-appellants were present and at which the plaintiff presented no testimony, the court issued an order that "enjoined" the appellants "from publicizing, through social media or other channels, Plaintiff's personal identifying information." The order did not define "personal identifying information," but the only statute that defines the phrase, R.C. 2913.49(A), defines it to include a person's "name."}

Within 48 hours of filing his complaint, [plaintiff] sought and received a sweeping prior restraint: an order forbidding two Ohio citizens from publishing information about a public official arising out the performance of his official duties. That order, like all prior restraints, is presumptively unconstitutional. But when those citizens, Julie Niesen and Terhas White, appealed that order to the First District, the appellate court dismissed the appeal, concluding that there was no final order.

That dismissal was wrong, and there are at least four reasons why this case presents substantial constitutional questions and issues of public or great general interest.

[A.] The order is a prior restraint of the appellants' free-speech rights.

"The term 'prior restraint' is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, 25(some quotation marks omitted). "Temporary restraining orders and permanent injunctionsi.e., court orders that actually forbid speech activitiesare classic examples of prior restraints." Id.(quotation marks omitted). "It is inescapable that a regulation of speech 'about' a specific person . . . is a regulation of the content of that speech and must therefore be analyzed as a content-based regulation." Bey at 33.

"[B]efore a court may enjoin the future publication of allegedly defamatory statements based on their content, there must first be a judicial determination that the subject statements were in fact defamatory." Bey at 44(citing O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 246, 327 N.E.2d 753 (1975)). Likewise, a court may enjoin speech that falls within some other exception only after "there has been" a "judicial determination that future postings" by the plaintiffs will fit within that exception (in Bey, this was the "speech integral to criminal conduct" exception). Id. at 45, 47.

The court below forbade Ms. Niesen and Ms. White from mentioning the name of a public official (police officer "M.R.") in any forum or medium, and it thus is a content-based order. This was a decision made by one judge, without the opportunity for a full trial or even comprehensive briefing, less than 48 hours after the complaint was filed, and it thus was not made after judicial determination that the statements were in fact defamatory. Nor is the order limited to forbidding libelous speech, speech that constitutes true threats, or speech that falls into any other First Amendment exception, such as the exception for intentional incitement of imminent and likely criminal conduct, see Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). It thus does not satisfy the requirement of falling outside the protection of the First Amendment.

The order prohibits speech that is fully protected by the First Amendment and by Art. I, 11 of the Ohio Constitution. It has no expiration date. The order is a prior restraint of the appellants' speech. And "Prior restraints on First Amendment expression are presumptively unconstitutional." Bey at 60. Cases seeking review of presumptively unconstitutional orders restraining speech are the epitome of cases raising substantial constitutional questions.

[B.] The prior restraint impinges upon the public's rights.

The First Amendment protects not only the rights of speakers, but also the rights of listeners. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 609 (1976)(Brennan, J., concurring) ("[I]t is the hypothesis of the First Amendment that injury is inflicted on our society when we stifle the immediacy of speech.") (emphasis added); McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir. 2015) (anti-libel injunction has "the potential to harm nonparties to the litigation because enjoining speech harms listeners as well as speakers.").

Prior restraints always interfere with the public's constitutional right to listen, but this particular prior restraint also interferes with the public's constitutional right to accessincluding to listen to accounts ofcourt proceedings. That right is well-established. See In re T.R. (1990), 52 Ohio St.3d 6, 16 n.9 (adult civil and criminal proceedings are "presumptively open to the public"); State ex rel. The Repository v. Unger (1986), 28 Ohio St. 3d 418, 421 (both pre-trial and trial proceedings are open to the public); Sup.R. 45(A) (case documents are open to the public). This order interferes with that constitutional right because it prohibits the defendants from discussing the plaintiff by name when talking about this litigation.

The public also has a right (and indeed, a duty) to supervise and scrutinize public officials regarding the performance of their official duties. That is true generally, but this Court has said that it is particularly true when the public official is a police officer and when the conduct being discussed is his participation in court proceedings. See Soke v. Plain Dealer (1994), 69 Ohio St.3d 395, 397.

The order in this case thus represents a constitutional quadruple-whammy: by allowing the public official here to surreptitiously use the Ohio courts to immunize himself from such public scrutiny, the order has interfered with the appellants' speech rights generally; interfered with the public's right to listen to speech on matters of public interest; interfered with the public's right and duty to supervise the proceedings of the state court system that dispenses justice in their name; and interfered with the public's right and obligation to supervise public officials' performance of their official duties. The First Amendment does not permit this type of speech restriction.

[C.] The dismissal order elevates state civil procedure rules over the First Amendment and form over substance.

Because of all the foregoing constitutional problems, the U.S. Supreme Court has held that prior restraints must be subject to immediate appellate review. National Socialist Party of America v. Skokie, 432 U.S. 43 (1977). But the Court of Appeals refused to follow this precedent, explaining its decision to disregard the U.S. Supreme Court's command by saying that it viewed the order as just a "temporary restraining order," and not a preliminary injunction.

That refusal raises yet another substantial constitutional issue. Constitutional rights, including the First Amendment precedents requiring immediate appellate review of prior restraints, apply regardless of state-law distinctions between TROs and preliminary injunctions. Holding otherwise would permit state law (or, more precisely, state court rules) to dictate the applicability of federal constitutional law. That would wrongly elevate state-law form over federal substance, turning the Supremacy Clause on its head. See U.S. Const., art. IV, cl. 2 (federal Constitution and laws "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding"). Federal law controls over state procedure; not the other way around.

Moreover, the First District's reliance on the supposed status of the prior restraint as a TRO was an inaccurate elevation of form over substance. This Court recently (and unanimously) recognized that TROs can be "classic examples of prior restraints." Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, 25. The immediate appealability of the order therefore does not depend at all on whether the order was a TRO, a preliminary injunction, or anything else.

{And, though it does not matter to the constitutional issue, the appellate court's conclusion that the order was a TRO and not a preliminary injunction is likely incorrect. The order is properly seen as a preliminary injunction because it was not granted ex parte, cf. Civ.R. 65(A) ("A temporary restraining order may be granted without written or oral notice... ."), and, as the Court of Appeals observed at 10, the duration of the order "extended . . . past the expiration of the period set forth in Civ.R. 65 for a temporary restraining order." See id. (limiting TRO to 14 days plus one like extension for good cause; the order here was journalized in July and apparently was intended by the common pleas court to remain in effect at least until September 1).}

[D.] The dismissal order created a split between appellate districts.

Even if the First District's dismissal order had no constitutional implications, it would warrant review and correction by this Court because it created a district split. The First District below held that the First Amendment offers no right to immediate appellate review of an ostensible temporary restraining order. M.R. v. Niesen, 1st Dist. No. C-200302 at 1 (Sept. 9, 2020).

But the Second District has held that "Because the right of free speech must be protected against the chilling effect resulting from even its temporary infringement, the United States Supreme Court held in [Nat'l Socialist Party] that: 'If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, including immediate appellate review. . . .'" Int'l Diamond Exch. Jewelers, Inc. v. U.S. Diamond & Gold Jewelers, Inc., 70 Ohio App. 3d 667, 671, 591 N.E.2d 881, 884 (2d Dist. 1991) (citations and some internal markup omitted; emphasis in original). And "Given that an immediate appellate forum for review of an order that imposes a prior restraint upon the exercise of free speech is necessitated by the federal Constitution," an appellant need not "wait until the case has been concluded in the trial court before he may challenge the order." Id. See also Connor Group v. Raney, 2d Dist. Montgomery No. 26653, 2016-Ohio-2959, at 1 ("Although the issuance of a preliminary injunction by a trial court generally is not viewed as a final appealable order, . . . a preliminary injunction that constitutes a prior restraint on speech requires immediate appellate review.").

The Eleventh District agrees: "[W]here an injunction seeks to 'impose a restraint [on First Amendment rights],' there must be strict procedural safeguards, including immediate appellate review." Puruczky v. Corsi, 11th Dist. Geauga No. 2017-G-0110, 2018-Ohio-1335, 15 (paraphrasing Nat'l Socialist Party; some internal markup omitted). "Since Corsi alleges that the injunction substantially impacts his rights and constitutes a prior restraint on his speech, we will proceed to a review of the merits of his appeal." Id.

Unlike the First District's decision below, the holdings of those districts offer no loophole for temporary restraining orders, and those courts exercised their jurisdiction and reviewed (and reversed) the prior restraints. And both Puruczky and Connor Group were libel cases, like this one.

And the Second and Eleventh Districts' approach is correct: As the U.S. Supreme Court has recognized, even temporary restraints on speech can create a chilling effect on the exercise of free speech. See Int'l Diamond, 70 Ohio App. 3d at 671. This Court should also exercise its discretion to review this case and resolve this split of authority on this important constitutional issue that affects fundamental rights. Unless and until it does, the rights of defendants to speak and of the public to listen and supervise their courts and their public officials, will depend on which of the State's appellate districts they reside in.

Proposition of Law no. 1: An order that imposes a prior restraint on speech must be subject to immediate appellate review.

"[I]mmediate appellate review" of prior restraints is constitutionally required. National Socialist Party, 432 U.S. at 44. See also Puruczky; Connor Group; Int'l Diamond, supra.

This principle is fully applicable here. Puruczky and Connor Group involved injunctions entered in response to libel lawsuits, just as this case does. National Socialist Party famously involved Nazis marching in Skokie, Illinois. Nat'l Socialist Party, 432 U.S. at 4344; see also Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978). If Nazis who want to march in a neighborhood populated with thousands of Holocaust survivors are entitled to immediate appellate review of an injunction against their speech, then citizens criticizing a police officer must be entitled to the same.

This constitutional requirement flows naturally from courts' recognition of the dangers of prior restraints. "A prior restraint...has an immediate and irreversible sanction" that is unlike any other remedy a court may impose, including "a judgment in a defamation case" or even "[a] criminal penalty," because all other sanctions are "subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative" for other remedies. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).

That "panoply of protections" does not exist for a prior restraint, which is why "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Id.Prior restraints "fall on speech with a brutality and finality all their own." Id. at 609(Brennan, J., concurring in reversal of prior restraint).

More broadly, every day that a prior restraint remains in place is a First Amendment violation, and "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). "'Where . . . a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.'" CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994)(Blackmun, J., in chambers) (citation omitted); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006)(endorsing this principle as requiring "expeditious[]" decisionmaking as to restraints on First Amendment rights, there the right of access to court records); Doe v. Pub. Citizen, 749 F.3d 246, 27273 (4th Cir. 2014)(same); Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)(same), superseded on other grounds, as stated in Bond v. Utreras, 585 F.3d 1061, 1068 n.4 (7th Cir. 2009). And of course this principle applies beyond the mainstream media, and covers social media users as well.

{Art. I, 11 of the Ohio Constitution "guarantees to '[e]very citizen' the right to publish freely his or her sentiments on all subjects, regardless of that citizen's association or nonassociation with the press." Wampler v. Higgins, 93 Ohio St. 3d 111, 121 (2001). "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." Citizens United v. United States, 558 U.S. 310, 352 (2010)(internal quotation marks omitted). "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. City of Griffin, 303 U.S. 444, 452 (1938); see also Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1092 (Fla. Dist. Ct. App. 2014)("Angry social media postings are now common....But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk," and are just as fully protected by the First Amendment).}

The injury inflicted by prior restraints is thus not remediable by vacatur or reversal of a prior restraint at a distant future date after final judgment, especially where (as here) the prior restraint relates to a public official and his conduct in official and court proceedings. The parties and the public have a right to speak contemporaneously, not merely retrospectively, both about public officials and about court proceedings. See Bridges v. California, 314 U.S. 252, 268 (1941)("[P]ublic interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist."); Doe v. Pub. Citizen, 749 F.3d 246, 272 (4th Cir. 2014)(acknowledging the harms of "delayed disclosure" with respect to court proceedings). Immediate appellate review is thus critical to make sure that the injunction does not cause such a loss of First Amendment freedoms.

The logic of these cases turns on the commands imposed by the First Amendmentcommands that override any contrary state procedural distinctions that would limit immediate appellate review. And of course both this Court and the U.S. Supreme Court have recognized that "Temporary restraining orders," no less than "permanent injunctions," "are classic examples of prior restraints" that are fully subject to First Amendment constraints. Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, 25; Alexander v. United States, 509 U.S. 544, 550 (1993).

Yet the First District took a sharply different approach; it concluded that neither the U.S. Supreme Court's Skokie decision nor the Second and Eleventh Districts' decisions applied here, simply because this case involved a temporary restraining order. M.R., 1st Dist. No. C-200302 at 9. The First District did not acknowledge this Court's or the U.S. Supreme Court's treatment of temporary restraining orders as prior restraints, nor did it explain why the First Amendment rule of immediate appellate review of prior restraints would be limited by the TRO/preliminary injunction distinction.

This Court's review is necessary to set forth a uniform rule on when immediate appellate review of prior restraints is necessary.

Conclusion

Prior restraints on speech are rarely constitutional; and to make sure that unconstitutional prior restraints suppress speech for as short a time as possible, both the U.S. Supreme Court and Ohio courts have required that such restraints be subject to immediate appellate review. The injunction in this case is a prior restraint, and thus subject to immediate appellate review; indeed, it is a content-based prior restraint, and one that is not limited to libelous speech or to speech that falls within a First Amendment exception. This Court should step in to correct the serious First Amendment violation in this case, and resolve the disagreement among the Courts of Appeals on whether the normal First Amendment rules apply to temporary restraining orders.

See more here:

Do Critics of Police Have the First Amendment Procedural Protections That Nazis Get? - Reason

First Amendment Coalition Files Pleading Asking Appeal Court to Reject Cop Union Attempt to Stop Easy Access to Police Public Records – The Peoples…

By Anika Khubchandani and Lisbeth Martinez

VENTURA The First Amendment Coalition (FAC)a non-profit public organization committed to freedom of speech, transparency and accountability in government, and community involvement in civic lifehas found itself battling police unions attempting to stop the disclosure of officer files.

The San Raphael-based FAC, founded in 1988, focuses on providing legal consultations on First Amendment issues in addition to overseeing legislation on free speech.

Since the passing of Senate Bill 1421 in 2019, all police records, including officer use-of-force incidents, sexual assault, and acts of dishonesty, must be made accessible to the public. But it hasnt been easy with pushback from unions representing law enforcement.

And, FAC has now become involved in many cases throughout California in which unions representing law enforcement have sought to enjoin the disclosure of records required to be made public.

Before the law went into effect, many law enforcement unions challenged Section 832.7 of SB 1421 in the courts, arguing that the Public Records Act only applied to records regarding incidents after January 1, 2019, making pre-2019 incidents retroactively impermissible. Courts throughout California have ruled that SB 1421 requires the disclosure of pre-2019 records.

Except Californias Second District Court of Appeal in Ventura County.

In this case, the Ventura County Deputy Sheriffs Association (VCDSA) made the same argument as many law enforcement unions, claiming that the privacy rights of police officers would be violated with the disclosure of pre-2019 records.

And now FAC has submitted an amicus brief in support of Appellant Todd E. Howeth, acting in his capacity as Public Defender of Ventura County.

Since this case is the only exception in which a court has failed to fully apply SB 1421 to all reports of police misconduct, this outlier decision creates a prohibition on access to public records and makes it difficult for the public to hold police officers accountable for gross injustices due to a lack of transparency, said FAC.

FAC explains that SB 1421 has clear language requiring all records maintained by public agencies of officer-involved shootings, serious uses of force, and incidents of sexual assault and dishonesty resulting in sustained findings, regardless of whether or not they concern pre-2019 incidents.

Mandating the disclosure of these records is not impermissibly retroactive because retroactivity turns on the triggering activity, which in this case is the request for the records, not the incident described in the records, the brief added.

Moreover, there is no legislative intent suggesting that the law was expected to exclude pre-2019 records, according to the FAC, noting the main function of the legislation was to increase transparency regarding all records of serious misconduct and use of force by peace officers to which it applies.

The VCDSAs entire basis of argument is wrong because California case law is clear that peace officers have never had unfettered privacy rights in the types of records at issue here, argued FAC.

The Superior Courts judgment in support of VCDSAs stance on prohibiting Ventura County from disclosing pre-2019 records is wrong because it fails to follow binding authority from the Court of Appeal, First Appellate District, insisted FAC.

And the pleading charges the Superior Court is also wrong on the merits because SB 1421 mandates the transparency of pre-2019 records to the public, and VCDSAs arguments fail to follow these merits.

The FAC filing continues: Considering the application of SB 1421 to pre-2019 incidents does not attach any new legal consequences to past events, the disclosure of the records will not make any conduct that was previously legal illegal or punishable by law. Therefore, since no liability is imposed on police officers for their past conduct, SB 1421 only expands the number of people that can access and obtain certain categories of police personnel records.

These records have always been available in many circumstancesnow they just include members of the public who make requests for information under the California Public Rights Act.

Since transparency and accountability are the foundations of a free and democratic society, FAC urges the Court to reverse the judgment of the Superior Court and compel Ventura County to join other counties in disclosing all applicable public records under SB 1421.

Anika Khubchandani is a 4th year student at UC Davis majoring in both Political Science and Economics. She is from San Jose, CA.

Lisbeth Martinez is a third year at UC Davis, double majoring in Communication and Political Science. She currently lives in Shafter, California.

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First Amendment Coalition Files Pleading Asking Appeal Court to Reject Cop Union Attempt to Stop Easy Access to Police Public Records - The Peoples...

Letter: To everyone, including friends and family members, who feel First Amendment rights are being denied – Sumter Item

I write not wanting to ruffle feathers or strain friendships. Yet, I am reminded that we remain silent because silence is easier. There may come a time I need friends to speak out on my behalf and they might not because I've set a poor example.

I am troubled by the messages that I've received over the last few days by people who are enraged because their freedom of speech rights are being denied. I interpret this to mean their Twitter accounts have been closed.

First, I'd like to point out your freedom of speech has not been denied, or I wouldn't be hearing from you. You are coming through on another forum maybe not the one you typically use, but I'm guessing you'll have a new platform shortly. Remember that Facebook and Twitter are private companies, and they do have the right to require that their users follow certain rules. Remember all of those pages you didn't read when you signed on to be a user? You simply checked, "I agree." Well, that's what you agreed to.

Second, the Supreme Court has ruled that there are a few exceptions to the First Amendment. They include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. There's a reason you can't stand up in a crowded theater and yell "Fire!" It's incitement and causes danger to others as they attempt to flee.

One example: In November, Sidney Powell, then-lawyer for President Trump, accused Dominion Voting Systems of promoting widespread voter fraud through voting machines she claimed were manufactured in Venezuela for the explicit purpose of throwing elections. All of those claims were proven false, but, nonetheless, they were picked up by social media and spread across the internet like mice in a grain bin. The president repeated Powell's claims, and his ardent followers took his words to heart, becoming more and more convinced that their candidate had been robbed of his election. He, as well as other congressmen and women, jumped on the groundswell of this example of misinformation despite state and federal judges (many Republican) throwing the claims out of court.

Employees of Dominion Voting Systems began receiving death threats. Imagine that. You do your job, someone falsely claims you cheated, and without any facts to these claims, your business plummets, and your 300 workers and their families fear for their lives. To top it off, the president of the United States continues to feed this misinformation to his loyal supporters to the point they become outraged.

So, back to the original question: Has this speech included "obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct?" If you, by chance, "shared" information on a "private" company's platform, whether you knew or didn't know that it was false, and it led to defamation and inciting others to violence, then yes - your account was blocked. That is a lesson to us all to be careful about casually hitting the "share" button.

Dominion Voting Systems is suing Sidney Powell for $1.3 billion (with a B), and the CEO claims that's just for starters. More suits are being filed. Are Facebook and Twitter concerned because they allowed their platform to be used to spread the lies that resulted in defamation, fraud, incitement, threats and criminal conduct? You bet.

Like millions of others, I am distressed and sickened that our country is being divided over the issue of honesty a quality I'm sure both sides agree with in principle. I understand completely why others can listen to the same speaker as I do and walk away with a different opinion as to the best approach for making our country a strong, productive and moral society for our children to inherit. In doing so, however, we have to start by agreeing with what is true and what is being propagated for personal and political gain. If someone is milking millions off a falsehood, then they're going to buy the cow? We've got too many cash cows in our midst, and they're doing severe damage to the land we love. It's time to trim the herd.

BRENDA BEVAN REMMES

Mayesville

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Letter: To everyone, including friends and family members, who feel First Amendment rights are being denied - Sumter Item

What the First Amendment Really Says About Whether Trump Incited the Capitol Riot – Slate

This article is part of the Free Speech Project, a collaboration between Future Tense and the Tech, Law, & Security Program at American University Washington College of Law that examines the ways technology is influencing how we think about speech.

TRUMP INCITES MOB read the banner headline on the Jan. 7 New York Times the morning after a seditious crowd stormed the Capitol to try to block certification of the 2020 election results. Aside from certain loyalists, it seems that most agree that under the colloquial understanding of incite, Trump incited the insurrection. Even some insurrectionists pointed the finger at him, like the one who said, We were invited by the president of the United States, as they lay siege to the Capitol.

When the Senate tries Trump on the single charge in his second impeachmentINCITEMENT OF INSURRECTIONit will doubtless consider whether his incendiary Jan. 6 diatribe is protected expression under the First Amendment, as his defenders claim. The question will also be central in a criminal prosecution if the D.C. attorney generals current investigation leads to an indictment. So, did Trumps words satisfy a legal definition of incitement, whether in a criminal court or his Senate trial?

To answer that question, we have to start with Brandenburg v. Ohio (1969). In an opinion joined by all of the justices, the Supreme Court overturned the conviction of a Ku Klux Klan leader under a state statute that criminalized advocacy of crime violence, or other unlawful methods of terrorism as a means of effecting political change and barred assembly with any group that promoted such doctrines. The court held that the law criminalized too much speech because it failed to distinguish between mere advocacy at the heart of political speech and incitement to imminent lawless action, which the First Amendment does not protect.

The Brandenburg ruling proclaimed that freedom of speech protects advocacy of the use of force or of illegal acts except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action. That test continues to govern incitement law.

Brandenburg involved an appeal from a criminal conviction by a Ku Klux Klan leader, Clarence Brandenburg, who had advised the hooded crowd at a Klan gathering that if the federal government continue[d] to suppress the Caucasian race, its possible that there might have to be some revengeance taken. A wooden cross was burned during the rally, and a video revealed weapons. No acts followed. Brandenburgs exhortation lacked imminence. The possibility of illegal forms of revenge was remote; the threat of vengeance was conditional, only to occur if something out of the crowds control happened. Brandenburg did not call for any immediate action.

Trumps speech on Jan. 6 was very different from Brandenburgs. At noonwith Congress scheduled to meet in joint session at 1 p.m.Trump exhorted the crowd: And after this, were going to walk down and Ill be there with you. Were going to walk down to the Capitol. The crowd applauded. Later, wrapping up, he reiterated, So we are going to walk down Pennsylvania Avenue and we are going to the Capitol. Trumps words more than satisfy the imminence requirement.

Whether he directed illegal acts presents a trickier question. Trump did not specifically instruct people to storm the Capitol, disrupt the certification of Bidens election, destroy or steal government property, kill law enforcement officers, or terrorize the officials in the building, including his own vice president. Its important to note, however, that incitement can be implicit as well as explicit.

Trump did nothing to stem the violence while he watched it unfold live on television. He never seriously exhorted the crowd to cease anddesist.

Fact-finders sitting in judgment will decide whether Trumps language was implicitly directed at inciting or producing imminent lawlessness. But public actions from that day suggest it was. He stirred people up with baseless claims, rejected by dozens of courts since Election Day, that he had won the election in a landslide. He insisted, We wont have a country if we dont fight like hell, adding that we will not let them silence your voices. Were not going to let that happen. He questioned the steadfastness of Vice President Mike Pence (Im not hearing good stories), whom the insurgents later threatened to hang. Meanwhile, the audience chanted, Fight for Trump, suggesting they got the message.

That context matters. After Trump spoke, many of those who listened to him in person attacked the Capitol. Trumps own behavior that afternoon also proves significant. He did nothing to stem the violence while he watched it unfold live on television. He never seriously exhorted the crowd to cease and desist. When he finally spoke, he undercut his scripted law-and-order message by reiterating that a sacred landslide victory had been viciously stripped away from great patriots. He urged them to Go home with love. Trump reportedly called freshman Sen. Tommy Tuberville of Alabama, seeking his help in delaying certification of the Electoral College count. All of this demonstrates that Trump intended the result he got: insurrection. It also points to dereliction of duty to protect the government and the Constitution.

Senators or jurors might also justifiably look backward to Trumps Dec. 19 tweet inviting supporters to gather in Washington on Jan. 6Big protest Be there, will be wildand possibly further back to all of Trumps efforts to delegitimize the 2020 election. None of those earlier tweets and statements count as incitement because any threat they contained was remote, but they provide context for how Trumps listeners understood his Jan. 6 speech. Trump, in turn, presumably knew that people from all over the country planned to bring weapons and disrupt the Capitol because they shared their plans on public social media sites. Those preparations increased the likelihood that Trumps speech would spark lawlessness, though Trump may argue that the insurrection had independent momentum.

Legal observers debate whether courts should look to the average listener or to specific listeners, like the self-selected group that attended Trumps rally, to determine the likelihood that the crowd will take action. But Trumps words amount to incitement under either standard. Lets start with the subjective. We know how a significant portion of those at Trumps rally understood his language, not only from their actions but from their subsequent words. For example, after she was arrested, Jenna Ryan, who flew from Texas to Washington for the Jan. 6 events, justified her conduct by saying: I was following my president. I thought I was following what we were called to do.

The widespread impression that Trumps speech incited the ensuing riot appears to satisfy an objective standard as well. Many who watched Trumps speech from afar feared it would trigger violence, though we lacked the imagination to envision the horror that followed. An audience did not have to be specially primed to hear Trumps speech as a call to action and as permission to, in the words of one reporter, take more extreme measures.

Trumps defenders point to a single sentence of his speech to counter the incitement charge. A master at crafting deniability, Trump put on the record: I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard (emphasis added). He then pivoted to his pervasive imagery of warfare: Our country has been under siege for a long time.

This same maneuver had enabled Trump to escape liability in a civil suit brought by peaceful protesters who had been roughed up at one of his campaign rallies in 2016. Trump convinced an appellate court that his single admonition, Dont hurt em, insulated his five exhortations to get em out of here from any plausible reading as advocating violence.

But if a single sentence in an inflammatory speech could inoculate incitement from liability, every sentient speaker would add the requisite phrase while inciting to their hearts content. Here, the extent of inflammatory rhetoric compared with a passing nod at peaceful behavior indicates Trumps language was directed to incite and was likely to incite. Still, that will be question for senators or jurors to decide.

In the end, the intricacies of incitement doctrine in criminal law may not matter in the Senate. Different rules apply.

Senate rules are conspicuously silent regarding the standard of proof in impeachment trials. When Chief Justice John Roberts presided over Trumps first impeachment trial, he submitted the case to the senators for a vote without specifying any standard, or indeed giving any guidance at all.

Absent guidance, a senator might justifiably conclude a preponderance of the evidence established that Trump incited insurrection, while in criminal proceedings the prosecution would have to show that it had proved each part of the Brandenburg test beyond a reasonable doubt. A conviction in the Senate would not broaden the constitutional definition of incitement. Under the criminal standard, Trumps implicit direction to the crowd on Jan. 6 might fall short of the stringent Brandenburg requirement that the speech be directed to producing imminent lawless action.

That distinction alone could lead to a conviction in the Senate, followed by a decision not to pursue charges or an acquittal in federal court. Neither of those outcomes should be seen as undermining the legitimacy of a Senate conviction.

In a moment of crisis, it may prove tempting to disregard the fundamental premise that free speech is essential to democratic self-governance. The First Amendment recognizes that speakers hope their words will lead to action and not prove impotentbut it never protects violence. Brandenburg allows dissidents of every stripe to organize, motivate, and act. It must continue to protect movements from Black Lives Matter and environmental causes to the Proud Boys, until they cross the line from zealous advocacy to unprotected incitement.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

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What the First Amendment Really Says About Whether Trump Incited the Capitol Riot - Slate