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First Amendment Says Manga Used As Cause For Digital Device Searches – Crunchyroll News

This weekend, comic creators and fans gathered in Seattle for the 15th Emerald City Comic Con (or ECCC). The notable event on the comic calendar featured a talk by Charles Brownstein, executive director of the Comic Book Legal Defense Fund, an American non-profil that aims to protect the First Amendment rights of comics creators, publishers, and retailers covering legal expenses. Along with addressing concerns about banning books in libraries, he raised a remarkable problem for manga.

According to comic/geek media site Bleeding Cool,Brownsteinmentioned that the CBLDF is currently working on a message to the US congress in regards to people having to give up their passwords on electronics devices such as phones and laptops for searchs.

The site reports

He gave an example that if you had manga on your laptop, the Feds use manga as a code word for porn, giving them the right to search your laptop. Brownstein mentioned this was becoming unconstitutional for traveling Americans, and that they are constantly fighting against that.

Noteworthy in CBLDF's history with manga, in 2012 the organization was at New York Comic Con toraise funds andawareness of a casein whichan American citizen faced criminal charges in Canada for manga brought into the country on his laptop. For those who could not make it to this important talk,full audio andlengthy articleCBLDF's Defending Manga panel was posted online.

As his laptop booted, a custom official noticed a manga/anime drawing of a provocatively posed girl appeared on the screen. The agents saw my wallpaper and their eyes lit up when they saw an art book page, of a girl in summer. Ryan was quick to add, She wasnt nude or anything.

Still, the agent said, in a serious tone, You should really not bring this stuff into this country.

Ryan nodded, still unconcerned. Two hours later, I was put into detention. The customs officials kept asking Ryan about the images on his computer. The customs agents really had no idea what they were looking at or what to do.

Of particular concern was an image entitled The 48 Positions: Moe Style. The image was a parody image of The 48 Sumo Positions, done as The 48 Sex Positions. The Moe style of animation features a style of cute characters and was brought to prominence in series like Sailor Moon. The image Ryan had featured tiny super-deformed images of characters doing the act these images did not even have genitalia. Brownstein interjected that Its clear to us what this was. But, the inspectors believed the characters to be four-year-olds. Still, he stressed that this was not a photograph with real people in it, No children were hurt in the creation of this drawing.

The aims of the CBLDF are described:

CBLDF provides legal and educational resources to protect the freedom to read comics. The organization is a partner in Banned Books Week, the Kids Right to Read Project, Free Comic Book Day, and other national institutions that support intellectual freedom and literacy. CBLDFs work extends from courtrooms to classrooms to conventions, and CBLDF defends the freedom to read by providing letters of support in book challenges, challenging unconstitutional legislation, and delivering lectures and programs about current and historical censorship to audiences all over the world.

via Bleeding Cool

------ Scott Green is editor and reporter for anime and manga at geek entertainment siteAin't It Cool News. Follow him on Twitter at@aicnanime.

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First Amendment Says Manga Used As Cause For Digital Device Searches - Crunchyroll News

U-B upholding the First Amendment | Letters To Editor | union … – Walla Walla Union-Bulletin

There is the smell of freshly brewing coffee in the air. The sun is just starting to come up. It is Sunday morning! Thump! Yes, Yes!

That is the sound I was waiting to hear! The Union-Bulletin newspaper being delivered to my front door.

Coffee cup in hand I go retrieve the paper from my front porch. I flip through the sections to my favorite part of the paper, the Perspective section.

First I read the editorial, then I look at the political cartoons, followed by Our Readers Opinions and individual columnists. During the reading and digesting of the material I go from agreeing to disagreeing, happy to sad, to disbelief and mad.

In my Sunday morning pursuit of knowledge I have sharpened my skills as a citizen of our wonderful country.

I would like to praise the Union-Bulletin for upholding the United States Constitutions First Amendment! You folks in the press are the light that burns away the darkness so the truth is illuminated by your piercing rays!

Please keep asking the tough questions and follow them up! Just a note to say I appreciate you and our country needs you now more than ever!

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U-B upholding the First Amendment | Letters To Editor | union ... - Walla Walla Union-Bulletin

Constant attacks on press chip away at 1st Amendment | Letters to … – The Intelligencer

The First Amendment to the U.S. Constitution prohibits the making of any law respecting an establishment of religion, and ensures that there is no prohibition on the free exercise of religion, no abridging the freedom of speech, no infringing on the freedom of the press, no interfering with the right to peaceably assemble, and no prohibition against the petitioning for a governmental redress of grievances.

I am becoming more and more alarmed at the present administrations attack on our sacred First Amendment rights. I preface this letter with this amendment because I feel few Americans know or even care about the words contained within it.

During the most recent presidential campaign, and most glaringly in the first month of this administration, a constant demonizing of the press and the inference that the press cannot be trusted are becoming more unnerving every day. Recently, White House press secretary Sean Spicer spun his press conference restriction of not inviting four high-profile news outlets, stating that the room was "just too small." President Trump revealed in a tweet not one hour later that the press restriction was due to Trumps personal belief that these outlets reports fake news or are failing.

Clearly, Trump is seeking to control the press corps, limiting it to those he believes will write the news he wants written. No other president in modern history has attempted to squash the press like this.

Republican Sen. John McCain said in a recent interview with Chuck Todd of Meet the Press, "I hate the press. I hate you especially. But the fact is we need you. We need a free press. We must have it. It's vital." The Arizona senator, who was just re-elected to another six-year term, added that in order to preserve democracy, a free and many times adversarial press is essential. Thats how dictators get started, he continued. They get started by suppressing a free press; in other words, a consolidation of power. When you look at history, the first thing that dictators do is shut down the press.

This constant attack on the press is the first step at the chipping away of our First Amendment and our democracy. We live in a 24/7 social media culture. It is our responsibility to weigh carefully what is said and videotaped and then held up against the untruths that seem to follow. We cannot become indifferent or complacent when a threat such as this occurs.

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Constant attacks on press chip away at 1st Amendment | Letters to ... - The Intelligencer

Williams: Defense of First Amendment Act is discriminatory – East Bay Times

The Constitution prohibits Congress from establishing a religion. It is also forbidden to enact laws that would impede the free exercise of ones faith tradition. As with most things in the nations guiding decree, the simplicity of the words can belie the complexity of the meaning, especially when citizens periodically ask: What does that mean?

How far should religious freedom go? Can it be allowed to encroach into the murky waters ofdiscrimination, racism, sexism, homophobia, Islamophobia or any other form of intolerance?

What about claims of conscience? Should a religiously affiliated institution be mandated to provide coverage for contraception in their health insurance plans if it violates their conscience?

Here I would be inclined to side with the religious liberty argument, assuming the institution is indeed religiously affiliated. But just saying one is religiously affiliated does not suffice.

Acme House of Doughnuts is not a religiously affiliated institution because its proprietor, Wile E. Coyote, self-identifies as Christian. Such institutions are not the equivalent of, say, Catholic Charities.

It has been reported that President Donald Trump is considering an executive order to bar the federal government from punishing people or institutions that support marriage exclusively as the union of one man and one woman.

On the surface, it appears the presidents actions would potentially place the First Amendments religious freedom clause in tension with the 14thAmendments equal protection clause a constitutional conundrum. Sen. Mike Lee, R-Utah, has similar legislation in Congress called the First Amendment Defense Act.

Regardless of how ones feels about Lees bill, its hard not to love the name. Who would be against protecting the First Amendment? But that is not what the legislation, or the presidents executive order, would accomplish. It would instead extend powers to the First Amendment at the expense of the 14thAmendment.

From Sept. 17, 1787, when the Constitution was created, to August 1920, when the 19thAmendment guaranteeing women the right to vote was ratified, the ethos of America stood in tension with itself.

A nation conceived on the propositions of liberty and equality for all in theory had truncated that definition to white male landowners in practice. It used the initial draft of the Constitution to legitimize the institution of slavery and deprived the franchise to vote for roughly half the population.

The First Amendment Defense Act, along with the presidents executive order, seeks to resurrect dark chapters from the nations past.

When has it worked out for America when it passed legislation based on othering a group of people? When has the freedom of some been dependent on the subjugation of others?

Since constitutionally protected same-gender marriage hurts no one, the only way to make a plausible argument for the First Amendment Defense Act is to transform the victimizer into the victim.

The freedom of religion within the confines of ones chosen community does not grant immunity when one engages in the public square. Freedom to worship does not mean that my constitutional rights are violated if Im not allowed to exercise those beliefs wherever I go, especially if those doctrines infringe on the liberty of others.

That seems to be the nebulous line that should never be crossed. The First Amendment protects believers and nonbelievers alike. It acts as a safeguard so that no group possesses supremacy. Once the line of supremacy has been crossed so that one group enjoys additional space, the premise of the Constitution has been violated.

The tragic irony is that the misuse of the freedom of religion clause, in this case, is used to justify discrimination. On this basis alone, it is a profoundly un-American exercise.

But those in support of the First Amendment Defense Act have most likely placed more emphasis on individualistic biblical interpretation than constitutional understanding, which renders them unable or unwilling to see the humanity of those who are the objects of discrimination.

This so-called religious freedom is nothing more than an escape hatch to circumvent the Constitution, to act unencumbered on ones opposition to same-gender marriage.

This First Amendment Defense Act is not designed to address religious freedom but to justify the prejudices of Wile E. Coyote. It would allow him to mask his bigotry under the thin veneer of religious freedom with the assistance of the Congress and the president.

Byron Williams is a contributing columnist. Contact him at 510-208-6417 or byron@byronspeaks.com.

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Williams: Defense of First Amendment Act is discriminatory - East Bay Times

Letter: Trump throws the First Amendment out the window – Salt Lake Tribune

The Trump administration basically decided to throw the First Amendment out the window.

The recent banning of CNN and The New York Times screams of an attempt to stifle the free press, step one to creating a dictatorship and destroying the nation we hold dear to our hearts.

I love The Tribune. I would hate to see it go by the wayside in favor of bias-controlled news or no news at all.

We cannot as a nation founded on the principles as stated in the Constitution allow this to happen.

Kevin M. Sillito

Salt Lake City

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Letter: Trump throws the First Amendment out the window - Salt Lake Tribune

Letter to the editor: 1st Amendment applies to govt – The Bakersfield Californian

I know the paper supplies the headline, but the headline of a Feb. 16 letter, First Amendment only applies to Americans, seems to be an adequate re-statement of the letters point. That point is wrong.

The First Amendment doesnt give anyone rights except as the result of the fact that it forbids the U.S. government from doing certain things; specifically, it provides in part that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof Congress cant make such law whether it affects Americans or anyone else. It is a limitation on what we want our government to be able to do.

The Constitution was written at a time when European events had demonstrated clearly that getting governments involved in religion had horrible consequences the Thirty Years War, the Inquisition, the English Civil War, etc. Our Forefathers believed in freedom of conscience, freedom of thought, and freedom of speech from government interference. So do I.

Of course the U.S. Constitution cant guarantee the right of a person in another country to believe as he or she chooses, but neither can our government establish one religion or another as the basis for granting or denying immigration or visits. We told it "No!" in the First Amendment.

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Letter to the editor: 1st Amendment applies to govt - The Bakersfield Californian

In appeal, Lamar calls banner First Amendment right; Pittsburgh … – Tribune-Review

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In appeal, Lamar calls banner First Amendment right; Pittsburgh ... - Tribune-Review

Rally Round The First Amendment – TV News Check

Speaking at the NAB's State Leadership Conference Tuesday, Senate Minority Whip Dick Durbin (Ill.) went after President Trump and his administration for their "unprecedented series" of attacks on the news media attacks thatculminated Feb. 17 with a tweetfrom the commander in chief calling "FAKE NEWS media" namely theNew York Times, NBC, CBS, ABC and CNN the "enemy of the American people."

"Turning reporters into enemies not just adversaries, but enemies is a strategy that strongmen use to silence critics and maintain power," Durbin said after cataloging the Trump assaults. "Their goal is to discredit the messenger. That way, when there is bad news, or news that contradicts the official line, people wont believe it.

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"Soon enough, people start to lose faith ... not just in the media, but in all of the institutions that hold a society together. They lose faith in the power of debate and elections to change anything. They become cynical and apathetic."

Well said.

The attacks have provoked a predictable public response from the targeted news media. Bring it on, they say. We are simply going to continue to do what we have always done, provide a check on the government by throwing as much light on its doings as we possibly can.

Rather than intimidate the media, the attacks have energized them and engendered waves of public support that can be clearly measured in "Trump bumps"to Nielsen ratings and paid subscriptions.

At the same time, the Trump thumps have provided an impetus for the news media to rally and redouble their collective efforts to preserve and perhaps expand their First Amendment rights. There is nothing like a hostile outside force in forging solidarity among the beleaguered.

On Jan. 17, representatives of more than 50 news organizations met at the Newseum in Washington to plota common strategy for strengthening news media. It was organized by the Reporters Committee for the Freedom of the Press and the American Society of News Editors and hosted by the Democracy Fund.

The journalists, lawyers and other media advocates discussed legal and legislative ways to insure access to government offices and information, protect whistle blowers from government retribution, protect themselves from frivolous libel suits and protect reporters from government harassment.

They also talked about the need to restore trust in the news media and floated ideas about how to do it.

I am happy to report that broadcasters were well represented at the "summit" by the Radio Television Digital News Association in the persons of Executive Director Mike Cavender and General Counsel Kathleen Kirby of the Wiley Rein law firm.

Cavender tells me to expect a full report from the organizers in the next week or two.

Whatever strategy emerges from the summit is just so much talk unless it wins the financial backing of newspapers, the national news networks and, yes, TV station groups. Legal defense funds, legislative initiatives and appeals to the public cost money.

It should go without saying that broadcasters need to support fully the RTDNA. In addition andCavender may hate me for saying this but broadcasters should also consider supporting other worthy organizations like Investigative Reporters and Editors.

I've been arguing that stations should eschew on-air commentary, especially on hot partisan issues, figuring that there is enough opinion out there and that it will only serve to undermine trust in stations' reporting. If a station's commentary is perceived as consistently liberal or conservative, its reporting may be dismissed as such.

However, I'm making an exception to that rule: the First Amendment. Stations should take to the air to defend freedom of speech and the press and argue for expansion of its rights and protections be that access to the dashcam video at the local police station or a federal shield law for whistle blowers.

A CBS affiliate should not allow the president to get away with saying that CBS News is "an enemy of the people." Ditto for NBC and ABC affiliates.

Stations must be careful not to preach or talk down to their viewers. That's how the national media alienated Trump voters. Stations need to listen to their viewers and win them over by convincing them that their interests are aligned, that press freedoms are ultimately their freedoms.

And it would be good to hear from the heads of the station groups, the ones who are always saying what swell jobs they do producing news and serving the public interest.

They can speak out in op-eds and in speeches before civic groups and at universities. They can direct the executives of the NAB and state broadcast associations to do the same.

I fully understand that the No. 1 job and responsibility of the station group executives is to make money, and so they have to be mindful of what they say. They have big issues pending before Congress and the FCC, notably ownership deregulation, the repack and ATSC 3.0. Criticizing the administration is not the way to get your way in Washington.

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Rally Round The First Amendment - TV News Check

First Amendment to the United States Constitution

Clauses of the First Amendment

The Establishment Clause

Americas early settlers came from a variety of religious backgrounds: Puritans predominated in New England; Anglicans predominated in the South; Quakers and Lutherans flocked especially to Pennsylvania; Roman Catholics settled mostly in Maryland; Presbyterians were most numerous in the middle colonies; and there were Jewish congregations in five cities.

During colonial times, the Church of England was established by law in all of the southern colonies, while localized Puritan (or Congregationalist) establishments held sway in most New England states. In those colonies, clergy were appointed and disciplined by colonial authorities and colonists were required to pay religious taxes and (often) to attend church services. Dissenters were often punished for preaching without a license or refusing to pay taxes to a church they disagreed with. Delaware, New Jersey, Pennsylvania, Rhode Island, and much of New York had no established church.

After Independence, there was widespread agreement that there should be no nationally established church. The Establishment Clause of the First Amendment, principally authored by James Madison, reflects this consensus. The language of the Establishment Clause itself applies only to the federal government (Congress shall pass no law respecting an establishment of religion). All states disestablished religion by 1833, and in the 1940s the Supreme Court held that disestablishment applies to state governments through the Fourteenth Amendment.

Virtually all jurists agree that it would violate the Establishment Clause for the government to compel attendance or financial support of a religious institution as such, for the government to interfere with a religious organizations selection of clergy or religious doctrine; for religious organizations or figures acting in a religious capacity to exercise governmental power; or for the government to extend benefits to some religious entities and not others without adequate secular justification. Beyond that, the meaning of the Amendment is often hotly contested, and Establishment cases in the Supreme Court often lead to 5-4 splits.

The Lemon Test

In 1971, the Supreme Court surveyed its previous Establishment Clause cases and identified three factors that identify whether or not a government practice violates the Establishment Clause: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive entanglement with religion. Lemon v. Kurtzman (1971). In the years since Lemon, the test has been much criticized and the Court often decides Establishment Clause cases without reference to it. Yet the Justices have not overruled the Lemon test, meaning the lower courts remain obliged to use it. In some specific areas of controversy, however, the Court has adopted specific, more targeted tests to replace Lemon.

The vast majority of Establishment Clause cases have fallen in four areas: monetary aid to religious education or other social welfare activities conducted by religious institutions; government-sponsored prayer; accommodation of religious dissenters from generally-applicable laws; and government owned or sponsored religious symbols.

Aid to religious institutions

Scholars have long debated between two opposing interpretations of the Establishment Clause as it applies to government funding: (1) that the government must be neutral between religious and non-religious institutions that provide education or other social services; or (2) that no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine. Initially, the Court tended toward the first interpretation, in the 1970s and 1980s the Court shifted to the second interpretation, and more recently the Court has decisively moved back to the first idea.

After two early decisions upholding state statutes allowing students who attend private religious schools to receive transportation, Everson v. Board of Education (1947), and textbook subsidies available to all elementary and secondary students, Board of Education v. Allen (1968), the Court attempted for about fifteen years to draw increasingly sharp lines against the use of tax-funded assistance for the religious aspects of education. At one point the Court even forbade public school teaching specialists from going on the premises of religious schools to provide remedial assistance. Aguilar v. Felton (1985). More recently, the Court has upheld programs that provide aid to educational or social programs on a neutral basis only as a result of the genuine and independent choices of private individuals. Zelman v. Simmons-Harris (2002). Indeed, the Court has held that it is unconstitutional under free speech or free exercise principles to exclude otherwise eligible recipients from government assistance solely because their activity is religious in nature. Rosenberger v. University of Virginia (1995).

Government-sponsored prayer

The Courts best-known Establishment Clause decisions held it unconstitutional for public schools to lead schoolchildren in prayer or Bible reading, even on an ostensibly voluntary basis. Engel v. Vitale (1962); Abington School District v. Schempp (1963). Although these decisions were highly controversial among the public (less so among scholars), the Court has not backed down. Instead it has extended the prohibition to prayers at graduation ceremonies, Lee v. Weisman (1992), and football games, Santa Fe Independent School District v. Doe (2000).

In less coercive settings involving adults, the Court has generally allowed government-sponsored prayer. In Marsh v. Chambers (1983), the Court upheld legislative prayer, specifically because it was steeped in history. More recently, the Court approved an opening prayer or statement at town council meetings, where the Town represented that it would accept any prayers of any faith. Town of Greece v. Galloway (2014).

Accommodation of religion

Hundreds of federal, state, and local laws exempt or accommodate religious believers or institutions from otherwise neutral, generally-applicable laws for whom compliance would conflict with religiously motivated conduct. Examples include military draft exemptions, kosher or halal meals for prisoners, medical neglect exemptions for parents who do not believe in medical treatment for their ill children, exemptions from some anti-discrimination laws for religious entities, military headgear requirements, and exemptions for the sacramental use of certain drugs. The Supreme Court has addressed very few of these exemptions. While the Court held that a state sales tax exemption limited to religious publications was unconstitutional in Texas Monthly, Inc. v. Bullock (1989), it unanimously upheld the exemption of religious organizations from prohibitions on employment discrimination for ministers. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012).

Two federal laws, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), provide broad-based statutory accommodations for religious practice when it conflicts with federal and certain state and local laws. A unanimous Court upheld this approach for prisoners against a claim that granting religious accommodations violates the Establishment Clause, reasoning that RLUIPA alleviates exceptional government-created burdens on private religious exercise in prisons. Cutter v. Wilkinson (2005).

The Court in Cutter left open the question whether such a regime applied to land use is constitutional and it also left open the possibility that even some applications in prisons may be unconstitutional if they are not even-handed among religions or impose too extreme a burden on non-believers. The Courts recent 5-4 decision in Burwell v. Hobby Lobby Stores, Inc. (2014), holding that RFRA exempts for-profit employers from paying for insurance coverage of contraceptive drugs that they believe are abortion-inducing, has reinvigorated the debate over such laws.

Government-sponsored religious symbols

The cases involving governmental displays of religious symbolssuch as Ten Commandment displays in public school classrooms, courthouses, or public parks; nativity scenes in courthouses and shopping districts; or crosses on public landhave generated much debate. The most prominent approach in more recent cases is called the endorsement test; it asks whether a reasonable observer acquainted with the full context would regard the display as the government endorsing religion and, therefore, sending a message of disenfranchisement to other believers and non-believers.

The Courts decisions in this arena are often closely divided. They also illustrate that the Court has declined to take a rigid, absolutist view of the separation of church and state. In Lynch v. Donnelly (1984), the Court allowed display of a nativity scene surrounded by other holiday decorations in the heart of a shopping district, stating that it engenders a friendly community spirit of good will in keeping with the season. But in County of Allegheny v. American Civil Liberties Union (1989), a different majority of Justices held that the display of a nativity scene by itself at the top of the grand stairway in a courthouse violated the Establishment Clause because it was indisputably religiousindeed sectarian. In McCreary County v. American Civil Liberties Union (2005), the Court held that a prominent display of the Ten Commandments at the county courthouse, which was preceded by an officials description of the Ten Commandments as the embodiment of ethics in Christ, was a religious display that was unconstitutional. The same day, it upheld a Ten Commandments monument, which was donated by a secular organization dedicated to reducing juvenile delinquency and surrounded by other monuments on the spacious statehouse grounds. Van Orden v. Perry (2005). Only one Justice was in the majority in both cases.

More broadly, the Establishment Clause provides a legal framework for resolving disagreements about the public role of religion in our increasingly pluralistic republic.

An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state.

The Establishment Clause of the First Amendment Congress shall pass no law respecting an establishment of religion is one of the most misunderstood in the Constitution.

The Establishment Clause: A Check on Religious Tyranny by Marci A. Hamilton

An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state. The religiosity of the generation that framed the Constitution and the Bill of Rights (of which the First Amendment is the first as a result of historical accident, not the preference for religious liberty over any other right) has been overstated. In reality, many of the Framers and the most influential men of that generation rarely attended church, were often Deist rather than Christian, and had a healthy understanding of the potential for religious tyranny. This latter concern is to be expected as European history was awash with executions of religious heretics: Protestant, Catholic, Jewish, and Muslim. Three of the most influential men in the Framing era provide valuable insights into the mindset at the time: Benjamin Franklin, James Madison, and John Adams. Franklin saw a pattern:

If we look back into history for the character of the present sects in Christianity, we shall find few that have not in their turns been persecutors, and complainers of persecution. The primitive Christians thought persecution extremely wrong in the Pagans, but practiced it on one another. The first Protestants of the Church of England blamed persecution in the Romish Church, but practiced it upon the Puritans. These found it wrong in the Bishops, but fell into the same practice themselves both here [England] and in New England.

Benjamin Franklin, Letter to the London Packet (June 3, 1772).

The father of the Constitution and primary drafter of the First Amendment, James Madison, in his most important document on the topic, Memorial and Remonstrance against Religious Assessments (1785), stated:

During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. . . . What influence, in fact, have ecclesiastical establishments had on society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been the guardians of the liberties of the people.

Two years later, John Adams described the states as having been derived from reason, not religious belief:

It will never be pretended that any persons employed in that service had any interviews with the gods, or were in any degree under the influence of Heaven, any more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses. . . .Thirteen governments [of the original states] thus founded on the natural authority of the people alone, without a pretence of miracle or mystery, which are destined to spread over the northern part of that whole quarter of the globe, are a great point gained in favor of the rights of mankind.

The Works of John Adams, Second President of the United States, Vol. 4, 292-93 (Charles C. Little & James Brown, eds., 1851).

Massachusetts and Pennsylvania are examples of early discord. In Massachusetts, the Congregationalist establishment enforced taxation on all believers and expelled or even put to death dissenters. Baptist clergy became the first in the United States to advocate for a separation of church and state and an absolute right to believe what one chooses. Baptist pastor John Leland was an eloquent and forceful proponent of the freedom of conscience and the separation of church and state. For him, America was not a Christian nation, but rather should recognize the equality of all believers, whether Jews, Turks, Pagans [or] Christians. Government should protect every man in thinking and speaking freely, and see that one does not abuse another. He proposed an amendment to the Massachusetts Constitution in 1794 because of the evils . . . occasioned in the world by religious establishments, and to keep up the proper distinction between religion and politics."

Pennsylvania, dubbed the Holy Experiment by founder William Penn, was politically controlled by Quakers, who advocated tolerance of all believers and the mutual co-existence of differing faiths, but who made their Christianity a prerequisite for public office, only permitted Christians to vote, and forbade work on the Sabbath. Even so, the Quakers set in motion a principle that became a mainstay in religious liberty jurisprudence: the government may not coerce citizens to believe what they are unwilling to believe. If one looks carefully into the history of the United States religious experiment, one also uncovers a widely-shared view that too much liberty, or licentiousness, is as bad as no liberty. According to historian John Philip Reid, those in the eighteenth century had as great a duty to oppose licentiousness as to defend liberty.

Establishment Clause Doctrine

The Establishment Clause has yielded a wide array of doctrines (legal theories articulated by courts), each of which is largely distinct from the others, some of which are described in Professor McConnells and my joint contribution on the Establishment Clause. The reason for this proliferation of distinct doctrines is that the Establishment Clause is rooted in a concept of separating the power of church and state. These are the two most authoritative forces of human existence, and drawing a boundary line between them is not easy. The further complication is that the exercise of power is fluid, which leads both state and church to alter their positions to gain power either one over the other or as a union in opposition to the general public or particular minorities.

The separation of church and state does not mean that there is an impermeable wall between the two, but rather that the Framers fundamentally understood that the union of power between church and state would lead inevitably to tyranny. The established churches of Europe were well-known to the Founding era and the Framers and undoubtedly contributed to James Madisons inclusion of the Establishment Clause in the First Amendment, and its ratification. The following are some of the most important principles.

The Government May Not Delegate Governing Authority to Religious Entities

The Court has been sensitive to incipient establishments of religion. A Massachusetts law delegated authority to churches and schools to determine who could receive a liquor license within 500 feet of their buildings. The Supreme Court struck down the law, because it delegated to churches zoning power, which belongs to state and local government, not private entities. Larkin v. Grendels Den, Inc. (1982). According to the Court: The law substitutes the unilateral and absolute power of a church for the reasoned decision making of a public legislative body . . . on issues with significant economic and political implications. The challenged statute thus enmeshes churches in the processes of government and creates the danger of [p]olitical fragmentation and divisiveness along religious lines.

In another scenario, the Supreme Court rejected an attempt to define political boundaries solely according to religion. In Board of Education of Kiryas Joel Village School District v. Grumet (1994), the state of New York designated the neighborhood boundaries of Satmar Hasidim Orthodox Jews in Kiryas Joel Village as a public school district to itself. Thus, the boundary was determined solely by religious identity, in part because the community did not want their children to be exposed to children outside the faith. The Court invalidated the school district because political boundaries identified solely by reference to religion violate the Establishment Clause.

There Is No Such Thing as Church Autonomy Although There Is a Doctrine that Forbids the Courts from Determining What Religious Organizations Believe

In recent years, religious litigants have asserted a right to church autonomythat churches should not be subject to governmental regulationin a wide variety of cases, and in particular in cases involving the sexual abuse of children by clergy. The phrase, however, is misleading. The Supreme Court has never interpreted the First Amendment to confer on religious organizations a right to autonomy from the law. In fact, in the case in which they have most recently demanded such a right, arguing religious ministers should be exempt from laws prohibiting employment discrimination, the Court majority did not embrace the theory, not even using the term once. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012).

The courts are forbidden, however, from getting involved in determining what a religious organization believes, how it organizes itself internally, or who it chooses to be ministers of the faith. Therefore, if the dispute brought to a court can only be resolved by a judge or jury settling an intra-church, ecclesiastical dispute, the dispute is beyond judicial consideration. This is a corollary to the absolute right to believe what one chooses; it is not a right to be above the laws that apply to everyone else. There is extraordinary slippage in legal briefs in numerous cases where the entity is arguing for autonomy, but what they really mean is freedom from the law, per se. For the Court and basic common sense, these are arguments for placing religion above the law, and in violation of the Establishment Clause. They are also fundamentally at odds with the common sense of the Framing generation that understood so well the evils of religious tyranny.

The Establishment Clause: Co-Guarantor of Religious Freedom by Michael McConnell

The Establishment Clause of the First Amendment Congress shall pass no law respecting an establishment of religion is one of the most misunderstood in the Constitution. Unlike most of the Constitution, it refers to a legal arrangement, the establishment of religion, which has not existed in the United States in almost two centuries. We understand what freedom of speech is, we know what private property" is, and we know what searches and seizures are, but most of us have no familiarity with what an establishment of religion would be.

The Church by Law Established in Britain was a church under control of the government. The monarch was (and is) the supreme head of the established church and chooses its leadership; Parliament enacted its Articles of Faith; the state composed or directed the content of its prayers and liturgy; clergy had to take an oath of allegiance to the king or queen; and not surprisingly, the established church was used to inculcate the idea that British subjects had a religious as well as a civic obligation to obey royal authority. The established church was a bit like a government-controlled press: it was a means by which the government could mold public opinion.

British subjects (including Americans in eight of the colonies) were legally required to attend and financially support the established church, ministers were licensed or selected by the government, and the content of church services was partially dictated by the state.

The establishment of religion was bad for liberty and it was bad for religion, too. It was opposed by a coalition of the most fervently evangelical religious sects in America (especially the Baptists), who thought the hand of government was poisonous to genuine religion, joined by the enlightenment and often deist elite (like Thomas Jefferson and Benjamin Franklin), who thought church and state should be separate, and by the leadership of minority religions, who worried that government involvement would disadvantage them. Accordingly, there was virtually no opposition to abolishing establishment of religion at the national level. Establishments survived for a while in a few states, but the last state (Massachusetts) ended its establishment in 1833.

The abolition of establishment of religion entails a number of obvious and uncontroversial elements. Individuals may not be required to contribute to, attend, or participate in religious activities. These must be voluntary. The government may not control the doctrine, liturgy, or personnel of religious organizations. These must be free of state control. Other issues are harder.

For a few decades between the late 1960s and the early 1990s, the Supreme Court attempted to forbid states to provide tax subsidies to schools that teach religious doctrine along with ordinary secular subjects. Most of these schools were Roman Catholic. This effort was largely based on a misinterpretation of history, egged on by residual anti-Catholicism. The Justices said that neutral aid to schools is just like a 1785 effort to force Virginians to contribute to the church of their choice. The analogy, however, made little sense: there is all the difference in the world between funding churches because they inculcate religion and funding schools because they provide education. In fact, the history of the early republic shows that states (and later the federal government, during Reconstruction) funded education by subsidizing all schools on a nondiscriminatory basis, and no one ever suggested this violated the non-establishment principle. By 2002, in Zelman v. Simmons-Harris, the Supreme Court returned to this original idea, allowing the government to fund schools on a neutral basis so long as the choice of religious schools was left to voluntary choice. Not only was ruling this true to history, it also best serves the ideal of religious freedom, making it possible for families to choose the type of education they want for their children.

It is sometimes suggested that laws making special accommodations for people whose religious beliefs are at odds with government policy violate the Establishment Clause, on the theory that these accommodations privilege or advance religion. This is a recently-minted idea, and not a sensible one. In all cases of accommodation, the religion involved is dissenting from prevailing policy, which means, by definition, that the religion is not dominating society. The idea that making exceptions for the benefit of people whose beliefs conflict with the majority somehow establishes religion is a plain distortion of the words. And the Supreme Court has unanimously held that religious accommodations are permissible so long as they lift a governmental obstacle to the exercise of religion, take account of costs to others, and do not favor one faith over another. Nonetheless, when religions take unpopular stances on hot-button issues (for example, regarding abortion-inducing contraceptives or same-sex marriage), critics are quick to assert that it violates the Constitution to accommodate their differences, no matter how little support that position has in history or Supreme Court precedent.

The fundamental error is to think that the Establishment Clause is designed to reduce the role of religion in American life. A better understanding is captured in this statement by Justice William O. Douglas of the Supreme Court: this country sponsor[s] an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. Zorach v. Clauson (1952).

The Free Exercise Clause

Many settlers from Europe braved the hardships of immigration to the American colonies to escape religious persecution in their home countries and to secure the freedom to worship according to their own conscience and conviction. Although the colonists often understood freedom of religion more narrowly than we do today, support for protection of some conception of religious freedom was broad and deep. By the time of Independence and the construction of a new Constitution, freedom of religion was among the most widely recognized inalienable rights, protected in some fashion by state bills of rights and judicial decisions. James Madison, for example, the principal author of the First Amendment, eloquently expressed his support for such a provision in Virginia: It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society.

Although the original Constitution contained only a prohibition of religious tests for federal office (Article VI, Clause 3), the Free Exercise Clause was added as part of the First Amendment in 1791. In drafting the Clause, Congress considered several formulations, but ultimately settled on protecting the free exercise of religion. This phrase makes plain the protection of actions as well as beliefs, but only those in some way connected to religion.

From the beginning, courts in the United States have struggled to find a balance between the religious liberty of believers, who often claim the right to be excused or exempted from laws that interfere with their religious practices, and the interests of society reflected in those very laws. Early state court decisions went both ways on this central question.

The Supreme Court first addressed the question in a series of cases involving nineteenth-century laws aimed at suppressing the practice of polygamy by members of the Church of Jesus Christ of Latter-day Saints (LDS), also known as Mormons. The Court unanimously rejected free exercise challenges to these laws, holding that the Free Exercise Clause protects beliefs but not conduct. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Reynolds v. United States (1878). What followed was perhaps the most extreme government assault on religious freedom in American history. Hundreds of church leaders were jailed, rank-and-file Mormons were deprived of their right to vote, and Congress dissolved the LDS Church and expropriated most of its property, until the church finally agreed to abandon polygamy.

The belief-action distinction ignored the Free Exercise Clauses obvious protection of religious practice, but spoke to the concern that allowing believers to disobey laws that bind everyone else would undermine the value of a government of laws applied to all. Doing so, Reynolds warned, would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Reynolds influenced the meaning of the Free Exercise Clause well into the twentieth century. In 1940, for example, the Court extended the Clausewhich by its terms constrains only the federal governmentto limit state laws and other state actions that burden religious exercise. Cantwell v. Connecticut (1940). Though it recognized that governments may not unduly infringe religious exercise, the Court reiterated that [c]onduct remains subject to regulation for the protection of society, citing Reynolds as authority. Similarly, the Court held in 1961 that the Free Exercise Clause did not exempt an orthodox Jewish merchant from Sunday closing laws, again citing Reynolds.

In the 1960s and early 1970s, the Court shifted, strengthening protection for religious conduct by construing the Free Exercise Clause to protect a right of religious believers to exemption from generally applicable laws which burden religious exercise. The Court held that the government may not enforce even a religiously-neutral law that applies generally to all or most of society unless the public interest in enforcement is compelling. Wisconsin v. Yoder (1972). Yoder thus held that Amish families could not be punished for refusing to send their children to school beyond the age of 14.

Although the language of this compelling-interest test suggested powerful protections for religion, these were never fully realized. The cases in which the Supreme Court denied exemptions outnumbered those in which it granted them. Aside from Yoder, the Court exempted believers from availability for work requirements, which denied unemployment benefits to workers terminated for prioritizing religious practices over job requirements. But it denied exemptions to believers and religious organizations which found their religious practices burdened by conditions for federal tax exemption, military uniform regulations, federal minimum wage laws, state prison regulations, state sales taxes, federal administration of public lands, and mandatory taxation and other requirements of the Social Security system. In all of these cases the Court found, often controversially, either that the governments interest in enforcement was compelling, or that the law in question did not constitute a legally-recognizable burden on religious practice.

In 1990, the Supreme Court changed course yet again, holding that the Free Exercise Clause does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). Employment Division v. Smith (1990). Though it did not return to the belief-action distinction, the Court echoed Reynolds concern that religious exemptions permit a person, by virtue of his beliefs, to become a law unto himself, contradicting both constitutional tradition and common sense. Any exceptions to religiously-neutral and generally-applicable laws, therefore, must come from the political process. Smith went on to hold that the Free Exercise Clause does not protect the sacramental use of peyote, a hallucinogenic drug, by members of the Native American Church.

Smith proved to be controversial. In 1993, overwhelming majorities in Congress voted to reinstate the pre-Smith compelling-interest test by statute with the Religious Freedom Restoration Act (RFRA). RFRA authorizes courts to exempt a person from any law that imposes a substantial burden on sincere religious beliefs or actions, unless the government can show that the law is the least restrictive means of furthering a compelling governmental interest. Almost half of the states have passed similar lawsstate RFRAsapplicable to their own laws. In 1997 the Supreme Court held that Congress had constitutional authority only to apply RFRA to federal laws, and not to state or local laws. Congress then enacted a narrower law, the Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies the compelling-interest test to state laws affecting prisoners and land use. RFRA and RLUIPA have afforded exemptions in a wide range of federal and state contextsfrom kosher and halal diets for prisoners, to relief from zoning and landmark regulations on churches and ministries, to exemptions from jury service.

Although some exemption claims brought under these religious freedom statutes have been relatively uncontroversialthe Supreme Court unanimously protected the right of a tiny religious sect to use a hallucinogenic drug prohibited by federal law and the right of a Muslim prisoner to wear a half-inch beard prohibited by state prison rulessome touch on highly contested moral questions. For example, the Court by a 5-4 vote excused a commercial family-owned corporation from complying with the contraception mandate, a regulation which required the corporations health insurance plan to cover what its owners believe are abortion-inducing drugs. Burwell v. Hobby Lobby Stores Inc. (2014). In the wake of Hobby Lobby and the Courts subsequent determination that states may not deny gays and lesbians the right to civil marriage, state RFRAs have become a flashpoint in conflicts over whether commercial vendors with religious objections may refuse their products and services to same-sex weddings.

Besides RFRA and other exemption statutes, the Free Exercise Clause itself, even after Smith, continues to provide protection for believers against burdens on religious exercise from laws that target religious practices, or that disadvantage religion in discretionary, case-by-case decision making. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993), for example, the Court unanimously struck down a local ordinance against the unnecessary killing of animals in a ritual or ceremonya law that was drawn to apply only to a small and unpopular religious sect whose worship includes animal sacrifice.

The Court recently recognized that the Free Exercise Clause (along with the Establishment Clause) required a religious exemption from a neutral and general federal antidiscrimination law that interfered with a churchs freedom to select its own ministers. The Court distinguished Smith on the ground that it involved government regulation of only outward physical acts, while this case concerns government interference with an internal church decision that affects the faith and mission of the church itself. Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. (2012).

It remains unclear whether Lukumi and Hosanna-Tabor are narrow exceptions to Smiths general presumption against religious exemptions, or foreshadow yet another shift towards a more exemption-friendly free exercise doctrine.

At the time the United States adopted the First Amendment to the Constitution, other nations routinely imposed disabilities on religious minorities within their borders, depriving them of legal rights, making it difficult or impossible to practice their faith, and often enabling violent persecution.

One of this nations deepest commitments is to the full, equal, and free exercise of religion a right that protects not only believers, but unbelievers as well.

Religious Liberty Is Equal Liberty by Frederick Gedicks

At the time the United States adopted the First Amendment to the Constitution, other nations routinely imposed disabilities on religious minorities within their borders, depriving them of legal rights, making it difficult or impossible to practice their faith, and often enabling violent persecution. The Free Exercise Clause was thus an exceptional political achievement, imposing a constitutional norm of civic equality by prohibiting the federal government from interfering with all religious exerciseregardless of affiliation.

Only a few years before the First Amendment was ratified, James Madison wrote that all people naturally retain equal title to the free exercise of Religion according to the dictates of conscience without the governments subjecting some to peculiar burdens or granting to others peculiar exemptions. A Memorial and Remonstrance against Religious Assessments (1785). As Madison suggested, at the time the Constitution and Bill of Rights were ratified, the guarantee of religious free exercise was understood to protect against government discrimination or abuse on the basis of religion, but not to require favorable government treatment of believers. In particular, there is little evidence that the Founders understood the Free Exercise Clause to mandate religious exemptions that would excuse believers from complying with neutral and general laws that constrain the rest of society.

The Supreme Court has historically left the question of religious exemptions to Congress and the state legislatures. The first judicially-ordered exemptions arose in the 1960s and early 1970s, when the Supreme Court held the Free Exercise Clause required religious exemptions for Amish families who objected to sending their children to high school, and for employees who were denied unemployment benefits when they lost their jobs for refusing to work on their Sabbath. This doctrine of judicially-ordered exemptions, however, was an historical aberration. In Employment Division v. Smith (1990), the Court considered a claim by members of a Native American religion who lost their jobs as drug counselors for using an illegal drug in a religious ritual. The Court abandoned its new doctrine of religious exemptions, ruling that the Free Exercise Clause did not grant believers a right to exemptions from religiously neutral, generally applicable laws, though legislatures were free to grant such exemptions if they wished. This relegation of exemptions to the political process in most circumstances returned the Free Exercise Clause to its historical baseline. Notwithstanding the narrow ministerial exception recognized in Hosanna-Tabor Evangelical Church & School v. EEOC (2012), the Court has repeatedly affirmed Smith and the century of precedent cited in that case, and has shown no inclination to overturn its basic principle that neutral and general laws should apply equally to all, regardless of religious belief or unbelief.

The growth of social welfare entitlements and religious diversity in the United States has underscored the wisdom of the Smith rule. Exempting believers from social welfare laws may give them a competitive advantage, and also may harm those whom the law was designed to protect or benefit.

For example, the Court refused to exempt an Amish employer from paying Social Security taxes for his employees, reasoning that doing so would impose the employers religious faith on the employees by reducing their social security benefits regardless of whether they shared their employers religious objection to government entitlement programs. United States v. Lee (1982). Similarly, the Court refused to exempt a religious employer from federal minimum wage laws, because doing so would give the employer an advantage over competitors and depress the wages of all employees in local labor markets. Tony & Susan Alamo Foundation v. Secretary of Labor (1985).

Read the full discussion here.

The Court seems poised to adopt this third-party burden principle in decisions interpreting the 1993 Religious Freedom Restoration Act (RFRA) as well. Five Justices in Burwell v. Hobby Lobby Stores, Inc. (2014), expressly stated that RFRA exemptions imposing significant costs on others are not allowed. The majority opinion likewise acknowledged that courts must take adequate account of third-party burdens before ordering a RFRA exemption.

The growth of religious diversity makes a religious exemption regime doubly impractical. The vast range of religious beliefs and practices in the United States means that there is a potential religious objector to almost any law the government might enact. If religious objectors were presumptively entitled to exemption from any burdensome law, religious exemptions would threaten to swallow the rule of law, which presupposes its equal application to everyone. As the Court observed in Lee, a religiously diverse social welfare state cannot shield every person . . . from all the burdens incident to exercising every aspect of the right to practice religious beliefs.

Even under the equal-liberty regime contemplated by the Founders and restored by Smith, government remains subject to important constraints that protect religious liberty. Religious gerrymanders, or laws that single out particular religions for burdens not imposed on other religions or on comparable secular conduct, must satisfy strict scrutiny under the Free Exercise Clause. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993); Sherbert v. Verner (1963). Under RFRA and the related Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the federal government and often the state governments are prohibited from burdening religious exercise without adequate justification. Holt v. Hobbs (2015); Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (2005). And, like judicially-ordered exemptions, legislative exemptions that impose material costs on others in order to protect believers free exercise interests may be invalid under the Establishment Clause, which protects believers and unbelievers alike from bearing the burdens of practicing someone elses religion. Estate of Thornton v. Caldor (1985).

If exemptions are to be afforded to those whose religious practices are burdened by neutral and general laws, they should generally not be granted by courts, but by the politically accountable branches of the federal and state governments. These branches are better situated to weigh and balance the competing interests of believers and others in a complex and religiously-diverse society.

Free Exercise: A Vital Protection for Diversity and Freedom by Michael McConnell

One of this nations deepest commitments is to the full, equal, and free exercise of religion a right that protects not only believers, but unbelievers as well. The government cannot use its authority to forbid Americans to conduct their lives in accordance with their religious beliefs or to require them to engage in actions contrary to religious conscience even when the vast majority of their countrymen regard those beliefs as backward, mistaken, or even immoral.

Unfortunately, in the last few years and especially since the Supreme Courts decision requiring states to recognize same-sex marriage this consensus in favor of tolerance has been slipping. All too often, we hear demands that religious people and religious institutions such as colleges or adoption agencies must join the state in recognizing same-sex marriages (or performing abortions or supplying contraceptives, or whatever the issues happen to be), or lose their right to operate.

That has not been the American way. When this country severed its ties with the British Empire, one thing that went with it was the established church. To an unprecedented degree, the young United States not only tolerated but actively welcomed people of all faiths. For example, despite his annoyance with the Quakers for their refusal to support the revolutionary war effort, Washington wrote to a Quaker Society to express his wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit. Letter to the Annual Meeting of Quakers (1789).

What would it mean to have a regime of free exercise of religion? No one knew; there had been no such thing before. It quickly became clear that it was not enough just to cease persecution or discrimination against religious minorities. Just two years after the ink was dry on the First Amendment, the leader of the Jewish community in Philadelphia went to court and asked, under authority of his states free exercise clause, to be excused from complying with a subpoena to appear in court on his day of sabbath. He did not ask that the state cease to do official business on Saturday, but he did ask the court to make an exception an accommodation that would enable him to be faithful to the Jewish law.

This would become the central interpretive question under the Free Exercise Clause: Does it give Americans whose religions conflict with government practices the right to ask for special accommodation, assuming an accommodation can be made without great harm to the public interest or the rights of others?

Read the full discussion here.

In the early years, some religious claimants won and some lost. The Mormon Church lost in a big way, in the first such case to reach the United States Supreme Court. Reynolds v. United States (1878). In 1963, the Supreme Court held that the Free Exercise Clause of the First Amendment does require the government to make accommodations for religious exercise, subject as always to limitations based on the public interest and the rights of others. Sherbert v. Verner (1963). In 1990, the Court shifted to the opposite view, in a case involving the sacramental use of peyote by members of the Native American Church. Employment Division v. Smith (1990).

Today we have a patchwork of rules. When the federal government is involved, legislation called the Religious Freedom Restoration Act grants us the right to seek appropriate accommodation when our religious practices conflict with government policy. About half the states have similar rules, and a similar rule protects prisoners like the Muslim prisoner who recently won the right to wear a half-inch beard in accordance with Islamic law, by a 9-0 vote in the Supreme Court. Holt v. Hobbs (2015).

The range of claims has been as diverse as the religious demography of the country. A small Brazilian sect won the right to use a hallucinogenic drug in worship ceremonies; Amish farmers have won exceptions from traffic rules; Muslim soldiers have been given special accommodation when fasting for Ramadan; Orthodox Jewish boys won the right to wear their skullcaps when playing high school basketball; a Jehovahs Witness won the right to unemployment compensation after he quit rather than working to produce tank turrets; a Mormon acting student won the right to refuse roles involving nudity or profanity; and in the most controversial recent case, a family-owned business with religious objections to paying for abortion-inducing drugs persuaded the Supreme Court that the government should make those contraceptives available without forcing them to be involved.

In all these cases, courts or agencies came to the conclusion that religious exercise could be accommodated with little or no harm to the public interest or to others. As Justice Sandra Day OConnor (joined by liberal lions Brennan, Marshall, and Blackmun) wrote: courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests. Employment Division v. Smith (1989) (concurring opinion).

At a time when the Supreme Courts same-sex marriage decision has allowed many millions of Americans to live their lives in accordance with their own identity, it would be tragic if we turned our backs on the right to live in accordance with our religious conviction, which is also part of who we are. A robust protection for free exercise of religion is not only part of the American tradition, it is vital to our protection for diversity and freedom.

Freedom of Speech and the Press

Congress shall make no law . . . abridging the freedom of speech, or of the press. What does this mean today? 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 exceptional circumstances.

Although the First Amendment says Congress, the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.

The Supreme Court has interpreted speech and press broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.

The Supreme Court has held that restrictions on speech because of its contentthat is, when the government targets the speakers messagegenerally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information the people should be allowed to hear.

There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.

Original post:

First Amendment to the United States Constitution

Trump, the press, the First Amendment and Thomas Jefferson – Washington Post

President Trumps attacks on the fake news media the enem[ies] of the people, including the New York Times, CNN and NBC News would be hilarious, coming from a guy who routinely makes up facts (on everything from the murder rateto the number of people casting ballots illegally (and who they voted for!) in the presidential election to the size of the trade deficit to the number of people attending his inauguration to . . . ) and whose election, we now know, was supported by a large number of disinformation websites operated and/or funded by a hostile foreign government, were it not so disturbing.

It made me wonder: Does last weeks Gaggle Order the decision to ban the New York Times, CNN, Politico, Buzz Feed, and the Los Angeles Times reporters from Sean Spicerspress gaggle violate the First Amendment?

Turns out thats a close question. It certainly looks, at first glance, like a prohibited content-based (or possibly even viewpoint-based) discrimination limiting the affected outletsability to receive information, which would subject it to the highest form of First Amendment scrutiny and require some compelling justification to be constitutional. On the other hand, surely the First Amendment doesnt prevent a president (or his press secretary) from, say, granting an exclusive interview (or providing a leak) to one (favored) reporter or paper or TV network and not another.

Theres actually an old D.C. Circuit case that is rather closely on point: Sherrill v. Knight (569 F.2d 124 (1977), available here). Sherrill, the Washington correspondent for the Nation a publication with well-known left-wing proclivities applied for and was denied a White House press pass (during LBJs presidency). The denial, however, was apparently due not to any content- or viewpoint-based animus towards Sherrill or to the Nation, but resulted solely from the determination of the Secret Service, after investigating Mr. Sherrill, that he not be issued the pass although the Secret Service refused to reveal to Sherrill the information it had on which the denial was based.

The court concluded that while it would not order the White House to issue the pass, it would order the White House to provide Sherrill with notice, opportunity to rebut, and a written decision regarding his application.

The court held (and the government itself conceded) that the denial of a White House press pass potentially infringes upon first amendment guarantees. . . . [and] itis violative of the first amendment if it is based upon the content of the journalists speech or otherwise discriminates against a class of protected speech. . . . Arbitrary or content-based criteria for press pass issuance are prohibited under the first amendment.

The court rejected the governments argument that because the public has no special right of access to the White House, and because the right of access due the press generally is no greater than that due the general public, denial of a White House press pass is violative of the first amendment only if it is based upon the content of the journalists speech or otherwise discriminates against a class of protected speech.

[W]e are presented here with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide Washington-based journalists, whereas most of the White House itself, and press facilities in particular, have not been made available to the general public. White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded news-gathering under the first amendment guarantee of freedom of the press, see Branzburg v. Hayes, 408 U.S. 665, 681, 707 (1972); Pell v. Procunier, 417 U.S. 817, 829-35 (1974), requires that this access not be denied arbitrarily or for less than compelling reasons. See Southeastern Promotions v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Lovell v. Griffin, 303 U.S. 444 (1938).

Given the important first amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists, the court held that such refusal must be based on a compelling governmental interest.

Clearly, protection of the president is a compelling, even an overwhelming, interest. The court had no basis for rejecting the explicit finding of the District Court that . . .denial of a press pass to [Sherrill] proceeded solely from concern for the physical security of the President, and thus the court was unwilling to order the White House to issue Sherrill a pass. It did, however, order the White House to provide notice [to Sherrill] of the factual bases for denial, an opportunity for him to respond to these, and a final written statement of the reasons for denial, which it called a minimum prerequisite for ensuring that the denial is indeed in furtherance of Presidential protection, rather than based on arbitrary or less than compelling reasons.

So if the White House had revoked a New YorkTimes reporters press pass, or denied access to the White House press room, there would be strong grounds for a claim of unconstitutional executive action. But at the same time, the First Amendment doesnt prevent a president from, say, granting an exclusive interview to one (favored) reporter or TV network and not another; as the court put it, it would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all.

So back to Spicer. The question here seems to turn on what, exactly, is this press gaggle? Is it more closely analogous to a press briefing, ostensibly open to any and all bona fide reporters? Or is it more like an interview, in connection with which the president (or his press secretary) has considerable discretion to discriminate between those he does or doesnt invite?

I cant say for certain; I had never heard of these press gaggles before, and I dont have a lot of information about how they operate, though it does sound like its closer to the latter than to the former.

And while were on the subject, what is particularly galling to me, and to anyone who calls him/herself a Jeffersonian as I do, is the way that Trump has enlisted Jeffersons support in his attacks on the press. For instance, at aFlorida rallylast week, he said:

They [the press] have their own agenda and their agenda is not your agenda. In fact, Thomas Jefferson said, nothing can be believed which is seen in a newspaper. Truth itself, he said, becomes suspicious by being put into that polluted vehicle, that was June 14, my birthday, 1807. But despite all their lies, misrepresentations, and false stories, they could not defeat us in the primaries, and they could not defeat us in the general election, and we will continue to expose them for what they are, and most importantly, we will continue to win, win, win.

It is certainly the case that Jefferson had a very rocky relationship with the press, and said some very uncomplimentary things (as in the 1807 letter to John Norvellfrom which Trump was quoting) about them, and about what he called elsewhere the putrid state into which our newspapers have passed and the malignity, the vulgarity, and mendacious spirit of those who write for them. . . . These ordures are rapidly depraving the public taste and lessening its relish for sound food.

But Jefferson unlike some presidents I am aware of understood very well the difference between his private disputes with the press and his personal views about press activity expressed inhis private correspondence,on the one hand, and his statements and actions taken in his public capacity and his public writings on the other, in which he was quite possibly the strongest supporter of a free and unfettered press that this country has ever had.

He rode into office in 1800, of course, on the wave of public indignation about the Adams administrations Sedition Act, which made it a federal crime punishable by up to two years in prison to criticize the government to write, print, utter, or publish, any malicious writings against the government of the United States, or either House of Congress, or the President, or anything that would bring them into disrepute.

Heres the text of the Sedition Act, which is worth reading if youve not read it before:

And be it further enacted, That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

Scores of newspaper editors had been tossed into jail, and it was Jefferson, along with James Madison, who led the fight to declare theact unconstitutional.***

*** The Virginia Resolution, passed by the state assembly (and co-authored by Jefferson and Madison) declared that the Sedition Act (along with its sister statute, the Alien Act) was unconstitutional:

It exercises a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.

[The Virginia Constitution] expressly declares that among other essential rights, the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States, it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn to the most palpable violation of one of the Rights declared and secured in the [U.S.] constitution, and to the establishment of a precedent which may be fatal to the others.

[T]he General Assembly doth solemenly declare that the acts aforesaid are unconstitutional

A wonderful anecdote possibly anecdotal from Jeffersons presidential years captures his attitude well.

In 1804, the celebrated traveller, Baron Humboldt, called on the President one day, and was received into his office. On taking up one of the public journals which lay upon the table, he was shocked to find its columns teeming with the most wanton abuse and licentious calumnies of the President. He threw it down with indignation, exclaiming, Why do you not have the fellow hung who dares to write these abominable lies?

The President smiled at the warmth of the Baron, and replied What! hang the guardians of the public morals? No sir, rather would I protect the spirit of freedom which dictates even that degree of abuse. Put that paper into your pocket, my good friend, carry it with you to Europe, and when you hear any one doubt the reality of American freedom, show them that paper, and tell them where you found it.Sir, the country where public men are amenable to public opinion; where not only their official measures, but their private morals, are open to the scrutiny and animadversion of every citizen, is more secure from despotism and corruption, than it could be rendered by the wisest code of laws, or best formed constitution. Party spirit may sometimes blacken, and its erroneous opinions may sometimes injure; but, in general, it will prove the best guardian of a pure and wise administration; it will detect and expose vice and corruption, check the encroachments of power, and resist oppression; sir, it is an abler protector of the peoples rights, than arms or laws.

But is it not shocking that virtuous characters should be defamed? replied the Baron. Let their actions refute such libels, continued the President; believe me, virtue is not long darkened by the clouds of calumny, and the temporary pain which it causes is infinitely overweighed by the safety it insures against degeneracy in the principles and conduct of public functionaries. When a man assumes a public trust, he should consider himself as public property, and justly liable to the inspection and vigilance of public opinion; and the more sensibly he is made to feel his dependence, the less danger will there be of his abuse of power, which is that rock on which good governments, and the peoples rights, have been so often wrecked.

[from Sketches of the Life, Writings, and Opinions of Thomas Jefferson (1832) by B. L. Rayner]

Jefferson truly believed and acted always in accordance with the belief that free speech and a free press were the two indispensable conditions for maintaining our freedom in the face of abusive governmental power.

Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it. . . .Where the press is free and every man able to read, all is safe.To preserve the freedom of the human mind and freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, and speak as we think, the condition of man will proceed in improvement.

No experiment can be more interesting than that we are now trying, and which we trust will end in establishing that man may be governed by reason and truth. Our first object should therefore be to leave open to him all the avenues to truth. The most effectual agent hitherto found is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions.

An executive strictly limited, the right of war vested in the legislative body, a rigid economy of the public contributions, and absolute interdiction of all useless expences, will go far towards keeping the government honest and unoppressive. But the only security of all is in a free press.The force of public opinion cannot be resisted, when permitted freely to be expressed. the agitation it produces must be submitted to, for it is necessary to keep the waters pure.

He could not have been clearer: a rambunctious and occasionally scurrilous and abusive press and if you think the press is a problem today on these grounds, you shouldread the papers from 1802 or thereabouts is the price we pay to maintain and safeguard all of our other rights. It is so difficult to draw a clear line of separation between the abuse and the wholesome use of the press, that as yet we have found it better to trust the public judgment, rather than the magistrate, with the discrimination between truth and falsehood.Considering the great importance to the public liberty of the freedom of the press, and the difficulty of submitting it to very precise rules, the laws have thought it less mischievous to give greater scope to its freedom than to the restraint of it.

So if Trump is channeling any historical figure in calling out the press as the enemies of the people, it is Joseph Stalin, or possibly Robespierre, not Thomas Jefferson.

The rest is here:

Trump, the press, the First Amendment and Thomas Jefferson - Washington Post

Rosenberg: Airbnb law amounts to a first Amendment violation – Long Island Business News (subscription)

Traditionally, I avoid using this column to discuss issues that directly relate to my role as an attorney, as I find such practice self-serving and of dubious value for you, dear reader.

Yet, for every rule there is an exception, and the issue soon to be debated in a New York City court has such profound implications for businesses throughout the state that it is worth the time to examine the matter.

Simply distilled, a state law applicable only to NYC currently makes it unlawful to advertise occupancy or use of dwelling units where that occupancy would violate the Multiple Dwelling Law. This improper gag law is so broadly written that it covers literally any form of communication. If a similar statute is adopted with state wide application it would threaten literally any company or individual that seeks to contract for goods or services, whether through traditional mediums or the Internet. This was a law the state legislature granted to the city with the power to enforce, so the potential for this legislation to spread like a toxic weed throughout New York is real (although how it was enacted may be fatally flawed).

Originally designed to constrain Airbnbs widely successful business model of allowing apartment owners and tenants to briefly rent out their dwellings, the city capitulated in enforcing the law against the multibillion dollar Airbnb corporation and even stipulated in Federal Court that City Hall will permanently refrain from taking any action to enforce it against Airbnb.

What New York City forgot is that, irrespective of whether you are up against Airbnb or the lonely apartment owner or tenant, you cant violate the First Amendment. By prohibiting rental advertisements, the city imposes a content-based speech restriction subject to what the law calls heightened judicial scrutiny. It attempts to create, in essence, a legal house of mirrors that the city hopes defendants wont possibly navigate in their attempt to defend themselves.

More threatening for the rest of us who arent looking to offer short term rentals, the city law chills protected commercial speech. The threat of fines and liability would likely impose a form of self-censorship in the marketplace as the interpretation of what is permitted and what is prohibited becomes vague, blurred and problematic. If I ran a magazine, newspaper, broadcast operation or advertising agency, I would be extremely concerned about this laws draconian reach.

The city law also violates the First Amendment and the Due Process Clause of the Fourteenth Amendment because it seeks to impose strict civil and criminal liability against alleged violators. Specifically, there is no requirement in the statute that an alleged violator know that an advertisement is unlawful. Fortunately, there is precedent here. The U.S. Supreme Court has rejected such efforts to impose strict liability for the dissemination of information, even where, unlike here, the content itself lacks First Amendment protection.

Of course, the City could simply go after those who actually rent units unlawfully, rather than those that merely advertise such rentals, but they seem to have decided there is far easier to pick up a lot of money by just spotting the ads than by actually knocking on the doors of alleged violators to see if a violation has in fact occurred. In fact, the city has recently allocated several million dollars to fund inspectors whose task is to identify and fine apartment owners and tenants who post illegal listings. It is a fair bet they expect to make back that investment quickly by tabulating illegal ads and then sending notices costing $1,000 per first violation, $5,000 per second violation and $7500 per third violation gotcha.

Prohibition taught America that flawed laws and ill-conceived enforcement breeds nothing but contempt for government, for trying to make criminals out of all of us. The City of New York, and by extension the New York State Legislature, would better serve the public if they would promptly review their illegal assault on freedom of commercial speech and strike this improper unconstitutional statute from the books before the courts do it for them.

Rosenberg, a graduate of St. Johns University Law School and resident of Old Westbury, is senior founding with Rosenberg, Calica & Birney LLP, a Garden City law firm.

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Rosenberg: Airbnb law amounts to a first Amendment violation - Long Island Business News (subscription)

LETTER TO THE EDITOR: We must defend our First Amendment rights – Bemidji Pioneer

After assembling, however, an irate motorist pulled up and yelled go home. Protesters responded cooly with Well pray for you! The motorist drove off only to return moments later yelling more abuses. To be heard over the insults, the protesters yelled back, Well pray for you! The exchange was brief and nonviolent. Nevertheless, two Bemidji Police vehicles soon arrived. One officer entered the bank. Another officer approached the protesters. The officer acknowledged their peaceful assembly and thanked them for exercising their First Amendment rights. After polite discussion, the officer shook hands with protesters. They even took a group photo! Hallelujah. Libertys light stills shines. But for how long?

The right to peaceful assembly is protected under the First Amendment. It is the cornerstone to a healthy democracy. Yet to date, 18 states have introduced legislation stiffening penalties for peaceful demonstrators. In Minnesota, HF 322 represents such a threat. Although the wording appears benign, its intent is perhaps less innocent. If demonstration activity is deemed unlawful, governmental units could sue individuals to recover public safety response costs. Minnesota Statute 609.705 defines unlawful as disturbing or threatening the public peace. Who decides an assembly is disturbing the peace? Will HF 322 dissuade law-abiding citizens from public demonstration? Yes, probably. Is that the true intent of the bill? Probably, yes.

If protesting raises awareness, perchance increasing others willingness to demonstrate, then unprincipled politicians may seek to deter this right. James Madison, co-author of the U.S. Constitution and Bill of Rights, recognized this threat. I share his words, ...there are more instances of abridgement of freedom of the people by gradual and silent encroachment (by those in power) than by violent and sudden usurpations. HF 322 is such an encroachment representing the gradual effort to criminalize protesters.

This is a defining chapter in American democracy. It is my hope, despite our partisan differences, we fight to maintain this fundamental freedom. Whether you are a water protector or a pro-lifer, this bill should concern you and motivate us to collectively defend our most rudimentary rights.

Susan Kedzie

On behalf of Indivisible Bemidji, a local effort to raise awareness on social and environmental issues.

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LETTER TO THE EDITOR: We must defend our First Amendment rights - Bemidji Pioneer

Arizona GOP leader kills bill that trampled First Amendment speech after widespread outcry – Daily Kos

Sometimes First Amendment speech can actually save First Amendment speech, and that's a very good thing. Due to widespread opposition, Arizona's Republican House speaker decided to kill a bill that would have made it a criminal offenseto plan a protest that led to rioting. The AP writes:

The measure passed last week by the Senate drew nationwide attention, particularly from civil libertarians, because it classified violent protest as an organized crime and said protesters who didn't initially intend to riot could still face criminal charges. That attention led Speaker J.D. Mesnard to decide Monday to kill it for the session.

Mesnard told The Associated Press that people all across the country now believe that the Arizona Legislature is trying to enact a law that will suppress their First Amendment right to assemble.

"It's gotten a lot of attention, and frankly whether it's fair or unfair, whether its accurate or inaccurate, at this point doesn't matter," he told the AP. "That's certainly not what the Legislature wants to be about I know that's not what the sponsor wanted in the first place. The best way to send a very clear signal that we're not doing it is to not move the bill."

Chalk one up for the First Amendment. Weneed it now more than ever.

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Arizona GOP leader kills bill that trampled First Amendment speech after widespread outcry - Daily Kos

Q&A: Floyd Abrams on the battle for the soul of the First Amendment – Columbia Journalism Review

The facade of the Newseum in Washington, DC, features the First Amendment. Photo via PublicDomainPictures.net.

Attorney Floyd Abrams, who represented The New York Times in the 1971 Pentagon Papers case and went on to become Americas leading First Amendment litigator, talked with CJR about President Trumps unprecedented assault on the press, whether leaks from government officials are appropriate, and how the growing acceptance of speech restrictions is an ominous sign for our democracy. The conversation has been edited for length and clarity.

CJR: I know youre busy, so lets get straight to it. Shortly after the election, you said Donald Trump may be the greatest threat to the First Amendment since the passage of the Sedition Act of 1798. Why is he a threat?

Abrams: I dont think weve had anyone who ran for the presidency in a manner which suggested the level of hostility to the press than did Donald Trump. And we certainly havent had any president who has made as a central element of his presentation while in office a critique of such venom and threat as weve heard in the last month. Now, we dont know how much is talk and what if anything he may do as president apart from the impact of his words. That in and of itself is important. Any effort to delegitimize the press as a whole and any recitation of statements such the one just a few days ago, saying that the press is the enemy of the American people, itself raises serious issues even if he never took any legal steps against the press. Words matter. And the words of the president matter particularly. So a president that basically tells the people that the press is its enemy is engaged in a seriousand deliberately seriousthreat to the legitimacy of the press and the role it plays in American society.

CJR: How do you see this as unique to Trump as opposed to say the Nixon administration? Is this more of a wholesale condemnation of the press?

Abrams: Yes. This is an across the board denunciation of any and all press organizations that have published or carried stories which have been critical of the president. That goes well beyond anything President Nixon did. That said, its perfectly true to say that throughout American history weve had presidents who disparaged the pressJefferson himself did that more than once, sometimes amusingly, and sometimes not. Teddy Roosevelt authorized a criminal proceeding to be brought against Joseph Pulitzer for certain stories about the construction of the Panama Canal. So, its still earlyvery earlyin the Trump administration, but the signs are troubling, and the repeated effort to delegitimize the press as a whole is something new and extremely disturbing.

CJR: How could Trump, with his executive powers, actually launch an assault on the press that could threaten the First Amendment?

Abrams: He could do some of the things that President Nixon made some efforts at doing. The Internal Revenue Service has confidential information about the press leaders as well as everyone else. The Federal Communications Commission has broad authority over the broadcast medium. The Department of Justice has authority to determine when to bring Espionage Act claims. So, there are areas of governmental power and authority which could be called upon if a president were of a mind to do so and was willing to engage in a still more overheated public debate about the bona fides of any effort to do so.

CJR: Trump and others have denounced the culture of illegal leaks in Washington and called the deep state a threat to our democracy. Im wondering, what do you see as the difference between leaks by Edward Snowden or Daniel Ellsberg and their role in a functioning democracy, and the recent leak about National Security Adviser Michael Flynn, who was forced to resign after information was released about his meeting with Russian agents before Trump took office?

Abrams: First, let me say that Im not in favor of all leaks. I dont think the government should simply be open to anyone who has access to it, and I think that the behavior of WikiLeaksand in my view sometimes the behavior of Edward Snowdenmakes that case. I think there were documents, highly classified documents, made available by Snowden that had nothing to do with domestic surveillance, and a good deal to do with the ordinary and entirely proper efforts of the United States to protect itself in a dangerous world. That said, however, the information provided about former General Flynn seemed to me amongst the most important sort of data that served the public interest in becoming public. I mean here is a situation in which it appears that the very day that President Obama imposed sanctions on Russia that there were conversations, the substance of which we dont yet know, but conversations between General Flynn and a Russian ambassador and perhaps other Russian authorities. So from my perspective the central issue about him is not that he lied about it to the vice president. Vice presidents have been ignored throughout American history, and Im sure theyve been lied to more than once by people who viewed themselves as having more relevant positions. What concerns me is the possibility that General Flynn was essentially saying to a foreign nation that is adverse to our interests: Pay no attention to what the president of the United States is doing, well take care of that down the road. That would be highly improper and perhaps illegal.

CJR: So when people say Snowden was praised for revealing the surveillance of ordinary citizens, which is what people who use this argument say Michael Flynn was at the time, as well as Paul Manafort, Trumps former campaign manager, they are in fact not just ordinary citizens when they are speaking with foreign actors that are known agents, is that correct?

Abrams: Yes. A person who is closely involved with a president-elect is hardly the same as the people that WikiLeaks exposed by printing or making available the Social Security numbers of every sundry employee whose documents happen to come into WikiLeaks possession. So the more important the person and the more the person has a potentially direct impact on American public policy, let alone American national security, the more defensible it is in certain circumstances to find out information about his behavior and to reveal it to the public. And I think thats precisely where the revelations about General Flynn fit.

CJR: This administration has targeted the use of anonymous sources in particular, arguing that they are somehow fake or just a product of leaks with political intent. Do you think the press can do a better job of using anonymous sources?

Abrams: Well, a part of this relates to the manner of presentation. Is there a more revealing way to let the public know why the journalistic organization believes these sources are credible? One way they can do that, The New York Times and other publication routinely do, is use numbers. Six confidential sources said this. Where there is a way to identify why this source is credible, without revealing the identity of the source, or providing too much identity on how to determine who the source is, it should be followed. I dont think this is a fake news problem, this is a credibility problem. And its very important at this time that the press say as much as they possible can justifying their reliance on the sources that they have. Otherwise, you just wind up with White House Chief of Staff Reince Priebus or President Trump saying there are no sources, and no one having any basis to judge apart from ones own view as to the credibility of the publisher thats offering this information to the public.

CJR: In that same vein, youve said that the press may need to go on the offensive in terms of using litigation against claims by this administration that certain news stories are lies and certain news organizations progenitors of fake news.

Abrams: What Ive said is that there are situations that I could imagine in which statements made by the president or people high in his administration could give rise to libel litigation. Every other democratic nation that I can think of, all of which provide less First Amendment protection than we do, have some body of libel law, and libel suits are brought under them. I dont believe that its illegitimate for the press to avail itself of libel law in certain extraordinary circumstances. Now no one should know better than the press that we protect under the First Amendment a high levelan extraordinary levelof name calling, of generalizations, and rhetorical hyperbole. We do that on purpose. And I dont think that a general statementfor example, that the news is fakeis anything but that. The president is entitled to First Amendment rights as well as everyone else. And its important for the public to be able to hear and pass judgment on the president, and what hes saying, and what hes thinking. But there are things that might be said about particular journalists or particular news organizations which are false and known to be false by the person saying them. While the press is understandably used to defending libel suits, it ought to bear in mind that it has rights, too. And if the charges against it are clear enough, false enoughobviously known to be falseI think it should not give up the chance to use all the protections that the law affords it.

CJR: You famously represented the plaintiff in Citizens United defending the First Amendment rights of a conservative nonprofit corporation. Do you see the assault on free speech coming not just from Trump but also from speech codes and other speech restrictions on college campuses? Is there some relationship between whats happening with restrictions on speech on the left and whats happening on the right?

Abrams: I dont think one causes the other. But I do think that the farther down the road we go of limiting speech, whether its of the left or the right, the easier it is to use that precedent to limit others speech. So, yes, on campuses one of the main victims, and they are victims, of suppression of speech has been conservative groups. At Fordham University in 2012 here in New York, for example, the Republican Club wanted to invite Ann Coulter to speak and they werent allowed to do it. Basically the school said it would be alright if you had her on a panel. Thats a sort of disgraceful suppression of speech, and its occurred elsewhere at many universities. In 2013, the New York City police commissioner at the time, Ray Kelly, was shouted down at Brown University. Last year, the Israeli mayor of Jerusalem was shouted down at San Francisco State. Weve got a lot of situations in which speech has been limited or suppressed in an unacceptable way. Now I have to say, I dont think that President Trump would behave any differently than he does, or would have any different views than he does, whether or not this campus plague of speech suppression had occurred. But I am concerned that there has been on both sides and in a number of different contexts a willingness to limit speech, punish speakers, and otherwise act in a contrary way to both the law and the spirit of the First Amendment.

CJR: A 2015 survey of some 800 undergraduate students, sponsored by the William F. Buckley Jr. Program at Yale, found that 51 percent of students favor their school having speech codes and trigger warnings. Nearly one-third of the students could not name the constitutional amendment dealing with free speech. And 35 percent said that the First Amendment does not protect hate speech. Does that make it easier for the president and his administration to attack speech they disapprove of and the press in general?

Abrams: Well, yes it does. Ive thought for some time that one of the real contributions of any administration would be to take whatever steps they could to re-impose a requirement of a civics course in junior high schools or high schools in America. We need people who are educated about the Constitution in general and the First Amendment in particular at young ages, not the moment they get into college. But to the extent that we are moving towards living in a nation that simply accepts the notion that speech which is viewed as unhealthy or troubling should not occur, First Amendment norms fall easily. And to be clear, I mean First Amendment norms on the broadest level not just legal violations of the First Amendment but what I referred to earlier as the spirit of the First Amendment; that is an acceptance of the notion that people will have a lot of different views on a lot of different subjects, many of which will be difficult or even impossible to seem to live with, but which we at our best have always protected.

CJR: Its interesting that you bring up that civics course. I was just discussing this with Jeffrey Herbst, president of the Newseum in Washington, DC, which does a lot of outreach to try to teach young people about the First Amendment, but also about how to be a consumer of news, which to me seems extremely important.

Abrams: I couldnt agree more. And this one is not Donald Trumps fault, or one partys fault, or one view of the countrys fault. We really have abandoned our children to a very great degree in terms of teaching them what it is that makes the country so special, including the Declaration of Independence, the Constitution, the First Amendment. And its something which I think has to be taught while people are young. I dont blame college kids who get in and want people to behave nicely to each other. A lot of bad speech is nice speech. So it asks a lot of them to just pick up the notion that this is the price we have to pay to live in a free country, and that sort of teaching has to start much earlier.

CJR: Final question. Are you hopeful that, as much change as weve gone through in the news industry, the First Amendment will prevail and well continue to see the presss watchdog role played in different forms, through different business models, online and elsewhere?

Abrams: On that I am optimistic. I think the public wants it. I think there will be a market for it. Whether the press will be powerful enough to fend off presidential power is one issue. But on the broader issue of whether were likely to continue to have a press that exists in a meaningful way and does continue to fight the good fight, I think thats more likely than not. Thats one of the big advantages of having written the Bill of Rights down. I start out my latest book, The Soul of the First Amendment, talking about the Framers arguing whether to have a Bill of Rights at all. In Philadelphia, they voted against the Bill of Rightsunanimously. And Alexander Hamilton wrote in The Federalist, why should we write down something which is so unnecessary? We never said Congress could limit the press; why do we have to say it cant? And if the ultimate decision had not been made to have a written First Amendmentwhich is law, not just a political-science essaywe would live in a very different country. Because we have a First Amendment, I think it will continue to protect us against the widest range of challenges.

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Q&A: Floyd Abrams on the battle for the soul of the First Amendment - Columbia Journalism Review

Barring Reporters From Briefings: Does It Cross a Legal Line? – New York Times


Bloomberg
Barring Reporters From Briefings: Does It Cross a Legal Line?
New York Times
The judge said that the New York Police Department may have violated the First Amendment by revoking the press credentials of the journalist, Jason B. Nicholas. The ruling was preliminary, and the Police Department said it had legitimate reasons for ...
Trump's Love-Hate Relationship With the First Amendment ...Bloomberg
9 Top First Amendment Experts React to White House Press Briefing Ban on CNN, NYT, othersJust Security
Did White House exclusion of press violate First Amendment? Norman Siegel says suit should be filedABA Journal
Conservative Review
all 12 news articles »

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Barring Reporters From Briefings: Does It Cross a Legal Line? - New York Times

Goodwins’ fight against land grab and First Amendment violations gaining national attention – Pacific Legal Foundation (PLF) (press release) (blog)

The Goodwins

This weekend, Forbes carried an excellent story about PLFs fight on behalf of Edward and Delanie Goodwin. In July, PLF attorneys filed a First Amendment challenge to protect the Goodwins right to speak on their own private property. Walton County banned signs on privately owned beaches last year, hoping to allow the public to trespass on private beaches without having to pay for the use. County officials threatened the Goodwins with large fines for keeping two private property signs and one small sign saying If Walton County Wants My Property, It Must Pay For It U.S. Constitution.

In September, the County agreed to temporarily stop enforcing the sign ban. But then in October, it passed an ordinance declaring that the public has a right of custom to use private beaches across the entire county. PLF responded by challenging the Countys blatant land grab as a violation of the U.S. Constitution.

Today, on National Review, George Leef shares more about the Goodwins case, stating,

I read about lots of cases of governmental villainy, but this one is among the worst.

National Reviews Roger Clegg also gave PLF a special shout-out for representing the Goodwins for free (as we do for all of our clients, thanks to our donors generosity). He said,

The generosity and inclusive spirit of PLF are underscored by the fact that, even though it is named after that West Coast ocean, it is happy to litigate on behalf of the owners of beachfront property in Northwest Florida.

Clegg is right. We have cases from coast to coast, with offices in Palm Beach Gardens, Florida; Arlington, Virginia; Bellevue, Washington; Honolulu, Hawaii; and Sacramento, California. We have cases pending in many more states, because government poses threats to liberty across the nation. As Leef wrote this weekend,

At all levels, government poses constant threats to our rights and only through eternal vigilance, as Thomas Jefferson observed, can we protect them.

Read the rest of Leefs excellent Forbes article about the Goodwin casehere.

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Goodwins' fight against land grab and First Amendment violations gaining national attention - Pacific Legal Foundation (PLF) (press release) (blog)

1st Amendment stronger than ever – Hillsboro Times Gazette

The First Amendment is stronger than ever, and is being exercised more freely and aggressively than at any time in our nations history.

That may seem a surprising conclusion based on the handwringing from Big Media outlets like CNN, MSNBC, ABC, CBS, NBC, The New York Times, the Washington Post and others who claim that the First Amendment is under attack from President Trump. But it is nevertheless true.

The Big Media outlets are doing their best to conflate themselves with the First Amendment, i.e., an attack on CNN, they say, is an attack on freedom of the press. That is a lie, as CNN would quickly label a dubious assertion by the president. CNN is merely an organization that takes advantage of First Amendment rights to do its job. CNN is not the embodiment of the First Amendment. Neither is The New York Times or the Washington Post.

What really bothers Big Media is that they are not as relevant, respected or necessary as they once were. But they want to be treated as if they are, as if its still 1950 or 1960 or even 1990. They want to be the exclusive filter through which news and information flows, but they are no longer that, and it is that fact that leads to their frequent hissy fits.

In this internet age, there are tens of thousands of alternative sources for news and information when it comes to national events, at least several hundred of which are regularly consulted by the masses on a daily basis. Most of these newer, alternative news sources are firmly planted in one ideological corner or the other, and their credibility is often suspect but unfortunately the same can be said for CNN, MSNBC, FOX, ABC, CBS, NBC, The New York Times, the Washington Post and countless additional metropolitan newspapers.

The cratering of respect and credibility for the once powerful Big Media outlets is not the fault of President Trump. It is the fault of the media outlets themselves. Their low standing is the result of their own irresponsible choices, culminating in their outrageously biased coverage of the 2016 presidential election.

Trump is off the mark when he criticizes certain outlets for delivering fake news. The news itself the content is real enough. Its the delivery that is flawed. The problem is not fake news. The problem is horrible journalism.

Understanding good journalism does not require an advanced degree. Good journalism is accurate. It is fair. It does not have an agenda. It is not out to get someone. It presents facts as completely as human beings are capable of gathering them. It does not seek out only the negative or the positive about the subjects that are covered. It follows the facts where they may lead, without a preconceived end result. Virtually none of the Big Media outlets follow these simple precepts anymore.

The First Amendment states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What a thing of beauty. So much is covered in so few words. But for todays purpose, our focus is on free speech and the press. Congress shall make no law abridging the freedom of speech, or of the press

The First Amendment does not say, The president shall not criticize the media or call it fake news. It does not say, Certain media outlets above others will have rights of access and the front row at press briefings. It does not say, The president shall always call on CNN for a question during press conferences. None of those examples, when they happen or do not happen, threaten, harm or violate the First Amendment.

When he or his staff holds a briefing or event, the president of the United States can handpick any group of media outlets he desires and exclude any he wants to keep out. Doing so violates no ones First Amendment rights. The only way CNNs First Amendment rights could be violated is if Congress passed a law taking CNN off the air.

Everyone associated with the news media, big or small, has gone through battles with various public officials, whether local, state or national, over access and inclusion. There are always cases where some officials or organizations or groups invite some media outlets to an event and not others, or send press releases to one while not sending to the others, or provide information later to others while getting it into a preferred outlets hands first. These are age-old games that are as ancient as the written word.

When it happens, it is not a violation of anyones First Amendment rights. In some cases, open record or freedom of information laws might be violated, but First Amendment rights are not. Nothing is preventing a media outlet from exercising its First Amendment rights, both by complaining loudly about the treatment and by pursuing the information through a less convenient avenue than having it handed over on a silver platter.

But meanwhile, the First Amendment itself is being exercised in this internet age so freely, so aggressively, so without boundaries that it could be mistaken for being on steroids. Anyone with internet access and a blog, anyone with email, anyone with a Facebook or Twitter account both media members and non-journalists has a worldwide platform to exercise their freedom of speech, even the worst kinds of free speech (anonymous and therefore irresponsible). Far from inhibiting the exercise of free speech and a free press, President Trump, intentionally or not, is demonstrating that the jealous entitlement CNN and other Big Media outlets have had on the First Amendment is a thing of the past.

The only way the traditional Big Media outlets can recapture their special claim on the First Amendment and the respect they once enjoyed is by doing what they are most unlikely to do return to a form of journalism that is fair and unbiased, tough but respectful. Short of that, their standing and influence will continue to diminish. The fault will be theirs, not the presidents.

Reach Gary Abernathy at 937-393-3456 or by email at [emailprotected]

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1st Amendment stronger than ever - Hillsboro Times Gazette

9 Top First Amendment Experts React to White House Press Briefing Ban on CNN, NYT, others – Just Security

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On Friday, the White House barred specific news organizations from attending a press briefing by spokesman Sean Spicer. Among the organizations excluded from the question and answer session were news outlets that President Donald Trump has singled out for criticismincluding Buzzfeed, CNN, the New York Times, and Politico. The White House Correspondents Association stated that its board is protesting strongly against the action.

Many in the media have asked whether the White House actions were unconstitutional. I asked some of the most highly respected First Amendmentlaw experts across the country. Heres what they said.

Robert Corn-Revere, Partner, Davis Wright Tremaine, LLP:

Whether or not a White House press briefing is a public forum, the selective exclusion of certain news organizations or reporters as retaliation for unfavorable news coverage or simply because the Administration does not like the tone of their coverage raises a significant First Amendment problem. While there are not a lot of cases in this area perhaps because most responsible public officials know better than to engage in such tactics they have held that arbitrary denials of press access are unconstitutional. Perhaps more to the point, such actions are deeply offensive to American values generally, and to the spirit of the First Amendment specifically. And that is true regardless whether a Republican or Democratic administration does it.

Lucy Dalglish, Dean of the Philip Merrill College of Journalism at the University of Maryland:

All presidents have tangled with the press in one way or another. They frequently have blackballed one or more newsrooms from interviews with the president. But once they start excluding credentialed White House correspondents from briefings based on their journalism, they have entered new and forbidden territory.

Arthur Eisenberg, Legal Director, New York Civil Liberties Union:

The Supreme Court has long recognized that in administering access to apublic forum, or even alimited forum, government may not privilege some and disadvantage others on the basis of ideological viewpoints. Writing for the Court in Police Department v. Mosley, 408 U.S. 92,96 (1972), Justice Thurgood Marshall observed: The government may not grant the use of aforum to people it finds acceptable, but deny use to those wishing to express less favored or more controversial views. In explaining this proposition, Justice Marshall insisted that [t]here is an equality of status in the field of ideas and government must afford all points of view an equal opportunity to be heard. The Court has further recognized that the First Amendment protects not only the right to speak but the right toreceive information and to engage in the free exchange of ideas.

A presidential press briefing is notapublic forum. The briefing is clearlynot open to all members of the public. But, such an event can comfortably be understood as alimited forum where reporters fromsignificant news outletsare invited as participants.In conferring access to this forum, government officialsmay limit the number of participants to ensure against overcrowding of the room where the event is being held. The officials might also create categorical criteria for exclusion (such as news outlets that publish on a daily basis or whose readership or viewing audience exceeds a certain number). They may even confine the discussion to certain topics. See Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788 (1985). But what the government officials cannot do, consistent with the First Amendment, is to grant or deny access to news agencies or reporters based upon the views expressed by those individuals or publications. To do so, violates aneutrality principle that is basic to the First Amendment.

The Courts adherence to this prohibition against viewpoint discrimination applies even beyond circumstances where government is regulating access to a forum and even when government officials attempt to mask their motives behind laws that appear to be facially neutral. Grosjean v. American Press Company, 297 U.S. 233 (1936) involved a Louisiana tax that singled out for special adverse treatment the newspapers in the State with the largest circulation. The tax did not identify the newspapers by name. It was imposed simply upon newspapers whose circulation exceeded 20,000. But, by no coincidence, these were the newspapers that were most critical of Louisianas governor, Huey Long. The Court looked behind the facial neutrality of the statute, finding the tax unconstitutional upon the ground that it had been enacted for the purpose of penalizing the publishers of a . . . selected group of newspapers. Here, again, the First Amendment was violated by the efforts of government officials to penalize expressive enterprises on the basis of viewpoint.

Jameel Jaffer, Executive Director, Knight First Amendment Institute at Columbia University:

The First Amendment bars the press secretary from ejecting media organizations from briefings they would otherwise be entitled to attend simply because he doesnt like their reporting. In addition, the First and Fifth Amendments entitle media organizations that are denied access to those briefings to timely notice and an opportunity to contest their exclusions. The D.C. Circuit held as much in Sherrill v. Knight and lower courts in other circuits have reached essentially the same conclusion. Based on the facts asIunderstand them, the press secretarys actions werent defensible under these standards. He replaced a scheduled on-camera briefing that all major news organizations were scheduled to attend with an off-camera briefing that pointedly excluded organizations whose coverage President Trump had previously criticized. (Trump called Buzzfeed a failing pile of garbage, for example, after it reported on unverified allegations that Russia had compiled compromising information about him.) While excluding those disfavored media organizations, the press secretary included the days pool reporters as well as a sizable contingent of right-leaning outlets whose coverage the administrationfinds more congenial. If these are indeed the facts, as they seem to be, the press secretarys actions violated the First and Fifth Amendments.

Dawn Johnsen, Walter W. Foskett Professor of Law, Indiana University Maurer School of Law and served as Acting Assistant Attorney General heading the Office of Legal Counsel at the Department of Justice:

The Trump administrations treatment of the press, including its own false statements to the press, presents its greatest threat to our constitutional order thus far. In evaluating the constitutionality of executive action we must keep in mind that the test is not simply what a court might rule unconstitutional. In our system, much of what the president does of questionable legality will not be reviewed by the courts, or will be reviewed only under a very deferential standard. Thus, other checks are essential: by Congress, by presidential legal advisors and, as the Supreme Court often has emphasized, by a free and unrestrained press.

Lee Levine, partner in the media law firm Levine Sullivan Koch & Schulz and author of the treatise, Newsgathering and the Law:

The courts have made it reasonably clear that there is a line between simply declining to grant an interview request made by a disfavored reporter, on the one hand, and the purposeful exclusion of a credentialed news organization from a White House press briefing, on the other. The latter violates the First Amendment especially where, as in this case, the exclusion is based on a public officials dissatisfaction with the content of the news coverage hes received. From a purely litigation perspective, moreover, the Presidents and his Press Secretarys own words provide ample evidence that the decision was both content and viewpoint based. If weve learned nothing else about what the First Amendment forbids in the last fifty plus years, we know that it abhors punitive actions taken by government officials in an effort to punish critics of their official conduct, except in the cause of an extraordinarily compelling public interest. To say the least, no such interest supports this.

Burt Neuborne, Norman Dorsen Professor of Civil Liberties, New York University School of Law:

President Trumps carefully calculated bashing of the press is a leaf out of the Weimar playbook. Once a would-be tyrant succeeds in de-legitimating the independent private press, the way is open to evolving a substitute form of mass communication dominated by the state. But, while such sustained press-bashing by the President poses enormous risks to the information ecosystem needed to support democracy, it does not necessarily violate the First Amendment. To the extent Presidential press-bashing takes the form of speech calling the independent press enemies of the people, and singling out disfavored press organs, like CNN or The New York Times, for special criticism, the Presidents ugly words are protected by, not violative of, the First Amendment. On the other hand, if the President unleashed force or discriminatory law enforcement against disfavored critics, whether or not they are members of the press, that would clearly violate the First Amendment. In my opinion, the exclusion of a disfavored cable network and a hostile newspaper from a White House press briefing held in the Press Secretarys office is probably not a First Amendment violation. As I understand it, the information at the briefing was quickly made available to the excluded organs, rendering the exclusions more symbolic than real. The exclusions were petty, foolish, and, if repeated on a larger scale, dangerous; but, to me, they seemed more a calculated snub; an expression of distaste, rather than an act of censorship. Its hard for me to view a press briefing in a private office as a limited public forum triggering equal access rights when the information at issue was immediately available to the excluded press organs. The response, and there should be a response, should be a show of solidarity by the press. If the White House insists on treating press briefings as pool events, the press should send only the minimum pool representatives. That would end the process immediately.

David Schulz, partner in the media law firm Levine Sullivan Koch & Schulz, and Director, Media Freedom & Information Access Clinic, Yale Law School:

The actions on Friday restricting certain news organizations from a briefing by the White House Press Secretary raise significant concerns. The D.C. Circuit almost forty years ago held in no uncertain terms that access to White House press facilities cannot be arbitrarily denied to credentialed reporters.

Courts routinely have held that government press briefings are the type of public forum to which press access may never be restricted based on objections to the content of a journalists reporting. The Supreme Court itself has made clear that, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Fridays actions appear to be a highly dangerous and improper effort to do just that.

Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School:

Trumps most recent outrage has been to exclude CNN, The New York Times, and a few other media outlets that the President wants to cut off from inner sources of information and chooses to stigmatize with the fake news label that most appropriately fits what he and his subordinates incessantly propound.

The immediate temptation is to denounce that outrage as a clear violation of the First Amendments Free Speech and Free Press Clauses. But it isnt clear to me that those rightly distressed by these presidential actions should hang their hats entirely on the threat of taking the President to court in the name of the Constitution.

Of course Trumps petulant move, which I trust will not long outlast the adverse public reaction it has already begun to generate, is immature and borders on the dictatorial. Of course it is just the kind of step would-be autocrats typically take before adopting more direct and Draconian forms of press censorship. As Churchill once said, A free press is the unsleeping guardian of every other right that free men prize; it is the most dangerous foe of tyranny.

Today the press coverage of the White House is a vital part of that free press. Unsurprisingly, therefore, a number of federal district court and circuit court opinions identify White House press briefings and news availabilities at the offices of government officials as public forums that cannot be confined to ideologically sympathetic reporters and commentators.

But it is not entirely clear that the Supreme Court as currently composed, or with Judge Gorsuch as a ninth justice, would reach that conclusion. It might instead hold that the government platform a president and his team create for the press pool, or for the gaggle of reporters who surround the pool, can be treated by the president as an extension of the White House public relations operation, somewhere between the Voice of the White House and Lafayette Park. Indeed, with increasing frequency, the current Court has permitted what many regard as the censorship of disfavored views by framing the expression involved as a species of government speech, a dangerously malleable category that threatens to swallow First Amendment doctrines otherwise conducive to the free and open exchange of competing views.

To rest ones opposition to what Trump has done on a foundation this manipulable seems to me a legal and strategic blunder. This president violates the U.S. Constitution so frequently, so deeply, and so demonstrably, that one risks diluting the constitutional currency by pulling out the big see you in court guns each time he trashes tradition and violates the broad principles on which our representative democracy rests.

Video:On C-Span, December 16, 2016, Sean Spicer tells Politico reporter that government banning specific reporters or media outlets is what a dictatorship does.

Tuesday, February 28

10:00am SenateCommittee on Foreign Relations Iraq After Mosul(here)

10:00am House Homeland SecurityCommittee The Future of Counterterrorism: Addressing the Evolving Threat to Domestic Security(here)

2:00pm SenateCommittee on Intelligence Open Hearing(here)

2:00pm House Foreign Affairs Committee Checking Chinas Maritime Push(here)

2:00pm House Foreign Affairs Committee Issues and Opportunity in the Western Hemisphere(here)

2:00pm House Homeland SecurityCommittee The Future of FEMA: Recommendations of Former Administrators(here)

3:30pm HouseCommittee on Armed Services Department of Defense Inspector General Report Investigation on Allegations Relating to USCENTCOM Intelligence Products(here)

4:00pm SenateCommittee on Intelligence ClosedHearing(here)

Wednesday, March1

10:00am SenateCommittee on Homeland Security and Governmental Affairs The Effects of Border Insecurity and Lax Immigration Enforcement on American Communities(here)

10:00am House JudiciaryCommittee Section 702 of the Foreign Intelligence Surveillance Act Closed panel preceding open panel(here)

10:00am HouseCommittee on Armed Services Cyber Warfare in the 21st Century(here)

10:15am SenateCommittee on Armed Services Global Counterterrorism Closed (here)

2:00pm House Committee on Oversight and Government Reform VA: Path to Reform(here)

3:30pm HouseCommittee on Armed Services US Ground Force Capability and Modernization Challenges in Eastern Europe(here)

TBD SenateJudiciaryCommittee Business Meeting (incl. continue

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9 Top First Amendment Experts React to White House Press Briefing Ban on CNN, NYT, others - Just Security

First Amendment in danger | Opinion | Eugene, Oregon – The Register-Guard

Its no longer hyperbole or angry overstatement to say that Donald Trump and his supporters are leading the United States into a period of undeniable fascism. Regardless of your party affiliation, you should be worried and resist a leader who attacks the media solely because they disagree with his actions. Describing the media as the enemy of the people is nearly unimaginable. Banning The New York Times and CNN from news briefings is a brazen form of controlling information.

Read history and be warned; this is how fascism begins. If you are a Trump supporter, please pressure your elected officials to tell the White House to honor the First Amendment. Otherwise it could well be your expression thats throttled next.

John Costello

Eugene

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First Amendment in danger | Opinion | Eugene, Oregon - The Register-Guard

New gun legislation violates First Amendment – DesMoinesRegister.com

Lauren Holst, Cedar Falls, Letter to the Editor 5:40 p.m. CT Feb. 27, 2017

Handguns at a shooting range in Boone, Iowa, in January 2016.(Photo: William Petroski/Des Moines Register)Buy Photo

Iowa Sen. Jake Chapman, R-Adel,has found yet another creative way for more Iowans, children and adults alike, to be shot.

A long list of professionals licensed by the state should take note.Chapman has just introduced Senate File 254, A person licensed to practice a profession under this (Code) chapter (147) shall not inquire about or otherwise request information about a patients or clients ownership or possession of firearms.

We should all be concerned about this foolhardy bill that does nothing to support Americans Second Amendment right to a well-regulated militia. It is time voters roar a reminder that the preamble to the Constitution makes clear the purpose of government includes the responsibility to insure domestic tranquility and promote the general welfare. Also, the First Amendment is explicitly clear that Congress shall make no law abridging the freedom of speech. Apparently Chapmans budgetary concerns do not extend to using our tax dollars to entangle Iowans in lawsuits on constitutionality.

All Iowans and, most directly, the following professions are affected: physician and surgeon, podiatric physician, osteopathic physician and surgeon, physician assistant, psychologist, chiropractor, nurse, dentist, dental hygienist, dental assistant, optometrist, speech pathologist, audiologist, pharmacist, physical therapist, physical therapist assistant, occupational therapist, occupational therapy assistant, orthotist, prosthetist, pedorthist, respiratory care practitioner, practitioner of cosmetology arts and sciences, practitioner of barbering, funeral director, dietitian, marital and family therapist, mental health counselor, respiratory care and polysomnography practitioner, polysomnographic technologist, social worker, massage therapist, athletic trainer, acupuncturist, nursing home administrator, hearing aid specialist, or sign language interpreter or transliterator.

What kind of society are our elected officials and the voters of Adel creating for us? And why?

Lauren Holst, Cedar Falls

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New gun legislation violates First Amendment - DesMoinesRegister.com


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