Monthly Archives: March 2017

San Francisco The Electronic Frontier Foundation (EFF) will urge an appeals court Wednesday to find that the FBI violates the First Amendment when it unilaterally gags recipients of national security letters (NSLs), and the law should therefore be found unconstitutional. The hearing is set for Wednesday, March 22, at 1:30pm in San Francisco.

EFF represents two communications service providersCREDO Mobile and Cloudflarethat were restrained for years from speaking about the NSLs they received, including even acknowledging that they had received any NSLs. Early Monday, just days before the hearing, the FBI finally conceded that EFF could reveal that these two companies were fighting a total of five NSLs.

CREDO and Cloudflare have fought for years to publicly disclose their roles in battling NSL gag orders. Both companies won the ability to talk about some of the NSLs they had received several months ago, but Mondays decision by the FBI allows them to acknowledge all the NSLs at issue in this case.

On Wednesday, EFF Staff Attorney Andrew Crocker will tell the United States Court of Appeals for the Ninth Circuit that these gags are unconstitutional restrictions on CREDO and Cloudflares free speech and that the FBIs belated decision to lift some of the gags only underscores why judicial oversight is needed in every case. The gag orders barred these companies from participating in discussion and debate about government use of NSLseven as Congress was debating changes to the NSL statute in 2015.

What: In re National Security Letters

Who: EFF Staff Attorney Andrew Crocker

Date: March 22 1:30 pm

Where: Courtroom 3, 3rd Floor Room 307 U.S. Court of Appeals for the Ninth Circuit James R. Browning U.S. Courthouse 95 Seventh Street San Francisco, CA 94103

For the FBI notice allowing the companies to identify themselves: https://www.eff.org/document/notice-regarding-public-identification-nsl-recipients

For more on this case: https://www.eff.org/issues/national-security-letters

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Hearing Wednesday: National Security Letters Violate the First Amendment - EFF

Judge Alex Kozinski, of the 9th U.S. Circuit Court of Appeals, looks on during a House Judiciary Committee hearing on Thursday in Washington.

Justin Sullivan/Getty Images

LateFridayafternoon, when few were paying attention, one of the smartest judges on the 9th U.S. Circuit Court of Appeals went out of his way to throw Donald Trump a lifeline. In a surprising and late dissent to the 9th Circuits ruling on Trumps first travel ban, Alex Kozinski argued that it would violate the First Amendment to take Trumps campaign statements evincing anti-Muslim animus seriously (or literally). That claim may help save the administrations new executive order banning travel from six predominantly Muslim countries. Its an argument that just might attract the courts conservatives, including the soon-to-be-confirmed Neil Gorsuch, and lead them to reject constitutional challenges to the new executive order. And that would be a shame, not just for this case, but for all cases raising claims of government bias.

Trump is the rare candidate who speaks his mind, and he told us why he wanted to keep Muslims out of the U.S.

The history here is a bit tortured, but it is important to recount because it shows how unusual Kozinskis actions were in reaching out to offer his opinion on the constitutionality of the second travel executive order.

In January, Trump introduced the first executive order banning travel from seven predominantly Muslim countries. Washington state, Minnesota, and others brought challenges, arguing that the ban violated the due process rights of certain people who wished to enter the country and that it violated the First Amendments Establishment Clause, as it was based on anti-Muslim bias. Trump lost to Washington state in a federal district court,which issued an order putting the first executive order on hold. A three-judge panel in the 9th Circuit refused to stay the trial courts order. The appeals court agreed unanimously that Trump was likely to lose on the due process argument, and it declined to decide the Establishment Clause claim.

The entire 9th Circuit was in the process of considering whether or not to hear the case when the Trump administration withdrew its appeal in conjunction with withdrawing the first executive order andissuing the second one. A 9th Circuit judge had requested that the entire circuit nonetheless vote on whether to vacate the three-judge panels earlier decision finding a due process violation.Vacating the opinion would erase it as precedent for other courts to rely on. On Wednesday, the entire 9th Circuit voted not to vacate the earlier decision; Judge Jay Bybee and four other conservative judges (including Kozinski) dissented. Bybees main point was that the trial court likely got the due process claim wrong. That order said that more opinions from 9th Circuit judges might follow.

Alsoon Wednesday, a federal district court in Hawaii issued an order holding that the second travel ban could not be enforced because it violated the Establishment Clause. The trial judge recognized that in figuring out whether the government had engaged in religious animus, it could not engage in psychoanalysis of government officials. But the court said the government need not fear the difficultly of uncovering motive, because Trump had made plenty of anti-Muslim statements on the campaign trail and elsewhere. The court wrote: For instance, there is nothing veiled about this press release: Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States. A federal court in Maryland soon issued a similar order citing similar statements.

Two days after all this activity, as everyone focused on new cases out of Hawaii and Maryland, Judge Kozinski added a new dissent to the earlier 9th Circuit order, addressed primarily to the Establishment Clause issuethe issue that the first 9th Circuit opinion had declined to address. This was highly unusual, and two other judges wrote that it was inappropriate for Kozinski to do so because the matter was not before the court. In response, Kozinski wrote that his colleagues effort to muzzle criticism of an egregiously wrong panel opinion betrays their insecurity about the opinions legal analysis. He said the Hawaii court relied on the first 9th Circuit order, and that made it fair game for him to weigh in.

In a kind of prebuttal to any eventual appeal of the Hawaii decision, Kozinski argued it was inappropriate for courts deciding Establishment Clause claims to look at the campaign statements of those who would become elected officials and enforce the laws. He claimed reliance on such statements to prove discrimination was folly because they are unreliable: Candidates say many things on the campaign trail; they are often contradictory or inflammatory. No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlubs only intention is to get elected.

Kozinski went still further, suggesting such reliance to prove discriminatory motive runs afoul of the First Amendment rights of candidates to engage in political speech. Quoting from the 2014 Supreme Court opinion by Chief Justice John Roberts in McCutcheon v. FEC that struck down some federal campaign contribution limits, Kozinski said the reliance on campaign statements will chill campaign speech, despite the fact that our most basic free speech principles have their fullest and most urgent application precisely to the conduct of campaigns for political office. He imagined eager research assistants mining the archives of campaign statements, engaged in a kind of evidentiary snark hunt.

This is just the kind of argument that the Supreme Courts conservatives like. Kozinski, who clerked for Justice Anthony Kennedy many decades ago, knows this argument could resonate with the jurist who wrote the controversial 2010 opinion in Citizens United v. FEC that freed corporate money in candidate elections and extolled the value of free speech. If a case raising these issues gets to the Supreme Court after Judge Neil Gorsuch is confirmed, it will likely resonate with him, too.Theres every reason to believe he will be in the same First Amendment camp as Kennedy and the other conservatives.

But Kozinskis argument is a bad one on the merits, and it is likely to have negative consequences. Imagine a candidate for local prosecutor who promises to keep black people off juries. Should we not be allowed to consider such statements as proof of racial bias in jury selection out of fear of chilling campaign speech?

Top Comment

So the logic here is essentially, correct me if I'm wrong . . . 1) Trump announced his intention to discriminate against Muslims as a candidate -- but this was only to get elected, he actually loves Muslims. More...

Its difficult to win cases requiring proof of discriminatory intent precisely because politicians are usually circumspect when they have discriminatory views. Trump is the rare candidate who speaks his mind, and he told us why he wanted to keep Muslims out of the U.S.

Candidates tend to keep their promises. If voters can rely on discriminatory statements in deciding who to vote for, so should those who later challenge the discrimination that flows after the season of campaign promises. Candidates who make these statements are not poor shlubs. They are being held to account for what they say.

Read more:
Does the First Amendment Protect Trump's Travel Ban? - Slate Magazine

This editorial cartoon provided by Jack Ohman of The Sacramento Bee in March 2017 shows his editorial cartoon made for 2017's Sunshine Week. In 2005, the American Society of Newspaper Editors launched the first national Sunshine Week, a celebration of access to public information that has been held every year since to coincide with the March 16 birthday of James Madison, father of the U.S. Constitution and a key advocate of the Bill of Rights.(Photo: Jack Ohman, AP)

Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us." -William O. Douglas

We couldnt agree more.

On April 13 well share the tools and strategies we use to request public information both in Colorado and from federal agencies. Well open up our reporting processes, including how to obtain documents using the Colorado Open Records Act and the Freedom of Information Act.

Well let you know what you can expect and in what time frame. And well coach you on how to find data that others have already requested.

We believe our government should remain as close to the people as possible. Access tomeeting minutes, agendas, budgets or your school boards growth plan helps to provide accountability. And for you to provide feedback to elected officials about whats important to you.

It is not just the press that should seek to monitor government. You too can work for accountability and transparency, be it in sharing a tip or knowing where to go to find public data.

We are living at a critical time. Our access is being limited, whether its in data disappearing from federal websites or in agencies being curtailed on social media.

First Amendment rights are not given. They are inherent. Learn more about how to exercise them. Join us April 13.

When: April 13. 6:30-8 p.m.

Where: Coloradoan community room

What: As the term alternative facts has entered our lexicon, its important you know what goes on in local and national government. And how to find information that belongs to you.

Tickets: $10, includes beer/soft drink of your choice and snacks. Register here.

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April Brews & News: The First Amendment & You - The Coloradoan

A clown resembling President Donald Trump stands in a parking lot surrounded by classic cars, Doberman Pinschers and gangsters. Rapper and hip-hop artist Snoop Dogg raises a black gun to the clowns head. He pulls the trigger and a flag with the word BANG unfurls from the barrel.

On March 12, rapper and hip-hop artist Snoop Dogg released a controversial music video for his new song Lavender in collaboration with fellow artists BADBADNOTGOOD and Kaytranada in which Snoop does this: He simulates the shooting of President Trump.

The video depicts a society wherein everyone, except Snoop himself, is a clown. The narrative follows a father who is pulled over by a donut-eating police officer smoking marijuana on the drive to work. The police officer proceeds to shoot the man in his car immediately after seeing a toy squirt gun, belonging to the mans son, in his possession. Meanwhile, a civilian observer films the whole encounter on his cell phone.

The song references the issue of police brutality, especially against African American men. Snoop warns that if the problem is not addressed, drastic measures must then be taken.

And the night will fall, this is death to you all The final call, see reparations will be tooken

It is not uncommon for music to hyperbolize violence to this degree. His figurative language is not to be taken literally. It is incredibly unlikely that Snoop is planning to kill every police officer, or even every officer who has committed an offense gilded in bias or bigotry. Yet the sequence in which Snoop pulls the trigger on clown president Ronald Klump has severely angered the president and stirred speculation into the legality of the reference.

Soon after the videos release, Trumps lawyer revealed that the president is expecting an apology, according to CNN. Trump later tweeted suggesting that Snoop would have experienced jail time during Obamas administration.

Snoop responded with an Instagram video in which he says, Ive got nothing to say, mate, in an Australian accent, possibly poking fun at the outrage over his implementation of his first amendment rights. Snoop can wipe his brow, however, because he is in the clear; his parody is protected under the Bill of Rights. Wouldnt you know?!

"When I be putting shit out, I dont ever expect or look for a reaction. I just put it out because I feel like its something thats missing, Snoop said in Billboard. Any time I drop something, Im trying to fill in a void."

Granted, Snoops criticism is a tad heavy-handed, but the message rings loud and clear: Trump is a clown, a person who has a hard time garnering respect. Snoop is allowed to believe that message and to share it with whomever he cares to.

The president of a democratic republic being seemingly unable to take criticism from the people he governs is incredibly problematic for his image. Furthermore, his previous attempts to refute the reporting and interpretations of the media and citizens have in fact made him look silly. Trying to discredit the media as the enemy of the people for spewing falsehoods when his administration is spewing their own alternative facts has promoted overwhelming notions of hypocrisy.

Negative opinions are a staple that come with the position of president, and they cannot be ceased if our rights remain intact. That being said, Trump should either learn to laugh at himself or change his ways. Jail time is not an option for Snoop not for the time being at least.

This is the opinion of Jennifer Lee, a freshman communication studies major from Los Angeles, California. Tweet comments to @LALoyolan, or email csontag@theloyolan.com.

Excerpt from:
Snoop Dogg's Lavender video exemplifies power of First Amendment - Los Angeles Loyolan (subscription)

HILLEL ITALIE, AP National Writer 12:57 p.m. ET March 17, 2017

In this Wednesday, Feb. 22, 2017 photo, reporters raise their hands as White House Press Secretary Sean Spicer takes questions during a daily briefing in the Brady Press Briefing Room of the White House in Washington. In 2017, journalism marks its annual Sunshine Week at an extraordinary moment in the relationship between the presidency and the press. (AP Photo/Pablo Martinez Monsivais)(Photo: Pablo Martinez Monsivais, AP)

NEW YORK (AP) Whenever Donald Trump fumes about "fake news" or labels the press "the enemy of the people," First Amendment scholar David L. Hudson Jr. hears echoes of other presidents but a breadth and tone that are entirely new.

Trump may not know it, but it was Thomas Jefferson who once said, "Nothing can now be believed which is seen in a newspaper," said Hudson, a law professor at Vanderbilt University.

"But what's unusual with Trump is the pattern of disparagement and condemnation of virtually the entire press corps. We've had presidents who were embittered and hated some of the press Richard Nixon comes to mind. ... But I can't think of a situation where you have this rat-a-tat attack on the press on virtually a daily basis, for the evident purpose of discrediting it."

Journalism marks its annual Sunshine Week, which draws attention to the media's role in advocating for government transparency, at an extraordinary moment in the relationship between the presidency and the press.

First Amendment advocates call the Trump administration the most hostile to the press and free expression in memory. In words and actions, they say, Trump and his administration have threatened democratic principles and the general spirit of a free society: The demonizing of the media and emphatic repetition of falsehoods. Fanciful scenarios of voter fraud and scorn for dissent. The refusal to show Trump's tax returns and the removal of information from government websites.

And in that battle with the Trump administration, the media do not have unqualified public support.

FILE - In this March 4, 1969 file photo, President Richard Nixon holds a televised news conference in the East Room of the White House in Washington, outlining his recent five-nation visit to Europe. First Amendment scholar David L. Hudson Jr. says, " what's unusual with Trump is the pattern of disparagement and condemnation of virtually the entire press corps. We've had presidents who were embittered and hated some of the press _ Richard Nixon comes to mind. Teddy Roosevelt had a reporter jailed for purportedly lying about the Panama Canal. But I can't think of a situation where you have this rat-a-tat attack on the press on virtually a daily basis, for the evident purpose of discrediting it." (AP Photo)(Photo: Anonymous, AP)

According to a recent Pew survey, nearly 90 percent of respondents favored fair and open elections while more than 80 percent value the system of government checks and balances. But around two-thirds called it vital for the media to have the right to criticize government leaders; only half of Republicans were in support. A recent Quinnipiac University poll found that Americans by a margin of 53-37 trust the media over Trump to tell the truth about important issues; among Republicans, 78 percent favored Trump.

"We're clearly in a particularly polarizing moment, although this is something we've been building to for a very long time," says Kyle Pope, editor in chief and publisher of the Columbia Journalism Review, a leading news and commentary source for journalism.

"I think one of the mistakes the press made is we became perceived as part of the establishment. And I think one of the silver linings of the moment we're in is that we have a renewed sense of what our mission is and where we stand in the pecking order, and that is on the outside, where we belong."

Hudson, ombudsman of the Newseum's First Amendment Center, says it's hard to guess whether Trump is serious or "bloviating" when he disparages free expression. He noted Trump's comments in November saying that flag burners should be jailed and wondered if the president knew such behavior was deemed protected by the Constitution (in a 1989 Supreme Court ruling supported by a justice Trump says he admires, the late Antonin Scalia).

Hudson also worries about a range of possible trends, notably the withholding of information and a general culture of secrecy that could "close a lot of doors." But he did have praise for Trump's pick to replace Scalia on the court, Neil Gorsuch, saying that he has "showed sensitivity" to First Amendment issues. And free speech advocates say the press, at least on legal issues, is well positioned to withstand Trump.

FILE - In this Sunday, Feb. 26, 2017 file photo, demonstrators stand with U.S. flags and signs in a show of solidarity with the press in front of The New York Times building in New York. The White House banned several major news outlets, including The New York Times and CNN, from an off-camera briefing, known as a "press gaggle," two days earlier. (AP Photo/Kathy Willens)(Photo: Kathy Willens, AP)

"We have a really robust First Amendment and have a lot of protections in place," says Kelly McBride, vice president of The Poynter Institute, a nonprofit journalism education center based in St. Petersburg, Florida. "That doesn't mean that attempts won't be made. But when you compare our country to what journalists face around the world, I still think the U.S. is one of the safest places for a journalist to criticize the government."

The First Amendment, which states in part that "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," is far broader and more uniquely American than when ratified in 1791.

At the time, free expression was based on the legal writings of Britain's Sir William Blackstone. The First Amendment protected against prior restraint, but not against lawsuits once something was spoken or published. Truth was not a defense against libel and the burden of proof was on the defendant, not the plaintiff. And the Bill of Rights applied to the federal government, but not to individual states, which could legislate as they pleased.

The most important breakthrough of recent times, and the foundation for many protections now, came with the New York Times Co. v. Sullivan case of 1964.

Editorial:McNally, Harwell proposal makes Sunshine Week brighter

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Jack McElroy:Real news sometimes demands anonymity

The Times had printed an advertisement in 1960 by supporters of the Rev. Martin Luther King Jr. that noted King had been arrested numerous times and condemned "Southern violators of the Constitution." The public safety commissioner of Montgomery, Alabama, L. B. Sullivan sued for libel. He was not mentioned by name in the ad, but he claimed that allegations against the police also defamed him. After a state court awarded Sullivan $500,000, the Times appealed to the Supreme Court.

Some information in the ad was indeed wrong, such as the number of times King was arrested, but the Supreme Court decided unanimously for the Times. In words still widely quoted, Justice William Brennan wrote that "debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." He added that a libel plaintiff must prove "that the statement was made ... with knowledge that it was false or with reckless disregard of whether it was false or not."

"It was breathtakingly new," First Amendment attorney Floyd Abrams said of Brennan's ruling. "It was an extraordinary step the court was taking."

Sunshine Week is March 12-18, 2017(Photo: American Society of News Editors)

But freedom of speech has long been championed more in theory than in reality. Abraham Lincoln's administration shut down hundreds of newspapers during the Civil War. Woodrow Wilson championed the people's "indisputable right to criticize their own public officials," but also signed legislation during World War I making it a crime to "utter, print, write, or publish" anything "disloyal" or "profane" about the federal government. During the administration of President Barack Obama, who had taught constitutional law at the University of Chicago, the Wilson-era Espionage Act was used to obtain emails and phone records of reporters and threaten James Risen of The New York Times with jail.

Predicting what Trump might do is as difficult as following his views on many issues. He often changes his mind, and contradicts himself.

During the campaign last year, he spoke of changing the libel laws to make it easier to sue the media. But shortly after the election, he seemed to reverse himself. He has said he is a "tremendous believer of the freedom of the press," but has worried that "Our press is allowed to say whatever they want and get away with it."

Trump's disparagement of the media has been contradicted by high officials in his administration. Secretary of Defense James Mattis said recently that he did not have "any issues with the press." Vice President Mike Pence was an Indiana congressman when he helped sponsor legislation (which never passed) in 2005 that would protect reporters from being imprisoned by federal courts. In early March, he spoke at a prominent gathering of Washington journalists, the Gridiron Club and Foundation dinner.

"Be assured that while we will have our differences and I promise the members of the Fourth Estate that you will almost always know when we have them President Trump and I support the freedom of the press enshrined in the First Amendment," he said, while adding that "too often stories make page one and drive news with just too little respect for the people who are affected or involved."

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Advocates say First Amendment can withstand Trump attacks - Knoxville News Sentinel