Monthly Archives: June 2017

Last week, I blogged about whether the First Amendment restricts President Trumps ability to block users from his @RealDonaldTrump Twitter account. The Knight First Amendment Institute said yes. I said probably not, because I thought Trumps actions with regard to @RealDonaldTrump an account that (unlike @POTUS) precedes the Trump presidency and that conveys Trumps individual voice would likely be viewed as not government action but rather his own individual decisions and thus not bound by the First Amendment. I said (and still think) that its a close call, but I noted that some cases had suggested that even speech on government matters by high government officials may be seen as their own speech, rather than the governments, and I thought this was so here.

Jameel Jaffer from the Knight Institute was kind enough to respond. Ill quote his entire response and then offer a few thoughts of my own. (Amanda Shanor (Take Care) and Robert Loeb (Lawfare) have posted analyses that are similar to the Knight Institutes, though more detailed and worth reading.)

First, Jaffers thought:

Does the First Amendment Restrict Trump on Twitter?

The First Amendment binds President Trump when he acts in his official capacity. How do we know, though, when hes acting in his official capacity, rather than his personal one?

Earlier this week, the Knight Institute sent President Trump a letter on behalf of people whom President Trump had blocked from his most-followed Twitter account, @realDonaldTrump. We argued that the account constitutes a designated public forum under the First Amendment and that consequently President Trump is barred from blocking people from it simply because they ridiculed or disagreed with him. But why does the First Amendment apply at all, one might ask, to @realDonaldTrump, an account that Trump opened long before he became president and that could be understood as the personal counterpart to @POTUS, the official presidential account?

Professor Volokh argues (tentatively) that @realDonaldTrump is the megaphone of Trump-the-man, not Trumpthe-president. Government officials, he points out, can operate in two different capacities on behalf of the government and expressing their own views. He writes that Trump opened @realDonaldTrump before he became president, that the account is understood as expressing [Trumps] own views apparently in his own words and with his own typos, and that the account does not express the institutional position[s] of the executive branch. He distinguishes @realDonaldTrump from @POTUS, which has a handle more focused on the presidents governmental role. He states that the question falls near a borderline that hasnt been mapped in detail, but he concludes (again, tentatively) that @realDonaldTrump is not a public forum.

Its of course true that public officials sometimes act in their personal capacities. A president probably has less latitude to act in a personal capacity than, say, a city councilor does, but even a presidents statements will sometimes be attributable to the president-as-citizen rather than the president-as-president. If President Trump established a private Facebook page to communicate with business acquaintances about golf, no one would contend that the First Amendment barred him from excluding people from the group based on their views.

But wherever the line between personal accounts and officials ones, @realDonaldTrump must be on the official side of it. Here are the facts, as I understand them:

If these are the facts, as I think they are, I dont think @realDonaldTrump can fairly be characterized as a project of Trump-the-man, even if it began as his project. Whatever the account once was, its now an important channel through which Trump-the-president communicates with Americans about his presidency. Its not a personal account; its an official one and consequently its an account to which the First Amendment applies.

Heres my thinking:

1. That Trump is talking about government-related matters to the public, including what he is doing and what he will do, doesnt make it government speech. As I mentioned in my earlier post, when an incumbent running for reelection gives a campaign speech, he is not acting on behalf of the government. Likewise, even Supreme Court justices who believe that the government may not endorse religion think that its fine for government officials to express religious views in their speeches here, for instance, is the view of Justices John Paul Stevens and Ruth Bader Ginsburg in Van Orden v. Perry:

Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.

When I put up posts, or moderate comments, Im not acting on behalf of the state of California (even though blogging is part of my job, for which I get some modest credit in my job evaluations, much as professors who write op-eds are given some credit for such service to the public); likewise for Trump. To be sure, my powers stemming from my government job are small, and Trumps powers are vast. But the principle strikes me as quite similar.

For whatever its worth, the only case that has closely dealt with this, Davison v. Plowman, took the view that a government official may be speaking as a citizen and not as the government, even when he is mak[ing] public statements though social media to constituents though I should acknowledge that this is just a federal trial court case and not a binding precedent.

2. Sean Spicers statement that @RealDonaldTrump tweets are official statements doesnt count for much here, I think I dont think that a press secretary can bind the president, the executive branch or the judiciary on a legal question such as this.

3. That courts have given the presidents tweets weight in determining his motivations is not, I think, relevant: Indeed, the U.S. Court of Appeals for the 4th Circuits decision, cited by the Knight Institute, cited a tweet from when Trump was a candidate that certainly couldnt have been government speech. The theory behind the 4th Circuits use of the tweet is that Trumps motivations were relevant to whether he had a discriminatory intent at the time he created the policy, and for that the 4th Circuit didnt care whether the tweet was an official statement or just his views in 2015 as a private citizen.

4. To the extent that the presidents aides regularly write tweets in his name (not certain, and the cited source is from the time when the president was just a candidate), the matter might be different, though that is not entirely clear.

* * *

While Im talking about this, let me briefly note one other post about this, from Noah Feldman (Bloomberg). Feldman focuses on the fact that Twitter is a privately owned platform and concludes that its highly likely that there is no state action when blocking the followers takes place on such a private platform.

I dont think thats quite the right inquiry, though: If, for instance, a government agency rents space in a privately owned building to hold a public meeting and then lets citizens speak during a public comment portion of the meeting, it has created a limited public forum in which it cant discriminate based on viewpoint.

The same is true if a government agency (and not just a single politician) runs a Facebook page and allows citizens to comment there that would indeed be a limited public forum, because its government-run even if it uses private property. (See the Davison cases cited in my original post.) Likewise with Twitter, the question is whether Trump is acting as Trump-the-man and not Trump-the-government-official in running the Twitter feed, not whether Twitter is a state actor.

Go here to read the rest:
More on the First Amendment and @RealDonaldTrump - The ... - Washington Post

If nothing else, President Trump is putting it in stark, clear terms for us. He is out to destroy the independent press in the United States and replace it with some sort of information system that is subservient to him personally and his version of reality.

Trump continued his deliberate, ongoing assault on the free press Tuesday in yet another early-morning tweet:The Fake News Media has never been so wrong or so dirty. Purposely incorrect stories and phony sources to meet their agenda of hate. Sad!

This nonstop campaign to convince people that the independent press is deliberately making up news puts things to a very simple test. Either:

His assertions that a substantial amount (or the entirety?) of normal, mainstream coverage is somehow deliberately fake is not the utterance of a healthy person. It does not represent a connection to reality and/or it represents an attempt to substitute propaganda for information. He cant make it any plainer. Dont scoff. There is apparently already an audience and appetite for Trumps version of events, whatever that version is on any given day. And Trump is using the presidency of the United States to undermine whats left of a fact-based reality.

Dont think this matters? Then enjoy becoming the subject in the famous Asch Experiment. And heres another test for you: Have you tried recently having a productive conversation with a Trump supporter who is operating off a completely different fact set? How did that go?

When the propaganda model replaces the free press model, you can either go along, or it is you who will be judged insane.

Go here to see the original:
President Trump hates the First Amendment. He thinks it's sad. - Washington Post

Yesterday, Indian River County School District Superintendent Dr. Mark Rendell reversed Vero Beach High Schools decision to disqualify PLF client, J.P. Krause, from the race for senior class president. After careful review of all the circumstances surrounding the Vero Beach high School Student Government Association Senior Class President election, I have decided to overturn the principals decisions regarding disqualifying candidates from the election, and will accept the original election results, the Superintendent said Tuesday afternoon.

While this is a win for our clientand the voters of Vero Beach High Schoolit doesnt go far enough. JP is entitled to a full vindication of his First Amendment rights. He still has a permanent mark on his disciplinary recordthe allegation that he harassed his opponent. The school district has refused so far to remove it from his record, claiming that this is an issue that is separate from his speech. How the district has come to this result though, is puzzling.

JPs speech in classand his subsequent punishment are directly related. It should be clear to any observer that JPs speech was political satire-speech that is protected by the First Amendment. The First Amendment wasnt designed to protect feelings, but to prevent the government from censoring views that it disagrees with. Thats just what happened here. The Districts harassment policy has been used to punish JP for his speecha speech that the school disagreed with. While under certain circumstances schools have the right to censor student speech, thats not the case here. Courts have ruled that school policies that go too far to censor speech are unconstitutional.

The policys broad ban on verbal conduct is unconstitutional, both on its face and as applied here. We know it is unconstitutional, because a U.S. Supreme Court justice has said the same about a similar school policy. In Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001), the U.S. Third Circuit Court of Appeals, in an opinion written by then Judge, now Justice Samuel Alito, struck down a school districts harassment policy as overbroad, holding that even speech that is defined as harassing may enjoy First Amendment protection.

In Saxe, Judge Alito wrote that the schools harassment policy improperly swept in those simple acts of teasing and name-calling that had previously been held to be protected by the First Amendment. The policys language in that case barred speech that has the purpose or effect of interfering with educational performance or creating a hostile environment. It ignored the constitutional requirement that a school must reasonably believe that speech will cause actual material disruption before prohibiting it. Judge Alito explained that even if the speech created a hostile environment that intrudes upon . . . the rights of other students, it is not enough that the speech is merely offensive to some listener, because there is no categorical harassment exception to the First Amendments Free Speech Clause.

The schools harassment policylike the one at issue herehad no threshold requirement of pervasiveness or severity, and therefore it could cover any speech about someone the content of which could offend someone. This could bar core political and religious speech (like J.P.s political speech here). Provided such speech does not pose a realistic threat of substantial disruption, the Third Circuit held, it is within a students First Amendment rights.

Likewise here, the school has used this harassment policy for a problem that doesnt exist. Much like a square peg doesnt fit in a round hole, the arbitrary use of a school district harassment policy to punish a student for constitutionally protected speech is wrong, misguided, and sends a message to other students that their speech might be censored as well. This creates a chilling effect on campus, stifling student speech. Students should be free to learn and discuss ideas, especially ideas of public importance, absent fear of school censorship. The punishment of JPs speech has illustrated that the school is not committed to training its students to meet the challengesof adulthood and has sent a message to other students that their speech might be arbitrarily censored too.

The loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). In other words, it doesnt matter that the school district reinstated JP. It still gave him detention and wrongly left the charge on his record that he harassed another student. He didnt. Accordingly, the threat that it will punish him in the future for similar speech is still there. Until he is ensured that he wont be punished for political satire, his speech rights are being harmed irreparably, which is why PLF wont stop until JPs rights are fully restored.

More:
Despite reversal, Vero Beach High School still in violation of the First Amendment - Pacific Legal Foundation (PLF) (press release) (blog)

BEAVER -- When Beaver Area School District administrators instructed a student to remove elements of Christian prayer from her high school commencement address, they were just trying to comply with federal law.

But the student and her family didnt see it that way.

Graduating senior Moriah Bridges had structured her graduation remarks as a prayer, intended to mesh well wishes for her classmates with her Christian faith.

Per district policy, Beavers high school principal and superintendent both reviewed Bridges remarks days before the ceremony. They asked the senior to revise her speech after the districts solicitor advised that allowing a student to lead prayer during commencement violated the U.S. Constitution's Establishment Clause, which forbids the government from promoting a specific religion.

Bridges alleges the school district violated her First Amendment rights and has enlisted First Liberty Institute, a Texas-based religious freedom advocacy group, to urge the district to reconsider its stance.

The controversy has generated national attention. As of Wednesday afternoon, the story had been blasted across both localtelevisionoutlets and Fox News.

Bridges and her mother contacted First Liberty Institute after the ceremony to ask about their rights and because they were scared and worried about recurring situations during subsequent graduation ceremonies, First Liberty attorney Jeremy Dys said.

Dys, who disagrees with the school districts interpretation of the law, sent the district a letter on June 13 asserting that Bridges religious remarks do not violate the Establishment Clause because they represent her own private speech, and not the districts views.

The letter claims the district committed viewpoint discrimination and requests that the district admit wrongdoing and meet with First Liberty attorneys to establish a policy that will prevent students religious freedom from being violated again.

The organization had not received any response as of Wednesday afternoon, Dys said.

Superintendent Carrie Rowe defended the decision in a press release posted on the districts website.

Beavers solicitor counseled Rowe that federal law prohibits student-led prayer during graduation ceremonies, according to the release. The solicitor backed her reasoning with a 2000 Supreme Court ruling involving Sante Fe Independent School District, which upheld that "school officials may not permit a teacher, faculty member, member of the clergy, or student to deliver any sort of prayer, invocation, or benediction at public school-sponsored events, including graduations."

Students who speak at graduation, including the valedictorian and class president, know that the District will review their remarks in advance, and the District assumes responsibility for the content, according to Rowes release. In Moriahs case, the District could not approve a speech written as a prayer, but did approve a second version that she submitted.

Although I can understand why this restriction might upset members of the community, I cannot choose which laws to follow, Rowes release said.

In situations like these, whether a student offering prayer during a graduation address violates the Constitution hinges on whether the school district reviews the speech, said Charles Haynes, vice president of the Newseum Institute. Haynes also serves as founding director of the Religious Freedom Center and is a senior scholar at the First Amendment Center.

Generally, a school district is not considered responsible for a students graduation remarks as long as the student crafts her thoughts on her own without any district input or oversight.

When the school reviews the address, the responsibility shifts, Haynes said. If school officials approved the religious speech in the students graduation remarks, the school then becomes responsible for promoting religious speech and violating the First Amendment, he said.

Current laws forbid public schools from allowing prayer at graduation -- student-led or otherwise, Haynes said. Even if the school includes a disclaimer specifying that the students views are her own, the school can still be considered legally responsible for speech it has reviewed.

Theres no ambiguity in the law, he said.

If public school officials violate the First Amendment, they make the district vulnerable to lawsuits, Haynes said. Beyond potentially expensive litigation, the overarching concern is the districts fundamental responsibility to protect the freedom of conscience for its students, he said.

That is the bigger concern. The school is there to protect freedom of conscience and religious liberty for everybody, Haynes said, whether the student is Christian, a nonbeliever, Jewish or Muslim.

Read the original post:
Beaver Area graduate alleges First Amendment violation | Education ... - Timesonline.com