Monthly Archives: June 2017

By Win McNamee/Getty.

Even Donald Trump, who plans to stop tweeting approximately never and may even live-tweet during former F.B.I. director James Comeys testimony on Thursday like its an episode of The Bachelor, doesnt want everyone following him on Twitter. Like any half-sane person on the social-media platform, he has blocked a number of people from seeing or responding to his tweets. Unlike the rest of us, however, Trump is also president of the United States, and, as White House press secretary Sean Spicer said on Tuesday, Trump tweets should be considered official statements by the president. Which means that Trump may be violating the First Amendment rights of the people he has blocked.

Thats the argument being made by lawyers for two Twitter users who were blocked by the president, closing off access to what they say he is using as an official, public platform. This Twitter account operates as a designated public forum for First Amendment purposes, and accordingly the viewpoint-based blocking of our clients is unconstitutional, nonprofit organization Knight First Amendment Institute said in a letter to Trump on Tuesday. We ask that you unblock them and any others who have been blocked for similar reasons. Some legal experts are more dubious. Ken White, a First Amendment expert and former assistant U.S. attorney, says he finds the case ridiculous. Theres also an argument to be made that Trump is merely behaving within the terms of service of Twitter, a privately held company.

Whatever the merits of the case, it is undeniable that Twitter has become a central feature of the Trump presidency, and one of its greatest vulnerabilities. White House aides and allies have implored Trump to stop tweeting, to vet his posts with a lawyer first, or to at least limit what has become a deeply self-destructive habit. The tweeting makes everybody crazy, Trumps close friend Tom Barrack, the chairman of Colony Northstar, said at a Bloomberg conference this week. Theres just no gain in doing it.

In the past few days alone, he has attacked the London mayor, Sadiq Khan, after a terrorist attack that left seven dead, and appeared to undermine his own legal teams efforts to defend his immigration executive order before the Supreme Court, using a tweet to call it a TRAVEL BAN and drawing a remarkable rebuke from Kellyanne Conways husband, George, who noted on Twitter that the presidents online posts may have sabotaged his own case. Voters want Trump to stop tweeting, too: a new Politico poll says that 69 percent of voters say the president uses Twitter too much. Fifty-nine percent say his Twitter habit is a bad thing, and even 53 percent of G.O.P. voters say he should cut down on his use of the platform.

See the article here:
Is Trump Violating the First Amendment by Blocking People on Twitter? - Vanity Fair

Portland Mayor Ted Wheeler took several positions on the First Amendment during the past two weeks.

On May 29, Wheeler asked the federal government to block a downtown Portland rally organized by right-wing protesters, saying visiting extremists had no legal right to hate speech. That request was denied by the feds, decried by civil liberties watchdogs, and sneered at by "alt-right" leaders.

Worse, he was wrong: The protections of the U.S. Constitution are designed to forbid the government, including Portland mayors, from deciding what citizens can and cannot say, even when it is deeply offensive.

By this week, Wheeler's office reversed itself again, saying the mayor had misspoken.

Wednesday, May 24 In a WW story on the street brawls that had already occurred between alt-right and antifascist groups, Wheeler's spokesman Michael Cox said: "Portland is going to continue with our strategy: honoring First Amendment rights while not tolerating acts of violence, vandalism or blocking transit."

Monday, May 29 Three days after a double murder on a MAX train, Wheeler called for revoking federal permits for the alt-right rally:

"My main concern is that they are coming to peddle a message of hatred and of bigotry. And I am reminded constantly that they have a First Amendment right to speak, but my pushback on that is that hate speech is not protected."

Wednesday, May 31 Wheeler wrote an op-ed in USA Today, backing away from his interpretation of the Constitution from a day earlier:

"I am a firm supporter of the First Amendment. While this planned demonstration is constitutional, it is highly irresponsible."

Monday, June 5 Cox said Wheeler didn't really mean hate speech was unconstitutional:

"He was being a being a bit imprecise. He was really talking about words meant to incite violence."

More:
Mayor Ted Wheeler Changed His Mind About the First Amendment, More Than Once - Willamette Week

NEW YORK President Donald Trump may be the nations tweeter-in-chief, but some Twitter users say hes violating the First Amendment by blocking people from his feed after they posted scornful comments.

Lawyers for two Twitter users sent the White House a letter Tuesday demanding they be un-blocked from the Republican presidents @realDonaldTrump account.

The viewpoint-based blocking of our clients is unconstitutional, wrote attorneys at the Knight First Amendment Institute at Columbia University in New York.

The White House didnt immediately respond to a request for comment.

The tweeters one a liberal activist, the other a cyclist who says hes a registered Republican have posted and retweeted plenty of complaints and jokes about Trump.

They say they found themselves blocked after replying to a couple of his recent tweets.

The activist, Holly OReilly, posted a video of Pope Francis casting a sidelong look at Trump and suggested this was how the whole world sees you. The cyclist, Joe Papp, responded to the presidents weekly address by asking why he hadnt attended a rally by supporters and adding, with a hashtag, fakeleader.

Blocking people on Twitter means they cant easily see or reply to the blockers tweets.

Although Trump started @realDonaldTrump as a private citizen and Twitter isnt government-run, the Knight institute lawyers argue that hes made it a government-designated public forum by using it to discuss policies and engage with citizens. Indeed, White House press secretary Sean Spicer said Tuesday that Trumps tweets are considered official statements by the president.

The institutes executive director, Jameel Jaffer, compares Trumps Twitter account to a politician renting a privately-owned hall and inviting the public to a meeting.

The crucial question is whether a government official has opened up some space, whether public or private, for expressive activity, and theres no question that Trump has done that here, Jaffer said. The consequence of that is that he cant exclude people based solely on his disagreement with them.

The users werent told why they were blocked. Their lawyers maintain that the connection between their criticisms and the cutoff was plain.

Still, theres scant law on free speech and social media blocking, legal scholars note.

This is an emerging issue, says Helen Norton, a University of Colorado Law School professor who specializes in First Amendment law.

Morgan Weiland, an affiliate scholar with Stanford Law Schools Center for Internet and Society, says the blocked tweeters complaint could air key questions if it ends up in court. Does the public forum concept apply in privately run social media? Does it matter if an account is a politicians personal account, not an official one?

San Francisco-based Twitter Inc. declined to comment. The tweeters arent raising complaints about the company.

38.907192 -77.036871

More here:
Twitter users blocked by Trump say he's violating the First Amendment - New York's PIX11 / WPIX-TV

J.P. Krause (photo courtesy Charlie Vitunac)

Vero Beach High School, a public high school on the east coast of Florida, has a First Amendment problem.

The school failed to respectit.

And now a studentJ.P. Krause, a top student, rising senior, our client, and the young man who shouldserve as VBHS senior class president in the coming school yearunderstands better why the Constitution requires public institutions, like his school, to respect the constitutional rights of its students. Because here the school punished J.P. for a humorous campaign speech he made; it disqualified him from the election only after he won the election. Quite the unconstitutionaldaily double pulled off by the school administratorsthey not only unconstitutionally deemed the third place candidate the winner, but took away the voting privileges of its entire senior body class, who elected J.P. President.

The school says he humiliated the candidate who came in second by way of his 90-second impromptu campaign speech, a speech given in class with his A.P. U.S. History teachers permission. Thanks to a student who recorded the speech and shared it with J.P., we know that he did no such thing. You can see for yourself after the jump:

As you can see, the video reflects nothing more than good-natured, All-American campaigning for office. But the school says otherwise. It says its broadly written anti-harassment code of conduct allows it to disqualify J.P. from the race because of this speech.

The Constitution says differently. As we explained in our letter to the school administration on J.P.s behalf:

The First Amendment protects speech that might offend others. In Tinker v. Des Moines Independent School District, 393 U.S. 503, 512 (1969), the United States Supreme Court recognized neither students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. The Court held that a school may not censor a students speech unless it caused a substantial disruption of, or a material interference with, school activities. J.P.s speech caused no substantial disruption of, or material interference with school activities or the rights of other students. His speech simply asked his fellow students for their support in the upcoming student election.

To be sure, if a student gives a speech that is lewd, vulgar, or profane, then the school can sanction him. See, e.g., Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). But that is not remotely the case here.

J.P.s speech did no more than involve light-hearted humor by associating his opponent in satirical manner with current political and cultural events. His speech directly referenced national political campaign topics, such as Communism, raising taxes, and President Trumps stated intention to build a wall on our countrys southern border. Nobody could have taken his comments seriously; that is, no reasonable person believes his fellow candidate for the Presidency is a Communist, wants to raise the students taxes, or favors Sebastian River High School rather than her own high school. Yet VBHS Principal Shawn OKeefe claims in an email to J.P.s mother that J.P.s speech violated the harassment policy because he publicly humiliated his opponent. Accepting that preposterous claim for the sake of argument, the Supreme Court has held time and again, both within and outside of the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it. See Tinker, 393 U.S. at 509. As subsequent federal cases have made clear, Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance. Here, we have no fear of disruption, let alone a specific or significant fear.

We further explained that the schools code of conduct policy regarding offensive speech violated the First Amendment, as well:

The Student Handbook broadly defines harassment as any threatening, insulting, or dehumanizing gesture, use of data or computer software, or written, verbal or physical conduct directed against a student or school employee that: 1) Places a student or school employee in reasonable fear of harm to person or damage to property, 2) Has the effect of substantially interfering with a students education performance, opportunities, or benefits, 3) has the effect of substantially disrupting the orderly operation of a school. Handbook at 30-31.

*****

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 harrassment 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, J.P.s speech has been targeted by the school districts harassment policy, a policy that is similarly overbroad and unconstitutional. J.P. did not create a substantial disruptionto the contrary, the video of the incident reflects that the speech allowed for 90 seconds of lighthearted fun, and clever political satire, in a high-level academic class.

Whats particularly striking about this misuse of a speech code is the fact that the student handbook promises to deliver a much more robust institution for its public school students. In the handbook, VBHS and the Indian River County School District claim that the school must prepar[e] all students to thrive in college, career, and community endeavors. In the 21st Century, we should expect to hear opinions we may not personally agree with and stand ready to engage those opinions in the marketplace of ideas. Vero Beach High School does its students no service to punish a student for innocent humor conducted as part of a school election, with an A.P. U.S. History teachers permission. To the contrary, the schools misuse of its Code of Conduct unjustly steals the election and brands his record with a harassment charge, unconstitutionally interferes with J.P.s educational opportunities, and jeopardizes his college admission possibilities.

The classroom has been recognized by the Supreme Court of the United States as the marketplace of ideas, and the High Court has emphasized the nations future depends on leaders trained through wide exposure to that robust exchange of ideas. High school students, particularly those campaigning in a school election for senior class president, cannot be punished for innocuous humor and political satire of the sort J.P. engaged in. The Constitution forbids it. PLF optimistically believes that VBHS administration and the local school board will think better of the decision to punish J.P. and reverse that decision.

Read the rest here:
Vero Beach High School has a First Amendment problem - Pacific Legal Foundation (PLF) (press release) (blog)

Columbia Law Schools Knight First Amendment Institute is asking President Donald Trump to unblock people on Twitter and threatening him with legal action if he doesnt comply.

Trump, like many other Twitter users, routinely blocks critics, trolls, and other neer-do-wells from following him on the social media platform. But, as president of the United States, Trump is not like any other Twitter users.

The Knight Institute decided to let Trump know in a letter written on behalf of individuals who have been blockedthat he could be running afoul of the Constitution.

We write on behalf of individuals who have been blocked from your most-followed Twitter account, @realDonaldTrump, because they disagreed with, criticized, or mocked you or your actions as president, the Knight Institute letterreads. This Twitter account operates as a designated public forum for First Amendment purposes, and accordingly the viewpoint-based blocking of our clients is unconstitutional. We ask that you unblock them and any others who have been blocked for similar reasons.

Several users are cited, including Holly OReilly, who goes by the Twitter handle @AynRandPaulRyan. She was blocked after the following Tweet:

The letter complains that the blocking violates the First Amendment because Trumps account constitutes a designated public forum, much like White House press briefings or a city council meeting.

Still, the letter wasnt all criticisms: The Knight Institute praised the president for his use of the social medium to communicate with the public.

Your vigorous use of Twitter to comment about matters mundane as well as momentous has afforded Americans valuable insight into your policies, actions, and beliefs, the letter said. It has also supplied the public with a means of engaging you directly.

The Knight Institute is just trying to make sureallAmerican Twitter users have the chance to share their thoughts with the president.

Top photo: President Donald Trump heads to the Oval Office after speaking in the Rose Garden of the White House on June 1, 2017.

Go here to read the rest:
First Amendment Group Threatens Legal Action Against Trump for Blocking People on Twitter - The Intercept

The editorial "Standing tall for sneakiness" (June 4) accused me of distorting the First Amendment beyond anything the Founders ever imagined. Have you read it lately? It says, in part, that government shall make no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble. And yet the editorial appears to endorse new laws infringing on our right to privacy to join and support groups.

Perhaps you want to limit the right of elected officials, like Eric Greitens, to raise money for advocacy groups. If so, tread carefully. And certainly dont endorse new laws ensnaring groups independent of elected officials from forming and speaking out on public policy while ensuring their members keep their privacy.

In supporting privacy for these groups, the group I run does not stand alone. We stand with the Supreme Court. In NAACP v. Alabama, the court ruled that government cant force nonprofits to turn over their membership lists. The justices warned that such disclosure may constitute as effective a restraint on freedom of association as (other) forms of governmental action.

In Talley v. California, the high court said disclosure requirements would tend to restrict freedom to distribute information and thereby freedom of expression ... fear of reprisal might deter peaceful discussions of public matters of importance.

Such privacy rights related to speech also protect an independent media. Some elected officials want new laws to punish the press for publishing leaks or quoting anonymous sources. The media, including the Post-Dispatch, need to realize that the First Amendment gives it no more rights than citizens who form groups. Attacking citizen rights to free speech undermines the medias rights to the same.

David Keating Alexandria, Va.

President, Center for Competitive Politics

See original here:
First Amendment gives advocacy groups a right to privacy - STLtoday.com

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.

This is the First Amendment to our Constitution and it is first because it embodies the most important principles of a free country, and our founding fathers viewed the institutionalization of these principles as the highest priority for our new nation.

Political leaders who seek to curb and intimidate the press from exercising its First Amendment rights are usually driven by either a thin-skinned persona that makes them recoil at public criticism, or the need to hide the truth about something that the press is investigating and reporting.

In Donald Trump, it seems we have a president who wants to silence our free press and control the narrative about him for both reasons. First, his blatant need for adoration and applause reveals him to be an insecure egomaniac who angers at anything negative said about him. Second, and more importantly, his efforts to discredit press reports relating to all things relating to the Russia investigation suggests he and/or his team have something to hide.

Thankfully, his calculated characterization of segments of the media as purveyors of fake news and congressional investigations as witch hunts has emboldened rather than discouraged reporters and politicians of conscience to dig deeper. They understand that preserving our First Amendment rights is more important to our country than preserving a Trump presidency that threatens those rights.

Trumps relentless attacks on the Washington Post and New York Times, specifically, and the media generally, are part of a strategy to redirect the publics attention from the story being reported to the source of the reporting. Trump wants his foolish tweet attacks on the media to be the story that activates his base. Unfortunately for him, while his tweets may play well to those who cheer him at his contrived rallies, those folks do not get to vote again until 2020, and he has a big job to do, and a lot to answer for, in the interim.

In his effort to redirect public attention away from the Russia investigation and all things related, Trump attacks the anonymous sources of damaging facts reported in the press, and calls for the prosecution of these leakers. Most reasonable people will agree that the leaking of classified information that potentially compromises our security and/or any military operations should be prosecuted to the fullest extent of the law.

The Julian Assanges and Chelsea Mannings of the world will find no comfort here. However, it is very different when someone working in the White House tells the press that the president gave the Russian ambassador classified information during their meeting, and chortled that his firing of FBI Director James Comey takes the heat off. That anonymous source is doing our country a service by alerting us to behavior by our president that breaches the trust of a valuable ally, and fuels/justifies concerns about his relationship with our primary adversary.

If an FBI employee has knowledge of documents that show Trump asked the since-fired FBI director to back off his investigation of Michael Flynn, shouldnt that information come to light? Shouldnt we know if our president is acting improperly, if not criminally? Trumps fragile ego, combined with his prior role as an iron-fisted leader of a private company, prevent him from understanding that his title does not empower him to stop concerned citizens from talking to the press about bad acts committed by public servants.

White House staffers who anonymously leak information to the press do so at great risk. If a newspaper reveals their identity, or they are otherwise uncovered as a source, they would face humiliation, the loss of their job, and their ability to provide the public valuable information. That would also discourage others in government who believe the public should have important facts about a controversial/important subject. The simple truth is that if newspapers reveal their sources, no one will talk to them.

As president of the United States, Trump is the most scrutinized person in the world. There is no excuse for him not understanding that, and his accountability to all Americans. If he cant take that heat, he does not belong in the kitchen.

Richard Ross mediates real estate and business-related disputes and resides in Amesbury.

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Ross's view: The First Amendment and anonymous sources - The Daily News of Newburyport

TwitterIn what might indicate a significant shift in federal priorities for college oversight, Education Secretary Betsy DeVos has picked a civil libertarian activist as deputy assistant secretary for higher education programs.

Adam Kissel served for five years at the Foundation for Individual Rights in Education (FIRE), an organization devoted to trying to preserve free speech and due process on college campuses. FIRE has long battled campus censorship efforts. It has also opposed colleges' turn toward internal disciplinary methods that do not have much respect for due process or for students' rights to defend themselves against claims of sexual misconduct. Those methods were encouraged by the Obama-era Department of Education, so Kissel's appointment may be a sign of a significant shift.

Kissel left FIRE in 2012 and went to work for the Charles Koch Foundation. Picking him for her team suggests that DeVos has an interest in civil liberties on campus. Maybe she should think about ways to encourage her boss in the White House to show more interest in off-campus freedoms.

To read more about Kissel, go here. To see an outraged response by Sen. Patty Murray (D-Washington), who apparently objects to using the same legal standards to prove sexual misconduct in college courts and in ordinary courts, go here.

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Betsy DeVos Names First Amendment Crusader to Prominent Higher Ed Role - Reason (blog)