Monthly Archives: July 2017

First Amendment, amendment (1791) to the Constitution of the United States that is part of the Bill of Rights and reads,

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.

The clauses of the amendment are often called the establishment clause, the free exercise clause, the free speech clause, the free press clause, the assembly clause, and the petition clause.

The First Amendment, like the rest of the Bill of Rights, originally restricted only what the federal government may do and did not bind the states. Most state constitutions had their own bills of rights, and those generally included provisions similar to those found in the First Amendment. But the state provisions could be enforced only by state courts.

In 1868, however, the Fourteenth Amendment was added to the U.S. Constitution, and it prohibited states from denying people liberty without due process. Since then the U.S. Supreme Court has gradually used the due process clause to apply most of the Bill of Rights to state governments. In particular, from the 1920s to the 40s the Supreme Court applied all the clauses of the First Amendment to the states. Thus, the First Amendment now covers actions by federal, state, and local governments. The First Amendment also applies to all branches of government, including legislatures, courts, juries, and executive officials and agencies. This includes public employers, public university systems, and public school systems.

The First Amendment, however, applies only to restrictions imposed by the government, since the First and Fourteenth amendments refer only to government action. As a result, if a private employer fires an employee because of the employees speech, there is no First Amendment violation. There is likewise no violation if a private university expels a student for what the student said, if a commercial landlord restricts what bumper stickers are sold on the property it owns, or if an Internet service provider refuses to host certain Web sites.

Legislatures sometimes enact laws that protect speakers or religious observers from retaliation by private organizations. For example, Title VII of the federal Civil Rights Act of 1964 bans religious discrimination even by private employers. Similarly, laws in some states prohibit employers from firing employees for off-duty political activity. But such prohibitions are imposed by legislative choice rather than by the First Amendment.

The freedoms of speech, of the press, of assembly, and to petitiondiscussed here together as freedom of expressionbroadly protect expression from governmental restrictions. Thus, for instance, the government may not outlaw antiwar speech, speech praising violence, racist speech, pro-communist speech, and the like. Nor may the government impose special taxes on speech on certain topics or limit demonstrations that express certain views. The government also may not authorize civil lawsuits based on peoples speech, unless the speech falls within a traditionally recognized First Amendment exception. This is why, for example, people may not sue for emotional distress inflicted by offensive magazine articles about them, unless the articles are not just offensive but include false statements that fall within the defamation exception (see below Permissible restrictions on expression).

The free expression guarantees are not limited to political speech. They also cover speech about science, religion, morality, and social issues as well as art and even personal gossip.

Test Your Knowledge

Infamous Nazis

Freedom of the press confirms that the government may not restrict mass communication. It does not, however, give media businesses any additional constitutional rights beyond what nonprofessional speakers have.

Freedom of petition protects the right to communicate with government officials. This includes lobbying government officials and petitioning the courts by filing lawsuits, unless the court concludes that the lawsuit clearly lacks any legal basis.

Here is the original post:
First Amendment | Contents & Supreme Court Interpretations ...

Shortly before its summer recess, the U. S.Supreme Court unanimously issued a pair of concurrent rulings concerning the right of freedom of speech under the First Amendment. Although neither arose in Minnesota, the pair are of particular interest and importance here.

MinnPost photo by Jana Freiband

Marshall H. Tanick

Both cases were significant, as are nearly all opinions of the high court, since the tribunal hears and decides only about 70 cases a year, less than 1 percent of the civil and criminal lawsuits it is requested to adjudicate annually. One of these rulings deservedly got ample public glare, perhaps even more than merited, while the other received much less attention than it warranted.

The former, Matal v. Tam[PDF], struck down a provision of the federal trademark law forbidding registration of any disparaging name or markthat reflects "contempt or disrepute" for an individual, group, or organization. The challenge was brought by an Asian-American rock musicband known as "Slants," a reference to the derogatory phrase "slant-eyes" for Asian-Americans, after the Trademark and Patent Office refused to accept its name for legally protected intellectual property. The justices, in a ruling written by Justice Samuel Alito, reasoned that the proscription constitutes impermissible "viewpoint" censorship.

The ruling garnered lots of attention and accompanying acclaim because of its popular-culture subject matter. But it also was noteworthybecause of its seemingly fatal implication for the Trademark Office's declination of the nickname "Redskins" for the professional football team representing the nation's capital. The high court refused last fall to review that rulingat the same time as it took on the "Slants" case, but theoutcome in the rock-band case maydoom the decisiondisallowing the "Redskins" appellation.

That issue has particular resonance here.A number of leaders of the Native American community, along with many supporters, have vigorously opposed use of nicknames by sports teams they deem to denigrate them, although there are questions regarding the breadth of that aversion among rank-and-file Native Americans. As a result, school boards throughout the state have removed and replaced offensive Native American-related appellations from their squads, which has also occurred in other jurisdictions and at both public and private educational institutions.

Additionally, the Native American objectors, represented by a Minneapolis law firm, obtained the ruling from the Trademark office canceling the trademark of the "Redskins" name and logo, although that determination now is of dubious validity in light of the outcome of the "Slants" suit.

The contretemps has not been lost on the media, including some in Minnesota, that have struggled for years over how to report the names of athletic teams that have versions of Native American nicknames, particularly professional baseball and football teams.

The other high court free-speech decision, though, may have even more widespread significance. The case, Packingham v. NorthCarolina, concerned a state law that barred registered sex offenders from using any social media that is accessible to children. The Supreme Court, as in the "Slants" case, invalidated the measure as an unlawful restriction on freedom of expression.

In so doing, the decision authoredby JusticeAnthony Kennedy noted the ever-increasing and "protean" nature of the internet, pointing out that the number of Facebook users is thrice the population of the North American continent. Recognizing these features, the ruling equates the internet with traditional expressive forums like parks and other public places where freedom of speech is allowed to be largely untrammeled. That portion of the decision is suggestive that restraints on internet communications must besparse or virtually nonexistent to pass constitutional muster.

The implication drew some concern fromthree members of the court, led by Justice Joseph Alito, who has emerged as one of the strongest First Amendment defenders on the high court, which has taken on what Harvard Law School professor Noah Feldman describes as a "free speech absolutism" hue. Alito's centrality to this approach was exemplified by a solitary dissent he authored a few years ago supporting the right of anti-gay-rights extremists to protest vocally at military burial services in objection to the expansion of gays and lesbians in the armed services.

Although Alito and the other two, Chief Justice John Roberts and Justice Clarence Thomas, voted with the majority, they joined in a concurring opinion that lamented the far-reaching implications of the decision that would seem to bar any efforts to restrict social media communications by criminal offenders.

It remains to be seen how the ruling will affect conditions imposed on them or, for that matter, commonly accepted limitations on use of social media to engage in offensive or harassingcommunications. These types of restrictions are frequently resorted to by judges in Minnesota, and elsewhere in sentencing of criminal wrongdoers, including sex offenders, as well as inmarital disputes and other inter-personal spats.

The unanimity of these two freedom-of-speech decisions by the Supreme Court reflects their broad acceptanceacross the ideological spectrum. But they also are likely to be heard from again as these rulingsand their underlying reasonings play out inthe courts in Minnesota and around the country.

Marshall H. Tanick is aconstitutional lawattorney with theTwin Cities law firm of Hellmuth & Johnson.

WANT TO ADD YOUR VOICE?

If you're interested in joining the discussion, add your voice to the Comment section below or consider writinga letteror a longer-formCommunity Voicescommentary. (For more information about Community Voices, see our Submission Guidelines.)

Go here to read the rest:
First Amendment: Two recent Supreme Court decisions are of particular interest and importance in Minnesota - MinnPost

Janine Jackson interviewed Mara Verheyden-Hilliard about the right to protest for the July 14, 2017, episode of CounterSpin. This is a lightly edited transcript.

MP3 Link

Washington Post (6/27/17)

Janine Jackson: A recent popular op-ed called on those engaged in resisting the Trump administration to stop counting so much on lawyers. The fate of the nation cannot be left in the hands of the courts, the piece, written by a lawyer, argued, and thats solid advice. Popular action is what historically has moved the country forward.

But when people do go into the street and are arrested, what then? When they put their bodies on the line and the state creates a new law to criminalize that resistance, what then? Like it or not, the law is still one of the bigger tools in the box for Americans. So what does and doesnt it do for us in the present moment?

Mara Verheyden-Hilliard is an activist and attorney. Shes co-founder and executive director of the Partnership for Civil Justice Fund. She joins us now by phone from Washington, DC. Welcome back to CounterSpin, Mara Verheyden-Hilliard.

Mara Verheyden-Hilliard: Thank you for having me.

JJ: Well, Id like to start, if we could, with an update on the J-20, those arrested in inauguration protests in DC, who are facing what Ive heard called unprecedented charges for demonstrators, felony charges that could lead to 75, 80 years in prison. One of those still facing charges is journalist Aaron Cant, now at the Santa Fe Reporter, who has written for FAIR. We talked about the case in January. What should we know now about this ongoing story?

Mara Verheyden-Hilliard: There are millions of people who are engaging in political protest and political organizing who have never done so before. (image: WTTG-TV)

MVH: This case is really of extraordinary proportions, when you look at what the government is doing to people who are engaged in protests on the first day that Trump took office. And its really in its own context significant, too, because of the major shift in policing in Washington, DC, which we believe is intended to send a signal.

Whats happened now is more than 200 people were swept up in a dragnet arrest by the police, and this occurred after the police had followed the demonstration for, by their own account, approximately half an hour, while there were some people who broke windows, only a handful of people. And rather than going in and arresting the people for whom they had probable cause to arrest, the police waited that arbitrary time, tracked and detained 200 people. And so they swept up demonstrators, passers-by, journalists, anyone whos in proximity, anyone who is chanting and protesting.

And then they undertook this mass prosecution with the United States Attorneys Office here in the District of Columbia, in which people are being threatened with, as youve mentioned, jail time that is decades and decades long, really a lifetime of jail time, with these felony charges. They are charging people en masse with crimes that may have happened, in terms of property damage, but charging everyone with crimes without particularized probable cause, without being able to point to a person and say, you committed this act and so were charging you for this act. Theyre charging everyone in the vicinity for being in proximity.

This is extremely dangerous; it sets the stage that for any demonstration, if anyone commits a criminal act, an act of property damage, whether that be a protestor or, frankly, a police agent provocateur, the police can now use this as license, or they wish to, to sweep up everyone else around them.

JJ: This is what we talked about before. Its not a crime, now, is it, to be in proximity to other people who break the law in conjunction with First Amendment activities?

MVH: Of course its not, and it cannot be. And the First Amendment has always stood for that, in fact, you cannot criminalize a person for the acts of another. And particularly in the context of the First Amendment, when its an issue where the connection is that there may be a sympathy of political views, one cannot do that. There are cases dating back, NAACP v. Claiborne Hardware and others, the courts said you have to act with precision. You cannot say that just because people have a similar point of view, or may have similar political goals, that those who carry out illegal acts or acts of violence in pursuit of those goals, that those acts can be attributed to the others who do not.

JJ: Right. These charges, at the level theyre at, it feels new, but we know that the effort to repress First Amendment expression is not new. The Supreme Court last month rejected a First Amendment case that dates from years back, Garcia v. Bloomberg. Can you tell us about that and how it relates?

Occupy Wall Street marchers on the Brooklyn Bridge, October 1, 2011. (cc photo: Mat McDermott)

MVH: The Garcia v. Bloomberg case comes from the Occupy demonstration of 2011, when 700 people were peacefully marching, compliant with police orders, there was no violence, and as people marched, the police escorted the march. The police themselves closed the Brooklyn Bridge roadway to vehicular traffic. The police and police commanders themselves opened up the roadway to pedestrian traffic. It is the police and police commanders who led the demonstrators onto the roadway of the Brooklyn Bridge, and once those demonstrators had flowed and followed behind the lead of the police, the police stopped the march, trapped them from behind, mass-arrested 700 people.

When we litigated this case, we won at the District Court level, we won at the Second Circuit, in fact. And then Mayor de Blasio, who had taken office, frankly, running on an Occupy ticket, had the court reevaluate the ruling, and the court, in an extraordinary measure, reversed itself. And we took this case up to the Supreme Court, and the Supreme Court just last month determined that they would not hear it.

JJ: Obviously, lots of folks are taking their lead from this, and kind of joining on this bandwagon. We have a spate of anti-protest legislation around the country, even UN experts are issuing alarmed statements now. Some 20 states have passed or tried to pass laws allowing protesters to be charged with conspiracy, increasing penalties for blocking streets, even protecting drivers who run protesters over, banning masks and hoodies. I mean, is anyone really confused that the intent of these rules is to quash dissent, and doesnt that thinly veiled intent matter?

MVH: Its clear that there is an effort around the country to try, through legal meansalthough we would consider illegal meansto curtail peoples fundamental First Amendment rights to gather together in the streets, to be able to speak out in unified action.

I do think, as much as were seeing these kinds of restrictions imposed and these rulings, that at the same time it can obviously have a chilling effect on people, the reality is that people do always come out and people will continue to come out. And while this may be intended to have a chilling effect, it is really crucial that people stand up and speak out for what they believe in. And I do think the reason that were seeing these is because there is a growing recognition that there really is this fire of people, these embers burning, where we keep seeing people come up and demonstrating for what they believe in. Were seeing so many more people entering political life, even since the election of Donald Trump. People are taking to the streets, protesting, who never protested before.

So while were faced with what is I think overt repression, both in terms of these felony prosecutions, these state laws, these court rulings, we also are faced with the fact that there are millions of people who are engaging in political protest and political organizing who have never done so before, and thats a force that really cant be stopped.

JJ: Weve been speaking with Mara Verheyden-Hilliard of the Partnership for Civil Justice Fund. Find them online at JusticeOnline.org. Mara Verheyden-Hilliard, thank you very much for joining us today on CounterSpin.

MVH: Thank you for having me.

Subscribe: Android |

See the original post here:
'There's an Effort Around the Country to Curtail People's Fundamental 1st Amendment Rights' - FAIR