Daily Archives: August 15, 2017

SOUTHERN INDIANA With the recent events in Charlottesville, many Americans are asking themselves: Does the first amendment protect all forms of speech?

According to Ted Walton, lawyer and partner at Clay Daniel Walton Adams, a law firm in Louisville, the First Amendment protections for the freedom of speech are wide and do include speech that is distasteful, offensive and hateful.

There is no hate speech exception to the First Amendment and in fact thats been reaffirmed by the Supreme Court very recently in an interesting case, Walton said.

That case, which was heard by the court earlier just this year, was Matal, Interim Director, United States Patent and Trademark Office vs. Tam, in which the Supreme Court unanimously ruled that an Asian-American band The Slants was legally allowed to trademark its name despite its potentially offensive nature.

This Supreme Court has really championed First Amendment rights and youve seen that with things like the campaign finance rulings that theyve passed," said Rhonda Wrzenski, associate professor of political science at Indiana University Southeast. "Theres been other rulings too where theyve allowed groups that werent necessarily popular to have more speech rights. So typically they make exceptions to the speech rights, theyve banned obscenities, defamations, inciting violence. Basically, threats.

Walton explained that, legally speaking, the First Amendment doesnt protect verbal acts

If you are using words in such a way that its directed at a particular person and meant to incite someone and beat somebody up, that can be a criminal act, Walton said.

Yelling Fire! in a crowded theater is a verbal act and intentionally creates a hazardous situation and is not protected by the First Amendment, according to Walton

Thats the dichotomy," Walton said. "You have folks that are standing up and saying they hate these groups [of people]. Its going to be protected speech. But if people are saying lets go drive a car into this group and somebody drives a car into that group, that person is not going to have First Amendment protection."

Originally posted here:
FIRST AMENDMENT: How far does it go? - Evening News and Tribune

On Friday, August 11, I traveled to Charlottesville, Virginia to attend my co-clerks wedding. I was generally familiar with the controversy over the removal of the Robert E. Lee statue, but was not aware that white supremacist demonstrations were scheduled for the weekend. After the rehearsal dinner wrapped, I drove back to the hotel along Main Street. As we approached the Rotundathe center of the campus designed by Thomas Jefferson himselfthe traffic ahead suddenly slowed to a crawl. In the distance, we saw some lights. At first glance, it appeared to be a candlelight vigil, but we quickly realized what was going on. Hundreds of white nationalists with torches were walking down the steps of the Rotunda, chanting something incoherent, though the word Jews was distinctly pronounced. The sight was surreal; I was more stunned than afraid.

Our hotel was a few blocks away. We drove back to the room, and checked #Charlottesville on Twitter to see what was going on. Moments earlier, the police had declared the gathering an unlawful assembly, and broke it up. (Some reports suggest pepper spray was fired).

This scene, however, was but a mere prelude. Saturday at noon, the Nazis planned to assemble at Emancipation Park, formerly known as Lee Park, to protest the removal of the Lee statue. Unsure of what would happen, we decided to spend the day out of town at Montpelier, the estate of James Madison. There was a strange aspect of visiting the home of the primary author of the First Amendment, while miles away, that same First Amendment was enabling contemptible bigots to inflict violence and, tragically, the loss of life.

The Battle of Charlottesville will be studied in many quarters for many years, but this early entry will focus on the role played by the First Amendment.

Kessler v. City of Charlottesville

On May 30, Jason Kessler applied for a permit to hold a rally on August 12 in Emancipation Park. According to his attorneys at the ACLU and the Rutherford Institute, he chose that location because the Plaintiff wishes to communicate a message that relates directly to the Parkspecifically, his opposition to the Citys decisions to rename the Park, which was previously known as Lee Park, and its plans to remove a statue of Robert E. Lee from the Park. (I have been quite critical of the ACLU for its caving on certain free speech issues, but here, and with its defense of Milo Yiannopoulos, the organization is staying true to its historic mission). Kessler estimated that 400 people would attend, and stated that he absolutely intends to have a peaceful rally and his group would avoid violence. Initially, the City of Charlottesville granted Kesslers application, and also those of other counter-protestors. After the application was granted, however, business leaders in Charlottesville urged that the rally be moved to McIntire Park, which was a mile away. McIntire Park is much larger and has far fewer entrances. Thetopic was also discussed at City Council meetings. Members of the Council spoke out against the white supremacists on social media.

On August 7, the City revoked Kesslers permit, modif[ying] the application to allow a rally in the larger McIntire Park. The city cited safety concerns based on the number of people who were expected to attend Kesslers rally. Specifically, the government explained that holding a large rally at Emancipation Park poses an unacceptable danger to public order and safety. No sources were provided to justify those concerns that had come to the Citys attention. The government cited conservative estimates of no less than 1,000, with as many as 2,000 or more counter-demonstrators in attendance based on internet-based marketing efforts by the Plaintiffs. While Kesslers permit was revoked, the city did not revoke the permits of the counter-protestors, who were still approved to rally within blocks of Emancipation Park.

On August 10, Kessler sought a preliminary injunction in the U.S. District Court for the Western District of Virginia, barring the City from revoking the permit to protest in Lee Park. The motion stated that the City will suffer no harm to its legitimate interests if preliminary relief is granted. Regardless of where the demonstration takes place, the City has an obligation to secure and protect the safety of the demonstrators and the public. The lawyers added that [t]he City's expressed desire to provide security and protection at an alternative site because it would be easier to do so . . . is not a sufficiently substantial governmental interest to override Plaintiff's First Amendment right.

The following day, the City of Charlottesville filed a brief in opposition to Kesslers motion for a preliminary injunction. The government argued that the decision to move the plaintiffs protest from Emancipation Park to McIntire Park was justified without reference to speech content or the Plaintiffs viewpoint, [] was narrowly tailored to serve a significant governmental interest, and [] left open ample alternative channels for communication. The government added that Kesslers complaint does not contain sufficient allegations to support a claim that the City and Mr. Jones were motivated by fears about how counter-protesters will respond to the Plaintiffs rally.

The judiciary would disagree. After a hearing, on the evening of Friday August 11, Judge Glen E. Conrad issued a preliminary injunction, requiring the City of Charlottesville to allow the white supremacists to assemble in Emancipation Park. (The federal courthouse is about three blocks from that park). The court dismissed the governments speculation about the crowd size, concluding that there is no evidence to support the notion that many thousands of individuals are likely to attend the demonstration. Crucial to Judge Conrads analysis was the fact that Kesslers permit was revoked, but the permits of the counter-protestors were not:

The disparity in treatment between the two groups with opposing views suggests that the defendants' decision to revoke Kessler's permit was based on the content of his speech rather than other neutral factors that would be equally applicable to Kessler and those protesting against him. This conclusion is bolstered by other evidence, including communications on social media indicating that members of City Council oppose Kessler's political viewpoint.

Leave aside for now the significance of the court looking to statements on social media by members of government that conflict with the Citys official position to find animus. The courts analysis focused exclusively on the irreparable harm that would be faced by Kessler. There was scant mention of the possible harms to public safety. The closest the court came to addressing this point was noting that a change in the location of the demonstration would not eliminate the need for members of the City's law enforcement, fire, and emergency medical services personnel to appear at Emancipation Park. Instead, it would necessitate having personnel present at two locations in the City. But beyond these sentiments, the opinion hinged almost entirely on the fact that the plaintiffs were likely to succeed on the merits.

Free Speech on the Grounds

In hindsight, the value of the protestors speech was minimal; the cost to public safety was tragic. Shortly after Judge Conrads ruling was issued, the torch-lit demonstration began at the Rotunda. Many were injured as torches and other projectiles were thrown. Roughly twelve hours later, the riots would commence at Emancipation Park. It is rare that a judicial decision can have such an immediate and palpable effect on both public safety and individual liberty.

By the end of the horrific day, there were more than three-dozen injuries. Heather D. Heyer was murdered. Two Virginia State troopers died when their helicopter crashed outside of Charlottesville. (I observed the helicopter hovering over Emancipation park throughout the day). Shortly after the violence began, the Mayor of Charlottesville tweeted, For all watching events in crowded, downtown Cville: this is EXACTLY why City tried to change venue to McIntire-but court wouldnt allow. Had the protest been held at the larger McIntire park, perhaps the police could have kept a stronger control on crowd size, and automobile traffic. Perhaps not.

As a matter of First Amendment law, Judge Conrads opinion is correct. The Citys decision to revoke the plaintiffs permit, but not those of the counter-protestors, gave rise to a very strong presumption that the decision was made based on the content of the nationalists speech. My understanding is that the City merely overlooked revoking the other permits. This blunder, however, provided the basis of the courts decision.

Moreover, there was no concrete evidence that the crowd size would increase, beyond the speculation based on social media traffic. Merely asserting a generalized interest in safety, without more, cannot justify the revocation of the permit in this manner. Indeed, had the permit never been granted in the first place, the City could have avoided the presumption of animus against the plaintiffs bigoted speech. Much attention will be paid to how the Charlottesville Police Department managed the affair. The Citys attorneys also deserve some scrutiny. Had the case been lawyered better from the outset, the analysis would be much closer. If the government could have shown that in the larger park, traffic could have been better cordoned off, the requisite scrutiny may have been met. But here we are.

The Social Costs of the Bill of Rights

The constitutional questions here are difficult and complex. As usual, Justice Robert H. Jackson stated the issue far better than I possibly could. Here is an excerpt from his iconic dissent in very apt case of Terminello v. Chicago:

[U]nderneath a little issue of Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society's need for public order. . . .

But if we maintain a general policy of free speaking, we must recognize that its inevitable consequence will be sporadic local outbreaks of violence, for it is the nature of men to be intolerant of attacks upon institutions, personalities and ideas for which they really care. In the long run, maintenance of free speech will be more endangered if the population can have no protection from the abuses which lead to violence. No liberty is made more secure by holding that its abuses are inseparable from its enjoyment. We must not forget that it is the free democratic communities that ask us to trust them to maintain peace with liberty and that the factions engaged in this battle are not interested permanently in either. . . .

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

The Battle of Charlottesville illustrates, once again, the social costs imposed by the Bill of Rights.

See original here:
The First Amendment on the Grounds in Charlottesville - Lawfare (blog)

The ugly and tragic events in Charlottesville, Va., which resulted in the death of one 32-year-old woman who was hit by a car, have sparked rallies across the country and the firing of at least one white nationalist marcher.

Trending hashtags on Twitter #nazihunter and #goodnightaltright and accounts like @yesyoureracist are calling on the public to identify people who attended the white nationalist rally in Charlottesville so they can be brought to justice. At least one alt-right marcher has already been fired by his company for reportedly attending the march; he worked as a cook for the Berkeley, Calif., hot dog chain Top Dog. I think its really important as a statement to show thats not tolerated, one customer told NBC Bay Area.

Experts say employers like Top Dog, who dont agree with views their employees express, have every right to fire those employees without any notice. The white nationalist marchers in Charlottesville chanted anti-semitic and racist slogans such as Jew will not replace us and blood and soil, a phrase used by Nazis, as they carried tiki torches and weapons, as they made their way onto the University of Virginias campus. They were opposing the removal of a statue of Confederate general Robert E. Lee.

Employees are legally protected from being fired based on discrimination, for their race, color, religion, sex, or national origin, according to the Civil Rights Act of 1964. But the First Amendment, which prohibits the government from interfering in the free exercise of speech and religion, does not protect employees who make statements or donations in favor of causes their employers disagree with from being fired, said Mark Tushnet, a professor of law at Harvard Law School.

But perhaps more surprising: Companies also have the right to terminate those who clashed with the white supremacist marchers. Attending a rally no matter what side youre on can get you fired. Private-sector employees are generally employed at the will of the employer, Tushnet said, and their employers can fire them as they see fit. That includes disagreement with what they say in public, he said. (One big caveat: The employer could open itself up to lawsuits if it fires someone in what turns out to be a case of mistaken identity.)

Who is at risk of getting fired all depends on the company. Journalists were warned not to attend the womens march in Washington, D.C. following Trumps inauguration. The editor of The Atlantic, for example, told employees they couldnt do anything that might be perceived as political, except vote. In 2011, two NPR journalists were fired for participating in Occupy Wall Street protests. But if you work for the American Civil Liberties Union? Taking time out to march for a social cause may even burnish your credentials.

Talking about sensitive politics at work, posting on social media, or making donations to a political cause can also be grounds for firing, said Paula Brantner, senior adviser at Workplace Fairness, an employment law nonprofit. Employees sometimes mistakenly think giving a donation to a candidate is private, but its public record, and can cost you your job if an employer says I dont want someone who supports this candidate working with me, she said.

There are exceptions to this rule. Some states including New York, California and the district Washington, D.C., have specific laws that protect employees from being disciplined for their political activities outside of work, said Merrick Rossein, a professor of law and former acting dean of CUNY Law School in New York, but even in those states, employers could argue that employees views or actions make them unable to do their job well.

And many employees dont even have to attend a rally to be terminated. The author of the now infamous Google memo about diversity was dismissed from his job for saying women are inherently unsuited for jobs in tech, in part because theyre prone to being neurotic. The employer is also perfectly fine to say we dont want people who have those opinions working for our company, Brantner said. The employee in question, software engineer James Damore, is reportedly exploring legal action against Google.

Im not going to be the one to tell people not to participate in rallies or support a candidate, Brantner added, but I want people to be aware there are potential consequences.

View post:
Why the First Amendment won't protect Charlottesville white supremacists from being fired - MarketWatch

A 3D printer company founded by provocateur Cody Wilson, along with the Second Amendment Foundation, has filed for certiorari to the U.S. Supreme Court in a case asking that the company be allowed to post on its website instructions for using a 3D printer to manufacture a plastic gun.

Defense Distributed and the Foundation sued the State Department and other government persons and agencies back in May 2015 after the government threatened the company in May of 2013 for hosting the 3D gun manufacturing files.

Defense Distributed

The government maintains that such files are essentially armaments in and of themselves and subject to existing laws against the export of such munitions, with posting them in a place where foreigners could access them constituting such an illegal export.

The plaintiffs have sustained a series of losses in lower courts attempting to get a preliminary injunction against the government. Their plaintiffs contends the government has violated the company owners' First, Second, and Fifth Amendment rights with its actions.

Most specifically in this cert petition they have asked the Supreme Court to answer these questions:

1. Whether a court weighing a preliminary injunction must consider a First Amendment plaintiff's likelihood of success on the merits. 2. Whether it is always in the public interest to follow constitutional requirements. 3. Whether the Arms Export Control Act of 1976....and its implementing International Traffic in Arms Regulations ("ITAR")...may be applied as a prior restraint on public speech.

The petition insists that in denying their request for an injunction, the Fifth Circuit Court of Appeals has taken a dangerous stance in balancing the First Amendment against government's insistence that it has very good reason to violate it.

It is also worth noting the files in question, although no longer hosted by Defense Distributed, are universally available on the internet from many other sources.

Defense Distributed is represented in this case by Alan Gura, who won two previous Second Amendment victories at the Supreme Court in 2008's Heller case and 2010's McDonald. Gura and his co-counsels argue in the petition the Fifth Circuit should not have been allowed to have:

simply declared that the government's asserted interests outweighed the interest in securing constitutional rights....considering the merits of preliminary injunction motions is not optional. Of all contexts, the merits cannot be optional in First Amendment cases. It should ordinarily go without sayingand so it must now be saidthat federal courts cannot dismiss the Constitution's primacy in our legal system...

The government can be relied upon to assert the necessity of every prior restraint. The public must be able to rely on the courts to test these assertions for constitutional compliance.

Gura argues the government's rules defining what falls under ITAR are completely ambiguous and confusing. The process for learning whether or not those rules apply to you is a similar mess of ambiguity and overreach. And the government's ability to stonewall drags out cases like that of Defense Distributed for years, Gura writes.

The petition also details the history of interpretation of ITAR over the past decade in the (proper) direction of not using it as a prior restraint on expression or speech on American citizens when it involved non-classified information.

The Fifth Circuit, in its decision on the appeal of an initial district court loss for Defense Distributed, was pretty blatant in saying the First Amendment doesn't count here because the government says so:

Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security.

Gura finds that assertion unsatisfying, leaning on a Fifth Circuit dissent from the panel's majority opinion. Dissenter Judge Edith Jones:

noted that "[i]nterference with First Amendment rights for any period of time, even for short periods, constitutes irreparable injury,"...and that "Defense Distributed has been denied publication rights for over three years,"...She then found it "a mystery" why the majority was "unwilling to correct" the district court's "obvious error" in applying only intermediate scrutiny to the content-based prior restraint at issue...

[Judge Jones believes the State Department's censorship of Defense Distributed] "appears to violate the governing statute, represents an irrational interpretation of the regulations, and violates the First Amendment as a content-based regulation and a prior restraint."

Jones also pointed out how weirdly ineffectual is the government's desired power to violate the First Amendment. The government admits stating or publishing that same information at a conference in the U.S., or in a domestic publication or library, would be protected speech if they somehow could insure no foreigners accessed it. Foreigners could, of course, access such information on the Internet, an act considered a blow against national security so severe it trumps the First Amendment. That is, if "foreigners can't hear this speech" is to be held as true and important, the power to restrict speech applies far beyond the Internet.

The Fifth Circuit's decision to ignore the First Amendment is dangerous far beyond the simple question of publishing files for printing plastic armaments on the internet, Gura argues. That decision:

has unsettled the established norms for adjudicating preliminary injunction requests. Gone is this [Supreme] Court's careful balancing test, with its reliance on the merits. In its place, a wholly arbitrary system: The court will consider the merits, when it wishes to do so. Whether the merits might reveal a constitutional violation is less important, because the court will enforce the Constitution only when it seems to be a good idea.

What are courts, attorneys, and the public to make of this innovation?

Critics of this or that opinion often allege that a court has followed an extra-constitutional agenda. For a court to declare that it has done just thatin ignoring a content-based prior restraint no lessraises basic questions about the judiciary's function. The public is left with no way of knowing when a judge would declare some interest more important than the Constitution, or even bother hearing the merits of plainly significant pleas to enjoin unconstitutional conduct.

Absent a merits inquiry, a court balancing the unknown equities is reduced...to declaring whether an abstract interest in constitutional rights is more or less important than an equally abstract government interest. And if the court then decides, as did the majority below, that security > freedom, that ends the matter. The logic is inescapable; where applied, it bars any injunctive relief.

Expressed that way, the danger of letting the Fifth Circuit decision stand should be clear even to Americans who don't understand why anyone, domestic or foreign, needs a computer file that helps them print a plastic gun at home.

The Supreme Court should take up the case, and let lower courts know they can't, absent a fair consideration of the merits, blithely decide that security beats the First Amendment in court.

Reason TV interviewed Cody Wilson of Defense Distributed last year:

Go here to read the rest:
Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment? - Reason (blog)

Pittsburgh Post-Gazette

March on Google: Self-proclaimed 'First Amendment supporters' to ... Pittsburgh Post-Gazette The group, reacting partly to a memo written by ex-Googler James Damore, will meet at Google offices across the country. Pittsburgh Prepares For March On Google By Self-Proclaimed First Amendment Supporters90.5 WESA March on Google comes to Pittsburgh this weekend , one of eight citiesWTAE Pittsburgh Google's Pittsburgh Offices Targeted In Nationwide ProtestsCBS Pittsburgh / KDKA all 13 news articles »

Read this article:
March on Google: Self-proclaimed 'First Amendment supporters' to ... - Pittsburgh Post-Gazette