Daily Archives: October 12, 2020

Did the First Amendment to the Constitution lay the foundation for an authoritarian state? – The Indian Express

Posted: October 12, 2020 at 8:10 am

Updated: October 11, 2020 9:39:21 am

Written by Malini Bhattacharjee

The story of Indian politics is one of continuities more than ruptures contrary to the popular imagination, bolstered by arguments by several mainstream political analysts that the period since 2014 has paved the way for a new regime that has jeopardised democracy and tarnished the idea of India. Singhs book, which narrates the story of the passage of the First Amendment to the Indian Constitution by the Jawaharlal Nehru government in June 1951, provides an important interruption to this narrative.

The book draws attention to the enormous impact of this legislation on the fundamental rights of the citizen. Some of the major modifications introduced included increased restrictions on the freedom of speech and expression in the name of public order, the interests of the security of the state and relations with foreign states. The Act also enabled caste-based reservations by restricting Article 15 from applying to government provisions for the advancement of backward classes; it circumscribed the right to property and validated zamindari abolition by allowing the state to acquire property without paying equitable compensation and ensuring that any law providing for such acquisition could not be deemed void even if it violated the right to property. The final nail in the coffin was the introduction of the Ninth Schedule, where laws could be parked to make them immune to judicial challenge even if they violated the fundamental rights.

Singh foregrounds the discussion by drawing attention to the political climate of the years soon after Independence and the build-up to the passage of the amendment. There is a detailed analysis of how the governments imposition of policies relating to press censorship, enabling caste-based reservations in educational institutions and re-distribution of land were challenged by the affected stakeholders in courts. In all cases relating to press censorship, most notably Brij Bhushan v State of Delhi (1950) and Romesh Thappar v The State of Madras (1950), the judiciary struck down statutes which imposed restrictions on free speech. In Champakam Dorairajan v State of Madras (1951), the Madras High Court, and, later, the Supreme Court declared the Government Order providing caste-based reservations to be unconstitutional.

With elections looming ahead and most of his new schemes being thwarted by the courts, Nehru was convinced that the legal process of testing legislation against the Constitution was delaying his partys social reform agenda. He introduced the First Amendment Bill to the Parliament on May 12. After two weeks of stormy discussions, it was passed on June 2.There are fascinating accounts of the parliamentary debates that raged between Nehru and stalwarts like SP Mookerji, HN Kunzru and Hussain Imam that the author eloquently describes as the first battle of Indian liberalism. These highlight how despite protests by public luminaries, including incumbent governors, jurists and even senior Congress members, the government remained undeterred. The final chapter dwells on the aftermath of the amendment, the most important being that it set a precedent for amending the Constitution to either overturn judicial pronouncements or to suit government agenda.

The book makes it evident that the First Amendment provided the DNA of a Hobbesian state in postcolonial India and laid the foundation of the Nehruvian state. It also lays bare the schisms within the Congress party, the pressure applied on the presidents office to bend to the will of the government, and the ways in which the judiciary was subordinated by the executive. Most importantly, the story also blurs the dichotomies that political analysts slip into: the liberal Nehruvian vision of India versus the RSSs authoritarian one, between progressive and reactionary politics. It leaves us wondering why this story was never told before; is it a mere coincidence or a part of a deliberate political project? The book maintains a dignified restraint in answering this question.

Malini Bhattacharjee is assistant professor, Azim Premji University, Bengaluru

Sixteen Stormy Days: The Story of the First Amendment to The Constitution of India By Tripurdaman SinghPenguin Random House

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COOMBES: Put the First Amendment first – University of Virginia The Cavalier Daily

Posted: at 8:10 am

As bars and restaurants began to reopen this summer, so did religious institutions. The operation of churches posed the issue of remaining in close quarters for extended periods of time in the midst of a pandemic. Last month, Opinion Writer Nicole Chebili argued that the University should cease unconstitutional exemptions for religious gatherings. However, the United States Constitution enshrines the right to free speech, press, assembly, petition and religion. Supreme Court precedent has clearly established that public universities have no exception to these fundamental freedoms.

The freedom of religion has an essential role in United States history, given that the country was founded on that very ideal. This underscores why its so important for the government to uphold religious freedom, especially in times of political unrest and uncertainty. Universities serve to educate the next generation of leaders and must act to protect rather than restrict these freedoms. The First Amendment is often referred to as the first liberty because freedom of thought and belief is thought to be of utmost importance. Diversity of thought and belief should be at the forefront of the learning community at the University.

In this column, Chebili claims that the University should continue to restrict students from going to religious services in Charlottesville. It is important to note that as long as they are not directly affiliated with the University, religious institutions must already follow city ordinances, which require gatherings to remain under 50 people. It is not the Universitys job nor is it the Universitys right to interfere with students' ability to worship. It sets a dangerous precedent to restrict the freedom of religion by any means. The freedom of religion was a founding pillar of our American Democracy and it must be upheld.

Chebili also mentions that online services provide the same quality sermons, community building and worship. This statement lies in direct contradiction to the religious beliefs of many Christians, for example, who place a great importance on worshiping in person. It is indeed not the same to worship online, as in-person fellowship is essential to Christian life, as well as many other religions. Furthermore, it is not the governments right to dictate the means by which its citizens practice religion.

Next, the column claims that protesting is essential and protected under the Constitution, but religious gatherings are not. The right to assemble dually covers protests and gathering for religious reasons. Under her own line of reasoning, religious gatherings are in fact equally essential, and should be regarded as such by the University. Calling for the University to restrict student attendance of any religious service without applying the same standards to protests is blatantly hypocritical.

Recently, students and the University alike have repeatedly called for restrictions to the religious clause of the First Amendment. In another article, students called for the Fellowship of Chiristian Athletes to be disbanded at the University. This is based on the fact that the Fellowship requires students who wish to hold a leadership position to sign a statement of faith that includes the traditional definition of marriage. No matter how some students feel, the University should not restrict religious freedoms and should reject calls to do so. Disagreement with the beliefs of a particular religion does not suddenly grant the University the power to restrict its practice.

Religion is critical to many students on Grounds. There is great diversity in religious organizations, and they provide an essential space for students to practice their religious beliefs. For many, religion is sacred and the opportunity to practice that religion on Grounds is paramount.

It can be difficult to see CIOs promote ideals that one disagrees with. There exist groups like the College Republicans or the University Democrats who highly encourage their members to affiliate with the party. The University is supposed to be a place for intellectual growth and discovery, groups with different opinions on Grounds contribute to and diversify the learning community. The University must not shut down an individual or groups ability to speak or assemble simply because others dont agree with them, on any matter from political speech to religious expression.

Historically, the University has protected and upheld the First Amendment, while other schools have fallen behind the curve, restricting speech with free speech zones. U.Va must continue to lead in this area. It is fitting that the University was founded by Thomas Jefferson, the very man who inspired the Bill of Rights, drafted the Virginia Statute for Religious Freedom and led the charge against the restriction of the church by the state. In keeping with the ideals set forth by Thomas Jefferson, the University must reject calls to restrict the freedom of religion.

Devan Coombes is a Viewpoint Writer for The Cavalier Daily. She can be reached at opinion@cavalierdaily.com.

The opinions expressed in this column are not necessarily those of The Cavalier Daily. Columns represent the views of the authors alone.

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First Amendment Right to Record Child-Protection Visit to Your Home – Reason

Posted: at 8:10 am

From yesterday's Pennsylvania appellate decision in In re Y.W.-B., by Judge Carolyn Nichols, joined by Judges Mary Murray and James Gardner Colins:

Mother and Father are the parents of Y.W.-B., born in June 2012, and N.W.-B., born in January 2015 (collectively, Children). On May 31, 2019, DHS filed the instant petitions to compel Mother's cooperation with a home visit.

In its petitions, DHS [Department of Human Services] alleged, in part, that on May 22, 2019, it received a report that three weeks earlier, the family slept outside a Philadelphia Housing Authority (PHA) office, and that on May 21, 2019, Mother was outside the PHA office from 12:00 p.m. to 8:00 p.m. with a child. The petitions further stated that Mother told a Project Home outreach worker that she was not homeless, but that her previous residence was burned down. According to the petition, it was "unknown if [Mother] was feeding [Children while] she stood outside of the PHA office for extended periods of time." According to the petitions to compel, DHS workers attempted to assess the family's home on the same day it received the GPS report, but Mother and Father refused them entry to the home or access to Children.

The appellate court held that "DHS presented the trial court with probable cause to search Mother's home in support of its petitions to compel cooperation," but vacated a trial court order that "Mother is NOT to record or video" the visit. The court quoted Fields v. City of Philadephia (3d Cir. 2017), which had said:

The First Amendment protects the public's right of access to information about their officials' public activities. It goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, the highest rung of the hierarchy of the First Amendment values, and is entitled to special protection. That information is the wellspring of our debates; if the latter are to be uninhibited, robust, and wideopen, the more credible the information the more credible are the debates.

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.

The court went on to note, relying on Commonwealth v. Bradley (Pa. Super. Ct. May 5, 2020):

"The Third Circuit [in Fields], however, cautioned that all recording was not protected or desirable. 'The right to record police is not absolute. It is subject to reasonable time, place, and manner restrictions.' The court, however, did not address the constitutional limits of this important First Amendment right because the defendants offered no justification for the action. Accordingly, the court noted that no 'countervailing concerns' existed to justify a departure from the general right to free speech under the First Amendment."

In Bradley, this Court addressed such "countervailing concerns" in a case in which the defendant challenged his conviction for defiant trespass for recording in the lobby of a police station in which there was a "no-filming" policy in place. The Bradley Court specifically concluded that the no-filming condition in the lobby passed constitutional muster, reasoning:

"The Commonwealth presents several countervailing concerns to [the a]ppellant's argument that he had an absolute right under the First Amendment to videotape in the Lobby. Principally, the Commonwealth highlights Corporal McGee's testimony that the police department's no-filming condition in the Lobby was based on several reasons: (1) preventing the disclosure of confidential information relating to ongoing investigations discussed within secure areas of the police department; (2) safeguarding the identity of confidential informants and undercover officers; (3) ensuring their safety by preventing the risk of retaliation against them; and (4) ensuring and preserving the privacy of crime victims. Indeed, the trial court found 'Corporal [ ] McGee testified with regard to numerous grounds upon which the no[-]filming policy was based, citing confidentiality and victim safety as fundamental components.' Thus, the restriction or condition at issue is reasonable.

"The no-filming condition applies to all members of the public who visit the Lobby. In other words, members of the public are granted a license to enter and remain in the Lobby, provided that they abide by the condition. Among other things, the no-filming condition ensures the integrity of police investigations and activity. The condition applies only to the Lobby and the interior of the police station, and not to areas outside of the police station, such as steps or entrances. Admittedly, it prohibits only the recording, taping, and photographing within the Lobby. The condition does not bar the use of parchment and quill in the Lobby. It, therefore, is a reasonable restriction under the First Amendment because it is narrowly tailored to serve a significant governmental interest, i.e., to ensure the safety, security and privacy of officers, informants and victims. Moreover, it prevents interferences with police activity. Accordingly, under the circumstances of this case, the recording or filming in the Lobby by members of the public is not a protected activity under the First Amendment."

Fields recognized that "[a]ccess to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, the highest rung of the hierarchy of the First Amendment values, and is entitled to special protection." Although this case involves DHS officials rather than police, and official actions within Mother's home rather than in public, we conclude that First Amendment protections extend to restrictions on "the stock of information from which members of the public may draw" when discussing public issues. Therefore, we conclude that Mother's claim that the trial court improperly curtailed her right to record the DHS officials conducting a home visit is subject to intermediate scrutiny.

In the instant case, there was no evidence of any countervailing interests to support DHS's request for a no-recording provision. See [Transcript] (indicating that the trial court denied DHS's request to recall Ms. Richardson and granted DHS's request for a no-recording provision based on DHS's counsel's assertion that there were "videos, photography taken, posted on social media that made her feel intimidated").

[W]e acknowledge the trial court's concerns regarding the privacy interests of Children. However, our review is necessarily limited to the issue raised in this appeal, specifically, the right to record, under the First Amendment, DHS employees conducting an assessment of a home, and not Mother's posting of such videos on social media. {We add that there were no indications that Mother took videos containing images of Children or DHS employees interacting with the Children during her previous interactions with DHS.}

Therefore, under the specific circumstances of this case, and in light of Mother's and DHS's arguments, we conclude that DHS failed to establish that its request for a no-recording provision was reasonable. We emphasize that our holding does not make the right to record absolute, consistent with established case law, it is subject to reasonable time, place, and manner restrictions.

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First Amendment scholars weigh in on legality of Terminal Tower Biden Harris light display – cleveland.com

Posted: at 8:10 am

CLEVELAND, Ohio Two First Amendment scholars question whether the Biden-Harris light display projected onto Terminal Tower last Tuesday by the United Steelworkers violated city or state law as the the buildings owner contends.

And even if the display did violate local or state laws, the scholars said, the laws might be trumped by First Amendment protections of free speech given the unusual facts of the case that the display amounted to projected light and was in support of political candidates.

Cleveland.com and The Plain Dealer reached out to Kevin ONeill, associate professor at Cleveland State Universitys Cleveland-Marshall College of Law, and Andy Geronimo, a lecturer at Case Western Reserve University School of Law, to examine the debate over the displays legality.

Whats at issue?

The United Steelworkers claimed responsibility for the light display, projected ahead of the debate in Cleveland between President Donald Trump and former Vice President Joe Biden, and referencing Biden and his running mate, former Sen. Kamala Harris. The union also contends the display was legal.

Doug Price, CEO of the management group that owns Terminal Tower, told cleveland.com that the United Steelworkers projected the display without his companys permission and that city prosecutors subsequently provided him with three laws that prohibit such displays.

Prices company, K&D Management, cited those laws in a cease-and-desist letter sent to the union. They are:

*A city prohibition against posting or sticking any advertisement, poster, sign or handbill or placard of any description on any private building or structure without the owner or occupants permission. It also prohibits printing, marking, writing, printing or impressing or in any manner attach[ing] any notice or advertisement or the name of any commodity or thing or any trademark, symbol or figure of any kind upon anothers property without permission.

*A city criminal mischief law that, in part, prohibits people from moving, defacing, damaging, destroying, or otherwise improperly tampering with anothers property.

*A state law that requires most political communications to clearly identify the entity that issued them.

Cleveland.com and The Plain Dealer shared the three laws with Geronimo and ONeill.

What does Geronimo say?

Geronimo said the city laws K&D cited do not neatly address light projections such as the one displayed on Terminal Tower, and the incident demonstrates the difficulty of applying these ordinances to this kind of action.

The two city laws might not hold up in court because a judge might question whether the intangible nature of light is actually covered by those laws, which seem intended to address the physical overtaking of the building in a way thats irreversible.

Because this is light, its hard to say its damaging or destroying the building, he said. It is a very nuanced problem, and the laws as written now, and as courts have engaged with applying these laws, dont fit neatly to this problem.

The city could better address the issue by passing another law or amending current law to specifically include non-permanent light displays. But such a law would need to be crafted with First Amendment protections in mind, because it would be regulating free speech.

More generally, First Amendment violations would come into play if the police, a court or the city had tried to stop the union from displaying its message.

If K&D filed a nuisance or trespassing lawsuit against the union, the union might be able to successfully use its First Amendment protections as a defense.

In that case, the projectionist might say I have a free speech right and the state shouldnt use its power to order me to stop doing this under threat of criminal or civil penalty.

A constitutional question might also arise if police try to stop the projectionist while the projectionist is standing on public sidewalks or streets, which are often considered public forums.

If the projectionist was standing on private property, however, the owner of that property could report it to police as a trespassing complaint, which would allow police to legally remove the projectionist.

(A Steelworkers spokeswoman previously told cleveland.com she was unsure where the projectionist was standing when shining the light on Terminal Tower. Price previously told cleveland.com it appeared the source of the light was from one of the bridges over the Cuyahoga River.)

What does ONeill say?

I dont think a judge would see a problem with this, he said. If there were a [local law prohibiting this, the law] might be unconstitutional under the First Amendment. Whats the harm? Its simply the expression of light onto a faade.

ONeill noted that hes never encountered a First Amendment court challenge specifically related to light projections. But the first thing a lawyer or judge would want to know when considering such a case is whether a local ordinance prohibits the practice. If there isnt one, the light display would not be illegal.

If a local ordinance is in place, one would have to determine whether that law is unconstitutional, because it might very well be hard for the government to justify under existing First Amendment law.

To be considered constitutional, the local ordinance would likely need to be content-neutral, narrowly tailored to achieve a substantial government interest and also leave open ample alternative channels for communicating the message.

If Cleveland had a law specifically prohibiting the projection of a message or image onto a building, theres a chance a court would uphold it as constitutional, he said.

But theres also a chance a court would say such a law wasnt narrowly tailored, or that it takes away a novel method of expression that doesnt harm the public and, theres no significant or even important governmental interest that would be served by banning such expression.

What does the city say?

Cleveland spokeswoman Latoya Hunter Hayes did not respond to questions from cleveland.com and The Plain Dealer seeking confirmation that city prosecutors had provided Price with laws applicable to the case of the light display on Terminal Tower.

In an email, Hunter Hayes said only that projecting a light display sign on anothers property without the property owners permission, and without a permit when required, would violate city laws governing signs.

Obtaining a permit is the responsibility of a property owner, she said, but did not say whether a permit would have been needed by the United Steelworkers.

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Use of Trademarks in Creative Works & Lanham Act Liability – The National Law Review

Posted: at 8:10 am

After the debut of hit showEmpire, record label Empire Distribution asserted trademark infringement counterclaims against Twentieth Century Fox Television, who sought a declaratory judgment that its television show and associated music releases did not violate Empire Distributions trademark rights. InTwentieth Century Fox TV v. Empire Distribution, Inc., 875 F.3d 1192 (9th Cir. 2017), the Ninth Circuit affirmed the district courts finding that the First Amendment protected Foxs use of the name Empire for an expressive, creative work and ancillary works. In doing so, the appellate panel reaffirmed First Amendment protection for use of marks in creative works where the use of the mark bears some artistic relevance to the underlying work and does not explicitly mislead consumers.

Founded in 2010, Empire Distribution is a record label that records and releases albums in the urban music genre, which includes hip hop, rap, and R&B. In 2015, Fox premiered Empire, a dramatic television series about a fictional New York-based hip-hop record label, and the storylines that revolve around its inception, founding members, executives, and artists. The show features songs in every episode, some of which are original, and Fox contracted with Columbia Records to distribute the music in the show under theEmpirebrand. After receiving several threatening letters from Empire Distribution about Foxs use of the Empire name, Fox filed a declaratory judgment action seeking a determination that itsEmpireshow, its associated music releases, and affiliate merchandise did not violate Empire Distributions trademark rights. Empire Distribution counterclaim for trademark infringement, unfair competition, and false advertising. The fight centered on whether Foxs creative work, which utilized the protected name and trademark of Empire Distribution, was exempt from the Lanham Act as a First Amendment expression.

When it comes to First Amendment protections for trademark use, the discussion must start with the test expounded by the Second Circuit inRogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989). Courts generally apply theRogerstest in determining whether an expressive work runs afoul of the Lanham Act where the public interest in avoiding consumer confusion outweighs the public interest in free expression. Pursuant toRogers, use of anothers trademark or protected identifying material in an expressive work does not violate the Lanham Act unless the use has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless it explicitly misleads consumers as to the source or content of the work.

Analyzing the first prong, the Ninth Circuit found Fox used the word Empire for artistically relevant reasons because the show was set in New York, the Empire State, and its subject matter is a music and entertainment conglomerate. The court rejected Empire Distributions contention that for a use to have an artistic relevance it must refer to the owners mark, in this case Empire Distribution, holding that supporting the themes and geographic setting of the work was sufficient to satisfy the first prong of theRogerstest, which simply requires minimal relevance.


Turning to the second prong, the Ninth Circuit found Foxs use of the titleEmpiredid not explicitly mislead consumers. Absent an explicit indication, overt claim, or explicit misstatement that causes such consumer confusion, the second prong of theRogerstest will be satisfied. SinceEmpiredid not mislead consumers into believing it was produced or created by Empire Distribution, the Court affirmed the lower courts grant of summary judgment in favor of Fox.

Tucked away in the Ninth Circuits decision is the acknowledgment that not only is an expressive work protected from trademark infringement liability if it passes theRogerstest, but also are similarly branded ancillary promotional activities and commercial products based on the expressive work. So as long as the attendant commercial use is auxiliary to the expressive work and not explicitly misleading, it falls within the protective umbrella. Thus, Fox can sellEmpirebranded CDs, t-shirts, and music, as well as put on and promoteEmpireconcerts without infringing on Empire Distributions exclusive rights to use the Empire name in conjunction with those goods and services. Although the Ninth Circuits decision may be a significant victory for Fox and other creators of expressive works, brand owners will likely see this decision as a setback to trademark enforcement and an expansion of theRogerstest. With bated breath, we anticipate how other courts apply and expound onRogersin light of the Ninth Circuits decision, and whether the Supreme Court will weigh in on the topic.

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‘Introduction to the First Amendment Museum’ topic of presentation – Kennebec Journal & Morning Sentinel

Posted: at 8:10 am

The Kennebec Historical Societys October Facebook Live presentation, Introduction to the First Amendment Museum, will begin at 6:30 p.m. Wednesday, Oct. 21, according to a news release from Scott R. Wood, the societys administrative director.

The video also will be available to watch later if preferred. Those who have a question for the Q&A can submit it in the comments on this event, or comment with it during the live video presentation. Here is the link to the KHS Facebook page: facebook.com.

In 1789, James Madison penned the First Amendment protecting our freedoms of religion, speech, press, assembly and petition. A century later, WH Gannett of Augusta, Maine, used those freedoms to publish Comfort magazine, the first American magazine to reach 1 million paid subscriptions. His son, Guy Gannett, expanded the business to become Gannett Communications and became Maines most celebrated publisher, establishing newspaper, radio and tv brands we still recognize today.

Now, a century after Guy published his first newspaper, his granddaughters are building a museum in his former home on State Street. Join new CEO Christian Cotz as he explores the history of Madison, the First Amendment, and the Gannett family, and shares the latest developments in the evolution of the First Amendment Museum.

According to the release, Cotz was hired to be the CEO at the First Amendment Museum in January. Before that, he spent 20 years managing public programming at James Madisons Montpelier in central Virginia. He was deeply involved in Montpeliers relationship-building work with the descendant community, and was the project director for the celebrated exhibition, The Mere Distinction of Colour, which won six national museum awards.

For more information about the program, call Wood at 207-622-7718.


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Judge amy coney barrett and the First Amendment – Lexology

Posted: at 8:10 am

The nomination of fellow Notre Dame Law alum Judge Amy Coney Barrett has generated considerable controversy. Some of that is related to the process. There are those who feel that the winner of November 3ds Presidential election should make the nomination. That appeared to be the unwritten rule in 2106 when President Obama nominated Judge Merrick Garland, only to see the Senate sit on their collective hands and not conduct a hearing, given the (sort of) pending 2016 election. Apparently, at some point between 2016 and 2020, there was an unwritten amendment to the unwritten rule, such that it is all of a sudden vitally important to confirm Judge Barrett ASAP.

And aside from the procedural controversy, progressives are concerned with Judge Barretts expressed views on abortion and gun control. Given that her appointment will leave the court in a 6-3 conservative versus progressive split, one can understand the concern coming from that side of the aisle.

But Ive been wondering about how Judge Barrett might view the First Amendment and other matters that might affect the journalists I work with. So I was pretty excited when I saw this headline: Would Justice Amy Coney Respect Press Freedom? I was hoping it would shed light on the subject. Unfortunately, it really didnt. The premise is essentially that President Trump appointed her, and President Trump hates the press, so look for anti-press rulings.

A more accurate assessment comes from The Institute for Free Speech. And their report is that she is really a blank slate. Shes been a Judge on the Seventh Circuit Court of Appeals since 2017, and in that time has apparently not written on the issue. It appears that she didnt weigh in as an academic either.

I do think there are some pressing issues in the First Amendment world, not the least of which is the future of New York Times v. Sullivan the 56 year old precedent that is the foundation for First Amendment jurisprudence in the world of journalism. Judge Barretts former boss, Justice Antonin Scalia was not a fan of the holding, nor is Justice Thomas.

So, it might be nice to ask Judge Barrett in her confirmation hearing just what she thinks about the holding in that case. Was it correctly decided? If not, why not? And what should the court have done?

If a future court were to overrule Sullivan, the fallout would be tremendous. We have a right to know where she stands on this.

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A vote for Trump is a vote against the First Amendment – Poughkeepsie Journal

Posted: at 8:10 am

The President of the United States our role model, our leader, the most powerful man in the world stood in front of a throng of people on a recent September evening in Minnesota, riffing like a comedian.

Wasnt it a beautiful sight, he said.

Donald John Trump was describing the fact that police officers at a demonstration protesting the killing of George Floyd had fired into the crowd and unknowingly hit prominent MSNBC broadcaster Ali Veshi in the knee with a rubber bullet. Veshi was covering the rally, a protected freedom of assembly event, and was retreating from police and the front lines when he was shot.It is why we have journalists: they go where we cannot sometimes dangerous places and report back to us.

Beautiful, the President said. It's called law and order."

And the crowd cheered his remarks.They cheered the shooting of an American journalist. A few days later at another rally, he repeated the refrain: Seeing the reporter thrown aside. like he was a little bag of popcornits a beautiful sight.

President Donald Trump speaks to supporters during a rally.(Photo: [Lucy Schaly/for BCT])

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No wonder that at Trump rallies his minions can be seen wearing no masks but t-shirts emblazoned with, Rope, tree, journalist. Some assembly required. He eggs them on. He exhorts them to taunt and threaten the fake news purveyors.

Of course, to Trump fake news is simply anything that is critical, that puts him in a bad light or doesnt agree with whatever lies he floats from a disappearing virus to the myth of his business acumen. It is the hallmark of authoritarians, dating back to the Kings of Europe who would cut off the hands of disliked writers.

When allowed, I wrote in this space in September 2018, the authoritarians, the unscrupulous in power, will try to meddle, control, block and suffocate dissent and disagreement.When you expose or criticize or give space to the opposition, you must be the enemy.

The President of the United States, running for re-election on Nov. 3, was in quarantine this week, and we wish him and his family well.But the fact of the matter still remains: He is the worst and most dangerous First Amendment President America has ever seen. He has offered a treasure trove of material for people like me who write about freedom of speech.

But for the Constitution and democracy he is a menace, failing to understand why the Framers put these protections in writing in 1791, four years after actually adopting a constitution.They knew autocrats, like Trump, would try to drown out opposition parties and shut down anyone who got in the way of their holding power. Lock up those pesky reporters and broadcasters!

As the election nears Ive looked back over the 45 free speech columns I have written since Trump was elected, and they document a growing menace, a brooding and petulant man who, as Pulitzer Prize-winning journalist Bernard Stein told me, doesnt seem to have any grasp of the prohibitions (on his power). He just chafes against them. It is not a good thing to have authoritarian impulses. If your reaction is to put your fingers in your ears, you are missing something valuable.

What he is missing is the heartbeat of democracy: a civil debate on the problems that confront us and discussion of how to deal with them.

The first maxim of the First Amendment is that people can peaceably gather.Its their chance to yell at City Hall, to protest police practices, to complain they dont like to be told to wear masks or squawk that the Presidents maskless rallies are spreading the virus. Take to the public square and vent your spleen!And the government cannot stop you based for dislike of your speech.

Pulitzer Prize-winning editor Geneva Overholser told me the Presidents attitude toward free speech and press was truly scary.And she is right because as I wrote in July 2019, When the First Amendment to the Constitution was adopted in 1791, one of the major concerns was to find a way to stop the central governmental authorities from controlling our speech, in essence, from trying to control our thoughts.Think it, say it, publish it and you are protected. No Big Brother can stop you.

But Big Brother Trump doesnt get it. This President will kick you out of the square if you dissent from his view of the world, like the football players who kneeled in silent protest at police brutality.He doffed his presidential cap to the white nationalists but declined to support peaceful protests of racism.Until a federal judge reminded him that the First Amendment doesnt allow censorship of critics, he tried to block opponents on his Twitter page.

And dont you dare let him hear about his mistakes, if youre a reporter.The Saudis can assassinate Washington Posts Jamal Khashoggi, but dont dare ask an impudent question at a press conference, especially if you are woman.Off to the Gulag!

The atmosphere of hate against the press has been caused by Trump.When you repeatedly call a treasured, protected institution an enemy of the people, you lay the seeds for attacks on the press. When you constantly demean reporters, impugn their integrity, point at them at rallies so they can be jeered and go to war with them beyond the expected adversarial relationship you invite violence.

Trump just has never gotten it that the press was never meant to be his arm; it is the peoples arm.

And dont get me wrong, as I wrote in July 2018: The Fourth Branch of government needs to be held accountable, as do all American institutions. A little tongue-lashing is a good thing.But when it comes from the President, when it refuses to recognize the role the press plays as glue and lubricant in democracy and when it seeks to undermine the legitimacy of the institution of journalism, it is beyond worrisome it reeks of dangerous authoritarianism.

But that is what we have: a dangerous authoritarian who seeks to stifle dissenting voices, intimidate critics, discredit the press, hide his personal and governmental activities even during his health crisis and ignore that the Constitutions First Amendment insures that a democratic society have uncensored debate and discussion in order to be self-governing.

When you use the bully pulpit to promote a climate of violence against one of the most vital institutions protecting our liberties, you need to be held accountable. And you need to be denied that bully pulpit.I wrote those words in July of 2018. Now the time has come:Throw the bully, Donald John Trump, out of the pulpit.

Rob Miraldis writings on the First Amendment have won numerous state and national awards.He teaches journalism at SUNY New Paltz. Twitter @miral98 and e-mail miral98@aol.com.

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Trump Admin. Says First Amendment Is Moot In WeChat Case – Law360

Posted: at 8:10 am

Law360 (October 7, 2020, 6:37 PM EDT) -- The U.S. government should be able to limit any service that poses a threat to the country's national security, whether or not that company facilitates communications, the Trump administration has argued in its bid to ban WeChat in the U.S.

In a Tuesday court filing, the administration told a California federal judge that the simple fact that Tencent-owned WeChat is a mobile communications app doesn't entitle the company to First Amendment protection orpreclude the government from cracking down on it for national security purposes.

"Were Tencent to sell electricity to U.S. consumers and, in so doing, systematically collect and send payment...

In the legal profession, information is the key to success. You have to know whats happening with clients, competitors, practice areas, and industries. Law360 provides the intelligence you need to remain an expert and beat the competition.


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You Shouldn’t Get Sued for Petitioning the Government – Cato Institute

Posted: at 8:10 am

It is the right of all citizens to petition the government without fear of punishment or retaliation. This is not only an essential individual right, but often necessary for the government to remain informed and make better decisions. Yet, when Maggie Hurchalla reached out to her county commissioners about adevelopment plan and expressed her environmental concerns about the project, she was hit with alawsuit.

Ms. Hurchalla is an environmental activist in Florida. She heard that the Lake Point development project may not be meeting environmental standards and emailed the county commission responsible for supervising the project. The county had already heard similar concerns and had initiated an investigation, which ultimately ended the project. In response, Lake Point sued everyone. The developer sued the county for stopping the development and Ms. Hurchalla for tortious interference in its business. The suit dragged on for years in Florida courts, culminating in amultimilliondollar judgment against Ms. Hurchalla.

The case should not have gotten that far. This was aStrategic Lawsuit Against Public Participation (SLAPP) suit. Under the First Amendment, citizens have aright to petition the government for redress of grievances without fear of retaliation. The petitioning action does not need to be accurate, articulate or relevant. Private parties, however, often have vested interest in certain speech not being heard. SLAPP suits are tools that use the power of the courts to discourage speech.

Courts have mechanisms for throwing out frivolous claims, but SLAPP suits are often disguised as serious claims and evade these procedures. Win or lose, SLAPP suits often drag on, exhausting the bank accounts of private citizens and provoking the stress of apotential disastrous judgment. For this reason, many states have developed antiSLAPP statutes that allow courts to stop these suits in their infancy, but theyre not failsafe, as with this case.

Having exhausted her appeals in the Florida courts, Ms. Hurchalla has now filed apetition to have her case heard by the U.S. Supreme Court. Cato has now joined the Protect the Protest Task Force and Institute for Justice on an amicus brief supporting her petition. We argue that the Court should apply aline of cases, developed in other business law SLAPP contexts, to SLAPP suits based on tortious interferenceand that Lake point used the power of the court to discourage speech to government officials in violation of the First Amendment.

The Supreme Court will decide later this fall whether to take up Hurchalla v. Lake Point Phase I, LLC.

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