Monthly Archives: January 2021

Twitters banning of Trump an action also taken by other social media platforms, including Facebook, Instagram, YouTube and Snapchat has opened a fierce debate about freedom of expression and who, if anyone, should control it in the United States.

Ive written and taught about this fundamental issue for decades. Im a staunch proponent of the First Amendment.

Yet Im perfectly OK with Trumps ban, for reasons legal, philosophical and moral.

To begin, its important to point out what kind of freedom of expression the First Amendment and its extension to local government via the Fourteenth Amendment protect. The Supreme Court, through various decisions, has ruled that the government cannot restrict speech, the press and other forms of communications media, whether its on the internet or in newspapers.

Twitter and other social media platforms are not the government. Therefore, their actions are not violations of the First Amendment.

But if were champions of freedom of expression, shouldnt we nonetheless be distressed by any restriction on communication, be it via a government agency or a corporation?

I certainly am. Ive called nongovernmental suppressions of speech to be violations of the spirit of the First Amendment.

Every time CBS bleeps a performance of a hip-hop artist on the Grammys, the network is, in my view, engaging in censorship that violates the spirit of the First Amendment. The same is true whenever a private university forbids a peaceful student demonstration.

These forms of censorship may be legal, but the government often lurks behind the actions of these private entities. For example, when the Grammys are involved, the censorship is taking place out of fear of governmental reprisal via the Federal Communications Commission.

So, why, then, am I OK with the fact that Twitter and other social media platforms took down Trumps account? And, while were at it, why am I fine with Amazon Web Services removing the Trump-friendly social media outlet Parler?

First, a violation of the spirit of the First Amendment is never as serious as a violation of the First Amendment itself.

When the government gets in the way of our right to freely communicate, Americans only recourse is the U.S. Supreme Court, which all too often has supported the government wrongly, in my view.

The courts 1919 clear and present danger and 1978 seven dirty words decisions are among the most egregious examples of such flouting of the First Amendment. The 1919 decision qualified the crystal-clear language of the First Amendment Congress shall make no law with the vague exception that government could, in fact, ban speech in the face of a clear and present danger. The 1978 decision defined broadcast language meriting censorship with the even vaguer indecency.

And a government ban on any kind of communication, ratified by the Supreme Court, applies to any and all activity in the United States period until the court overturns the original decision.

In contrast, social media users can take their patronage elsewhere if they dont approve of a decision made by a social media company. Amazon Web Services, though massive, is not the only app host available. Parler may have already found a new home on the far-right hosting service Epik, though Epik disputes this.

The point is that a corporate violation of the spirit of the First Amendment is, in principle, remediable, whereas a government violation of the First Amendment is not at least not immediately.

Second, the First Amendment, let alone the spirit of the First Amendment, doesnt protect communication that amounts to a conspiracy to commit a crime, and certainly not murder.

I would argue that its plainly apparent that Trumps communication whether it was suggesting the injection of disinfectant to counteract COVID-19 or urging his supporters to fight to overturn the election repeatedly endangered human life.

Given that Trump was still president albeit with just a few weeks left in office when Twitter banned him, that ban was, indeed, a big deal.

Jack Dorsey, co-founder and CEO of Twitter, appreciated both the need and perils of such a ban, tweeting, This moment in time might call for this dynamic, but over the long term it will be destructive to the noble purpose and ideals of the open internet. A company making a business decision to moderate itself is different from a government removing access, yet can feel much the same.

In other words, a company that violates the spirit of the First Amendment can feel much the same to the public as government actually violating the First Amendment.

To be sure, I think its concerning that a powerful cohort of social media executives can deplatform anyone they want. But the alternative could be far worse.

Back in 1998, many were worried about the seeming monopolistic power of Microsoft. Although the U.S. government won a limited antitrust suit, it declined to pursue further efforts to break up Microsoft. At the time, I argued that problems of corporate predominance tend to take care of themselves and are less powerful than the forces of a free marketplace.

Sure enough, the preeminent position of Microsoft was soon contested and replaced by the resurgence of Apple and the rise of Amazon.

Summoning the U.S. government to counter these social media behemoths is the proverbial slippery slope. Keep in mind that the U.S. government already controls a sprawling security apparatus. Its easy to envision an administration with the ability to regulate social media not wielding that power to protect the freedoms of users but instead using it to insulate themselves from criticism and protect their own power.

We may grouse about the immense power of social media companies. But keeping them free from the far more immense power of the government may be crucial to maintaining our freedom.

Excerpt from:
I'm a First Amendment scholar and I think Big Tech should be left alone - The Conversation US

The start to 2021 has not been any good indicator that this year will be anything more than an even more terrible sequel to 2020. Both sides of the aisle are fighting back, and actions are ever more favored than words. Large media corporations silence anyone who disagrees with them, and many politicians say one thing to earn votes and then do the opposite once they are in office. It does in fact feel as though we have lost our outlet to express ourselves in a meaningful and constructive way. We see provocative news stories of impending doom and violent outbursts. We are inundated with despair and shock at what is happening to our country, regardless of what our political beliefs happen to be.

The Founding Fathers issued the First Amendment not only as a law to be upheld by our government but also as a standard to guide every American throughout their lives. Speak out, and allow others to speak. Hold true to your beliefs, and permit others to hold theirs. This right is our first, and in my honest opinion, our strongest defense against tyranny and injustice.

Thankfully, it has not been and truly never can be stolen away from the masses. Though you may not be a Shakespeare or Seuss, you still possess the ability to write out your thoughts effectively and persuasively. Speak out online, in newspapers and in public. Engage with your state and local politicians: your senators, representatives, governor, mayor whoever is willing to listen. Let them know what you want from them and the actions you believe they should take. It is politicians duty to listen to their constituents, and it is our civic duty to speak when we perceive any form of injustice.

Tanner Engles is a junior majoring in computer science.

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Letter to the editor: Put the First Amendment first - Daily Mississippian

When Thomas Jefferson wrote the Declaration of Independence, he included in it a list of the colonists grievances with the British government. Notably absent were any complaints that the British government infringed upon the freedom of speech.

In those days, public speech was as acerbic as it is today. If words were aimed at Parliament, all words were lawful. If they were aimed directly and personally at the king as Jeffersons were in the Declaration they constituted treason.

Needless to say, Jefferson and the 55 others who signed the Declaration would all have been hanged for treasonous speech had the British prevailed.

Of course, the colonists won the war, and, six years afterward, the 13 states ratified the Constitution. Two years after ratification, the Constitution was amended by adding the Bill of Rights. The first ratified amendment prohibited Congress from doing what the colonists never seriously complained about the British government doing infringing upon the freedom of speech.

James Madison, who drafted the Bill of Rights, insisted upon referring to speech as the freedom of speech to emphasize that it preexisted the government. If you could have asked Madison where he believed the freedom of speech came from, hed have said it was one of the inalienable rights Jefferson wrote about in the Declaration.

Stated differently, each of the signatories of the Declaration and ratifiers of the Bill of Rights manifested in writing their unambiguous belief that the freedom of speech is a natural right personal to every human. It does not come from the government. It comes from within and cannot be taken away by legislation or executive command.

Yet, a mere seven years later, during the presidency of John Adams, Congress enacted the Alien and Sedition Acts, which punished speech critical of the government.

So, how could the same generation in some cases the same human beings that prohibited congressional infringement upon speech have enacted a statute that punished speech?

To some of the framers the Federalists who wanted a big government as we have today infringing upon the freedom of speech meant silencing it before it was uttered. Today, this is called prior restraint, and the Supreme Court has essentially outlawed it.

To the antifederalists or Democratic-Republicans, as they called themselves the First Amendment prohibited Congress from interfering with or punishing any speech.

Adams Department of Justice indicted, prosecuted and convicted antifederalists for their public speech critical of the government.

When Jefferson won the presidency and the antifederalists won control of Congress, the Federalists repealed the speech suppression parts of the Alien and Sedition Acts on the eve of their departure from congressional control, lest it be used against them.

During the Civil War, President Abraham Lincoln locked up hundreds of journalists in the North who were critical of his war efforts. During World War I, President Woodrow Wilson whom my alma mater, Princeton University, is trying to erase from its memory arrested folks for reading the Declaration of Independence aloud and singing German beer hall songs.

Lincoln argued that preserving the Union was more important than preserving the First Amendment, and Wilson argued that the First Amendment only restrained Congress, not the president. Both arguments have since been rejected by the courts.

In the 1950s, the feds successfully prosecuted Cold War dissenters on the theory that their speech was dangerous and might have a tendency to violence. Some of the victims of this torturous rationale died in prison.

The governments respect for speech has waxed and waned. It is at its lowest ebb during wartime. Of course, dissent during wartime which challenges the governments use of force to kill is often the most important speech.

The speech we love needs no protection. The speech we hate does. The government has no authority to evaluate speech. As the framers understood, all people have a natural right to think as we wish and to say and publish whatever we think. Even hateful, hurtful and harmful speech is protected speech.

Yet, in perilous times, such as the present, we have seen efforts to use the courts to block the publication of unflattering books. We have seen state governors use the police to protect gatherings of protesters with whose message they agreed and to disburse critical protesters. We have seen mobs silence speakers while the police did nothing.

And in perilous times, such as the present, we have seen Big Tech companies silencing their opponents. I hate when they do that, but they have every right to do so. They own the bulletin board. Twitter and Facebook can ban any speech they want because they are not the government. And the First Amendment only restrains the government. In the constitutional sense, free speech means only one thing free from government interference.

Punishing speech is the most dangerous business because there will be no end. The remedy for hateful or threatening speech is not silence or punishments; it is more speech speech that challenges the speaker.

Why do government officials want to silence their opponents? They fear an undermining of their power. The dissenters might make more appealing arguments than they do. St. Augustine taught that nearly all in government want to tell others how to live.

How about we all say whatever we want and the government leaves us alone?

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Napolitano: Does the First Amendment restrain Big Tech? - Daily Herald

The Ohio Supreme Court just granted review inM.R. v. Niesen, on the question whether "when a lower court imposes a prior restraint on expression, immediate appellate review is required." (The underlying case involves a Cincinnati policeman who sued for libel over a post that accused him "of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the 'ok' sign at a City Council meeting held to address concerns by those in the Black Lives Matter Movement." The judge responded by issuing apreliminary injunction ordering the defendants not to "publiciz[e], through social media or other channels, Plaintiff's personal identifying information," which apparently includes the policeman's name.)

I think the answer is yes, given the National Socialist Party of Am. v. Village of Skokiecase. With the indispensable help of our excellent pro bono counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson), the UCLA First Amendment Clinic had filed an amicus brief supporting that position and arguing that the court should hear the case, on behalf of Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O'Neill, Margaret Christine Tarkington, Aaron H. Caplan; the National Writers Union, the Society of Professional Journalists, the NewsGuild-CWA, Euclid Media Group; and me. Here's the heart of our argument (which I expect we'll also resubmit as a merits-stage brief to the court, now that it has agreed to consider the merits):

{The plaintiff, a police officer, sued the defendants, Ohio citizens who criticized his on-duty conduct providing security at a City Council meeting at Cincinnati City Hall. The complaint raised a defamation claim and other similar tort claims. Less than two days after filing the complaint, after a hearing at which the defendant-appellants were present and at which the plaintiff presented no testimony, the court issued an order that "enjoined" the appellants "from publicizing, through social media or other channels, Plaintiff's personal identifying information." The order did not define "personal identifying information," but the only statute that defines the phrase, R.C. 2913.49(A), defines it to include a person's "name."}

Within 48 hours of filing his complaint, [plaintiff] sought and received a sweeping prior restraint: an order forbidding two Ohio citizens from publishing information about a public official arising out the performance of his official duties. That order, like all prior restraints, is presumptively unconstitutional. But when those citizens, Julie Niesen and Terhas White, appealed that order to the First District, the appellate court dismissed the appeal, concluding that there was no final order.

That dismissal was wrong, and there are at least four reasons why this case presents substantial constitutional questions and issues of public or great general interest.

[A.] The order is a prior restraint of the appellants' free-speech rights.

"The term 'prior restraint' is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, 25(some quotation marks omitted). "Temporary restraining orders and permanent injunctionsi.e., court orders that actually forbid speech activitiesare classic examples of prior restraints." Id.(quotation marks omitted). "It is inescapable that a regulation of speech 'about' a specific person . . . is a regulation of the content of that speech and must therefore be analyzed as a content-based regulation." Bey at 33.

"[B]efore a court may enjoin the future publication of allegedly defamatory statements based on their content, there must first be a judicial determination that the subject statements were in fact defamatory." Bey at 44(citing O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 246, 327 N.E.2d 753 (1975)). Likewise, a court may enjoin speech that falls within some other exception only after "there has been" a "judicial determination that future postings" by the plaintiffs will fit within that exception (in Bey, this was the "speech integral to criminal conduct" exception). Id. at 45, 47.

The court below forbade Ms. Niesen and Ms. White from mentioning the name of a public official (police officer "M.R.") in any forum or medium, and it thus is a content-based order. This was a decision made by one judge, without the opportunity for a full trial or even comprehensive briefing, less than 48 hours after the complaint was filed, and it thus was not made after judicial determination that the statements were in fact defamatory. Nor is the order limited to forbidding libelous speech, speech that constitutes true threats, or speech that falls into any other First Amendment exception, such as the exception for intentional incitement of imminent and likely criminal conduct, see Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). It thus does not satisfy the requirement of falling outside the protection of the First Amendment.

The order prohibits speech that is fully protected by the First Amendment and by Art. I, 11 of the Ohio Constitution. It has no expiration date. The order is a prior restraint of the appellants' speech. And "Prior restraints on First Amendment expression are presumptively unconstitutional." Bey at 60. Cases seeking review of presumptively unconstitutional orders restraining speech are the epitome of cases raising substantial constitutional questions.

[B.] The prior restraint impinges upon the public's rights.

The First Amendment protects not only the rights of speakers, but also the rights of listeners. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 609 (1976)(Brennan, J., concurring) ("[I]t is the hypothesis of the First Amendment that injury is inflicted on our society when we stifle the immediacy of speech.") (emphasis added); McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir. 2015) (anti-libel injunction has "the potential to harm nonparties to the litigation because enjoining speech harms listeners as well as speakers.").

Prior restraints always interfere with the public's constitutional right to listen, but this particular prior restraint also interferes with the public's constitutional right to accessincluding to listen to accounts ofcourt proceedings. That right is well-established. See In re T.R. (1990), 52 Ohio St.3d 6, 16 n.9 (adult civil and criminal proceedings are "presumptively open to the public"); State ex rel. The Repository v. Unger (1986), 28 Ohio St. 3d 418, 421 (both pre-trial and trial proceedings are open to the public); Sup.R. 45(A) (case documents are open to the public). This order interferes with that constitutional right because it prohibits the defendants from discussing the plaintiff by name when talking about this litigation.

The public also has a right (and indeed, a duty) to supervise and scrutinize public officials regarding the performance of their official duties. That is true generally, but this Court has said that it is particularly true when the public official is a police officer and when the conduct being discussed is his participation in court proceedings. See Soke v. Plain Dealer (1994), 69 Ohio St.3d 395, 397.

The order in this case thus represents a constitutional quadruple-whammy: by allowing the public official here to surreptitiously use the Ohio courts to immunize himself from such public scrutiny, the order has interfered with the appellants' speech rights generally; interfered with the public's right to listen to speech on matters of public interest; interfered with the public's right and duty to supervise the proceedings of the state court system that dispenses justice in their name; and interfered with the public's right and obligation to supervise public officials' performance of their official duties. The First Amendment does not permit this type of speech restriction.

[C.] The dismissal order elevates state civil procedure rules over the First Amendment and form over substance.

Because of all the foregoing constitutional problems, the U.S. Supreme Court has held that prior restraints must be subject to immediate appellate review. National Socialist Party of America v. Skokie, 432 U.S. 43 (1977). But the Court of Appeals refused to follow this precedent, explaining its decision to disregard the U.S. Supreme Court's command by saying that it viewed the order as just a "temporary restraining order," and not a preliminary injunction.

That refusal raises yet another substantial constitutional issue. Constitutional rights, including the First Amendment precedents requiring immediate appellate review of prior restraints, apply regardless of state-law distinctions between TROs and preliminary injunctions. Holding otherwise would permit state law (or, more precisely, state court rules) to dictate the applicability of federal constitutional law. That would wrongly elevate state-law form over federal substance, turning the Supremacy Clause on its head. See U.S. Const., art. IV, cl. 2 (federal Constitution and laws "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding"). Federal law controls over state procedure; not the other way around.

Moreover, the First District's reliance on the supposed status of the prior restraint as a TRO was an inaccurate elevation of form over substance. This Court recently (and unanimously) recognized that TROs can be "classic examples of prior restraints." Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, 25. The immediate appealability of the order therefore does not depend at all on whether the order was a TRO, a preliminary injunction, or anything else.

{And, though it does not matter to the constitutional issue, the appellate court's conclusion that the order was a TRO and not a preliminary injunction is likely incorrect. The order is properly seen as a preliminary injunction because it was not granted ex parte, cf. Civ.R. 65(A) ("A temporary restraining order may be granted without written or oral notice... ."), and, as the Court of Appeals observed at 10, the duration of the order "extended . . . past the expiration of the period set forth in Civ.R. 65 for a temporary restraining order." See id. (limiting TRO to 14 days plus one like extension for good cause; the order here was journalized in July and apparently was intended by the common pleas court to remain in effect at least until September 1).}

[D.] The dismissal order created a split between appellate districts.

Even if the First District's dismissal order had no constitutional implications, it would warrant review and correction by this Court because it created a district split. The First District below held that the First Amendment offers no right to immediate appellate review of an ostensible temporary restraining order. M.R. v. Niesen, 1st Dist. No. C-200302 at 1 (Sept. 9, 2020).

But the Second District has held that "Because the right of free speech must be protected against the chilling effect resulting from even its temporary infringement, the United States Supreme Court held in [Nat'l Socialist Party] that: 'If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, including immediate appellate review. . . .'" Int'l Diamond Exch. Jewelers, Inc. v. U.S. Diamond & Gold Jewelers, Inc., 70 Ohio App. 3d 667, 671, 591 N.E.2d 881, 884 (2d Dist. 1991) (citations and some internal markup omitted; emphasis in original). And "Given that an immediate appellate forum for review of an order that imposes a prior restraint upon the exercise of free speech is necessitated by the federal Constitution," an appellant need not "wait until the case has been concluded in the trial court before he may challenge the order." Id. See also Connor Group v. Raney, 2d Dist. Montgomery No. 26653, 2016-Ohio-2959, at 1 ("Although the issuance of a preliminary injunction by a trial court generally is not viewed as a final appealable order, . . . a preliminary injunction that constitutes a prior restraint on speech requires immediate appellate review.").

The Eleventh District agrees: "[W]here an injunction seeks to 'impose a restraint [on First Amendment rights],' there must be strict procedural safeguards, including immediate appellate review." Puruczky v. Corsi, 11th Dist. Geauga No. 2017-G-0110, 2018-Ohio-1335, 15 (paraphrasing Nat'l Socialist Party; some internal markup omitted). "Since Corsi alleges that the injunction substantially impacts his rights and constitutes a prior restraint on his speech, we will proceed to a review of the merits of his appeal." Id.

Unlike the First District's decision below, the holdings of those districts offer no loophole for temporary restraining orders, and those courts exercised their jurisdiction and reviewed (and reversed) the prior restraints. And both Puruczky and Connor Group were libel cases, like this one.

And the Second and Eleventh Districts' approach is correct: As the U.S. Supreme Court has recognized, even temporary restraints on speech can create a chilling effect on the exercise of free speech. See Int'l Diamond, 70 Ohio App. 3d at 671. This Court should also exercise its discretion to review this case and resolve this split of authority on this important constitutional issue that affects fundamental rights. Unless and until it does, the rights of defendants to speak and of the public to listen and supervise their courts and their public officials, will depend on which of the State's appellate districts they reside in.

Proposition of Law no. 1: An order that imposes a prior restraint on speech must be subject to immediate appellate review.

"[I]mmediate appellate review" of prior restraints is constitutionally required. National Socialist Party, 432 U.S. at 44. See also Puruczky; Connor Group; Int'l Diamond, supra.

This principle is fully applicable here. Puruczky and Connor Group involved injunctions entered in response to libel lawsuits, just as this case does. National Socialist Party famously involved Nazis marching in Skokie, Illinois. Nat'l Socialist Party, 432 U.S. at 4344; see also Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978). If Nazis who want to march in a neighborhood populated with thousands of Holocaust survivors are entitled to immediate appellate review of an injunction against their speech, then citizens criticizing a police officer must be entitled to the same.

This constitutional requirement flows naturally from courts' recognition of the dangers of prior restraints. "A prior restraint...has an immediate and irreversible sanction" that is unlike any other remedy a court may impose, including "a judgment in a defamation case" or even "[a] criminal penalty," because all other sanctions are "subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative" for other remedies. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).

That "panoply of protections" does not exist for a prior restraint, which is why "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Id.Prior restraints "fall on speech with a brutality and finality all their own." Id. at 609(Brennan, J., concurring in reversal of prior restraint).

More broadly, every day that a prior restraint remains in place is a First Amendment violation, and "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). "'Where . . . a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.'" CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994)(Blackmun, J., in chambers) (citation omitted); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006)(endorsing this principle as requiring "expeditious[]" decisionmaking as to restraints on First Amendment rights, there the right of access to court records); Doe v. Pub. Citizen, 749 F.3d 246, 27273 (4th Cir. 2014)(same); Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)(same), superseded on other grounds, as stated in Bond v. Utreras, 585 F.3d 1061, 1068 n.4 (7th Cir. 2009). And of course this principle applies beyond the mainstream media, and covers social media users as well.

{Art. I, 11 of the Ohio Constitution "guarantees to '[e]very citizen' the right to publish freely his or her sentiments on all subjects, regardless of that citizen's association or nonassociation with the press." Wampler v. Higgins, 93 Ohio St. 3d 111, 121 (2001). "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." Citizens United v. United States, 558 U.S. 310, 352 (2010)(internal quotation marks omitted). "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. City of Griffin, 303 U.S. 444, 452 (1938); see also Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1092 (Fla. Dist. Ct. App. 2014)("Angry social media postings are now common....But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk," and are just as fully protected by the First Amendment).}

The injury inflicted by prior restraints is thus not remediable by vacatur or reversal of a prior restraint at a distant future date after final judgment, especially where (as here) the prior restraint relates to a public official and his conduct in official and court proceedings. The parties and the public have a right to speak contemporaneously, not merely retrospectively, both about public officials and about court proceedings. See Bridges v. California, 314 U.S. 252, 268 (1941)("[P]ublic interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist."); Doe v. Pub. Citizen, 749 F.3d 246, 272 (4th Cir. 2014)(acknowledging the harms of "delayed disclosure" with respect to court proceedings). Immediate appellate review is thus critical to make sure that the injunction does not cause such a loss of First Amendment freedoms.

The logic of these cases turns on the commands imposed by the First Amendmentcommands that override any contrary state procedural distinctions that would limit immediate appellate review. And of course both this Court and the U.S. Supreme Court have recognized that "Temporary restraining orders," no less than "permanent injunctions," "are classic examples of prior restraints" that are fully subject to First Amendment constraints. Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, 25; Alexander v. United States, 509 U.S. 544, 550 (1993).

Yet the First District took a sharply different approach; it concluded that neither the U.S. Supreme Court's Skokie decision nor the Second and Eleventh Districts' decisions applied here, simply because this case involved a temporary restraining order. M.R., 1st Dist. No. C-200302 at 9. The First District did not acknowledge this Court's or the U.S. Supreme Court's treatment of temporary restraining orders as prior restraints, nor did it explain why the First Amendment rule of immediate appellate review of prior restraints would be limited by the TRO/preliminary injunction distinction.

This Court's review is necessary to set forth a uniform rule on when immediate appellate review of prior restraints is necessary.

Conclusion

Prior restraints on speech are rarely constitutional; and to make sure that unconstitutional prior restraints suppress speech for as short a time as possible, both the U.S. Supreme Court and Ohio courts have required that such restraints be subject to immediate appellate review. The injunction in this case is a prior restraint, and thus subject to immediate appellate review; indeed, it is a content-based prior restraint, and one that is not limited to libelous speech or to speech that falls within a First Amendment exception. This Court should step in to correct the serious First Amendment violation in this case, and resolve the disagreement among the Courts of Appeals on whether the normal First Amendment rules apply to temporary restraining orders.

Here is the original post:
Do Critics of Police Have the First Amendment Procedural Protections That Nazis Get? - Reason

Nancy Costello, director of the First Amendment Law Clinic and supervisor of the McLellan Free Speech Online Library in the Michigan State University College of Law, discusses the First Amendment and freedom of speech. The First Amendment Law Clinic is the only program in the country solely dedicated to the protection of student speech and press rights.

In simple terms, what is the First Amendment and what does it do?

The First Amendment to the United States Constitution is part of the Bill of Rights and protects freedom of speech, freedom of religion, freedom of assembly, freedom of the press and the right to petition. The First Amendment is one of the most important amendments for the protection of democracy.

Nancy Costello, director of the First Amendment Law Clinic and supervisor of the McLellan Free Speech Online Library in the Michigan State University College of Law.

When was it created?

The First Amendment is part of the Bill of Rights. To protect individual rights, the framers of the U.S. Constitution added 10 amendments to the document in 1791, four years after the Constitution was ratified.

What does the First Amendment say about freedom of speech?

Generally speaking, it means that the government may not jail, fine or impose civil liability on people or organizations based on what they say or write, except in limited circumstances.

President Donald Trump recently was suspended from a number of social media platforms. Is this a violation of his First Amendment rights?

Facebook, Twitter, Instagram or any similar social media platform can censor any persons speech because they are private companies. Censorship is when an entity punishes individuals for their speech or prevents the speech from being expressed. Free speech is the ability to express ones thoughts and opinions without fear of being punished by the government.

The First Amendment protects against the government from censoring speech. None of these social media platforms are part of the government, so President Trump cannot claim his First Amendment rights have been violated.

President Trump was impeached a second time for incitement of insurrection. What is incitement speech?

Incitement speech is not protected by the First Amendment. Incitement speech is when someone encourages lawless action, and that lawless action is imminent and likely. It could be argued that Trump incited the mob violence on Jan. 6 in his summoning and assembling of supporters at the White House rally, his repeated claims that he won the election and his exhorting the crowd to go to the Capitol. Among other things, the president told the crowd, If you dont fight like hell, youre not going to have a country anymore. Not long after Trumps speech, members of the crowd converged on the U.S. Capitol, broke through doors and windows, invaded the Senate and House chambers and private offices, and had violent clashes with police resulting in deaths.

What types of speech are not protected under the First Amendment?Types of speech that arent protected include:

Does the First Amendment only protect U.S. citizens?

Theres no citizenship requirement for First Amendment protection. If you are a resident of the United States, you have freedom of speech, religion, press, assembly and petition.

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Ask the expert: The First Amendment and free speech - MSUToday

I write not wanting to ruffle feathers or strain friendships. Yet, I am reminded that we remain silent because silence is easier. There may come a time I need friends to speak out on my behalf and they might not because I've set a poor example.

I am troubled by the messages that I've received over the last few days by people who are enraged because their freedom of speech rights are being denied. I interpret this to mean their Twitter accounts have been closed.

First, I'd like to point out your freedom of speech has not been denied, or I wouldn't be hearing from you. You are coming through on another forum maybe not the one you typically use, but I'm guessing you'll have a new platform shortly. Remember that Facebook and Twitter are private companies, and they do have the right to require that their users follow certain rules. Remember all of those pages you didn't read when you signed on to be a user? You simply checked, "I agree." Well, that's what you agreed to.

Second, the Supreme Court has ruled that there are a few exceptions to the First Amendment. They include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. There's a reason you can't stand up in a crowded theater and yell "Fire!" It's incitement and causes danger to others as they attempt to flee.

One example: In November, Sidney Powell, then-lawyer for President Trump, accused Dominion Voting Systems of promoting widespread voter fraud through voting machines she claimed were manufactured in Venezuela for the explicit purpose of throwing elections. All of those claims were proven false, but, nonetheless, they were picked up by social media and spread across the internet like mice in a grain bin. The president repeated Powell's claims, and his ardent followers took his words to heart, becoming more and more convinced that their candidate had been robbed of his election. He, as well as other congressmen and women, jumped on the groundswell of this example of misinformation despite state and federal judges (many Republican) throwing the claims out of court.

Employees of Dominion Voting Systems began receiving death threats. Imagine that. You do your job, someone falsely claims you cheated, and without any facts to these claims, your business plummets, and your 300 workers and their families fear for their lives. To top it off, the president of the United States continues to feed this misinformation to his loyal supporters to the point they become outraged.

So, back to the original question: Has this speech included "obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct?" If you, by chance, "shared" information on a "private" company's platform, whether you knew or didn't know that it was false, and it led to defamation and inciting others to violence, then yes - your account was blocked. That is a lesson to us all to be careful about casually hitting the "share" button.

Dominion Voting Systems is suing Sidney Powell for $1.3 billion (with a B), and the CEO claims that's just for starters. More suits are being filed. Are Facebook and Twitter concerned because they allowed their platform to be used to spread the lies that resulted in defamation, fraud, incitement, threats and criminal conduct? You bet.

Like millions of others, I am distressed and sickened that our country is being divided over the issue of honesty a quality I'm sure both sides agree with in principle. I understand completely why others can listen to the same speaker as I do and walk away with a different opinion as to the best approach for making our country a strong, productive and moral society for our children to inherit. In doing so, however, we have to start by agreeing with what is true and what is being propagated for personal and political gain. If someone is milking millions off a falsehood, then they're going to buy the cow? We've got too many cash cows in our midst, and they're doing severe damage to the land we love. It's time to trim the herd.

BRENDA BEVAN REMMES

Mayesville

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Letter: To everyone, including friends and family members, who feel First Amendment rights are being denied - Sumter Item

The Supreme Court should leave in place a lower court's ruling that former President Trump violated the First Amendment by blocking critics on Twitter, a free speech advocacy group argues.

The public interest in preventing impermissible viewpoint discrimination in government-operated social media accounts weighs heavily in favor of keeping the Second Circuits judgmentin place, the Knight First Amendment Institute at Columbia University argues in papers filed Thursday.

The papers come in response to arguments filed by the Department of Justice on thelast full day of Trump's presidency.

The government lawyers urged theSupreme Court to find both that the battle over the Twitter blocks is moot -- given that Trump is once again a private citizen -- and that a lower court ruling against him should be vacated.

The legal battle dates to 2017, when the Knight Institute sued Trump on behalf of seven critics who were blocked by him on Twitter.

Knight said the blocks violated users' free-speechrights, arguing that Trump's Twitter account was a public forum -- comparable to city streets, parks and other places where the government can't censor people based on their opinions.

U.S.District Court Judge Naomi Reice Buchwald in New York sided with the Knight Institute and ruled that Trump acted unconstitutionally by blocking social media users based on their viewpoints.

The Justice Department appealed to the 2nd Circuit, arguing that Trump acts in a personal capacity, not an official one, when he blocks people on Twitter. The First Amendmentprohibits the government -- but not private individuals -- from censoring criticism.

In 2019, the appellate court rejected the White House's position, ruling that evidence of the account'sofficial nature was overwhelming.

The Justice Department then sought review by the Supreme Court. In its most recent papers, the Justice Department argued that the 2nd Circuitruling was deeply problematic.

Allowing the decision below to stand would be harmful, no longer to President Trump, but to the Presidency itself and to other governmentalofficials, the Justice Department wrote.

The Knight Institute counters that the appellate court's ruling should be preserved because it provides a sensible framework that is ofvalue to the legal community and the public.

The organization added that the 2nd Circuit's decision rests on a unique set of facts and doesn't pre-ordain the result of any futurelawsuit involving other public officials and other accounts that may be used in different ways.

The Supreme Court has had the case on its conference calendar since November, but hasn'tyet said whether it will review the ruling.

A decision could come as early as Monday.

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Knight Institute Urges Supreme Court To Preserve Ruling That Trump Violated First Amendment 01/25/2021 - MediaPost Communications