Category Archives: First Amendment

Last year, some students at Carmel High School were allowed to put up an anti-abortion sign. This year, a different group of students were told they could not hang a pro-abortion rights sign.

That is discrimination based on viewpoint, and that is a clear violation of the First Amendment. Naturally it's time to bring in the American Civil Liberties Union of Indiana and take the school system to court, by God!

OF COURSE THE story is a tad more complicated than that, and the episode should serve as a warning for school districts inclined to stray from their mission under the false impression that they must accommodate every student demand for this or that "right."

A school is not a microcosm of the country, with students counted as citizens and school officials standing in for "the government." A school is a structured learning environment in which anything not aimed at imparting knowledge must be put aside. True, students don't leave their rights at the schoolhouse door, but the rights they have are not the same as a citizen's in dealing with government.

If schools choose to ignore that reality, they owe it to students to have very clear rules that are widely disseminated and understood. This is what Carmel failed to do.

The school at first took down the anti-abortion sign last year. But it put it back up for 10 days after the conservative legal group Liberty Counsel threatened legal action, arguing that the school had allowed other ideological messages on signs, including a donkey on a sign for a student club for Democrats and the use of a rainbow and the word pride on signs for a group supporting lesbian, gay, bisexual and transgender students. The anti-abortion sign said "3,000 Lives Are Ended Each Day" and featured the word "abortion" changed to say "adoption."

THE SCHOOL SAYS groups may post signs only if they advertise group meetings. Lawyers for the school district say the new sign did not include the group's name or meeting details, which the sign last year did. But the ACLU, like the Liberty Counsel before, is citing all the previous ideological signs allowed.

Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana says the controversy over the new sign "opens a can of worms, doesn't it?"

Indeed, it does. And it's not the students who are at fault.

The Fort Wayne News-Sentinel

Originally posted here:
EDITORIAL: Another fine First Amendment mess - Goshen News

The Bill of Rights surely ranks as one of the most difficult documents for us, as Americans, to contend with.

Theres enough in that list of 10 rights to make each of us a little uncomfortable, depending on your political persuasion.

Me? I get hung up on the Second Amendment. I dislike guns and I have seen how much damage they can unleash on families and communities. Just ask the parents at Sandy Hook.

But its there and like it or not we, as a community, have to follow the law as interpreted by the U.S. Supreme Court no matter how wrong-headed we think the opinion is. If I respect the Constitution, I respect the rule of law.

Then theres the Fourth Amendment protection against unlawful searches of your property and person. It provides great protection for me and my family if the police come pounding on my door and want to search my house without a warrant.

But it also means that even if my neighbor is the nastiest drug dealer in the city, the police cannot crash through their door without cause or a warrant. And if the police dont play by the rules? The evidence might get tossed out of court and that nasty drug dealer goes free.

Then theres the Fifth Amendment right against self-incrimination, which led to the high court establishing the Miranda warning. You hear that in every TV cop show and again, if the police dont read defendants their rights at the time of arrest, a criminals statement just might get thrown out of court, even if it means a guilty person goes free.

Uncomfortable. But the law.

Perhaps the most vexing of all the amendments in the Bill of Rights is the first one you know, the one about free speech, a free press, freedom to worship or not, and the right to assemble.

I personally hope to never have to listen to the likes of white supremacist Richard Spencer talking about making white privilege great again as he did recently at Auburn University in Alabama. But as long as he wasnt inciting violence yes, there are restrictions that can be placed on speech he had a right to speak.

It should have been the same with Ann Coulter in Berkeley, Calif., where her speech was stopped because of a threat of violence. Whether you agree with her is beside the point. She and her followers have a right to free speech just as those who disagree with her have a right to protest peacefully.

That pesky First Amendment.

Indianas legislators showed this past legislative session that while they may love First Amendment protections for themselves, when it comes to high school journalists not so much. After pressure from principals, superintendents and the Department of Education, they refused to extend First Amendment protections to high school journalists and their advisers.

Order and control trumped the First Amendment.

Whats most disheartening about the failure of this piece of legislation is the way it undermines a real opportunity for students to learn from first-hand experience how the Constitution works.

What better civics education is there than to learn about our constitutionally protected freedoms than by living them?

Will there be mistakes? Yes, of course. Thats the price of a free press. And just as there are limits on speech there are limits on the press you deliberately print falsehoods and you can get sued.

Should that fear of students running amuck with their pens and notebooks override the chance to let them live the values we claim to extol in the Constitution? No, it shouldnt.

Some of our lawmakers would be much more comfortable allowing guns in school for protection, of course than would want a free and open student press.

Yes, the First Amendment is pesky and hard. And just because something is hard doesnt mean we quash it. Thats not how our democracy works.

Janet Williams is editor of TheStatehouseFile.com, a news website powered by Franklin College journalism students. She can be reached at jwilliams4@franklincollege.edu.

Read the original post:
WILLIAMS: Living the First Amendment is hard work - Evening News and Tribune

Forbes

Department Of Labor's Fiduciary Rule Is Vulnerable On First Amendment Grounds Forbes Promulgated in April 2016, the Department of Labor's (DOL) highly controversial Fiduciary Rule drastically expands the universe of retirement investment advisors and employees who are deemed to be fiduciaries under federal law. Abandoning 40 years of ... Fiduciary Rule Violates First Amendment, Law Firm ArguesBloomberg BNA 2nd Voice Weighs in on 1st Amendment Challenge to Fiduciary RuleNational Association of Plan Advisors (subscription) (blog) all 8 news articles »

Read more here:
Department Of Labor's Fiduciary Rule Is Vulnerable On First Amendment Grounds - Forbes

You cant make this stuff up.

Now comes the news featured in this headline from CNN (among a number of other places):

Trump supporter Robert Mercer sued by employee who says he was fired for speaking out on politics

Sounds bad, yes? There is yet another thug-like Trump supporter acting out in full totalitarian mode to silence dissent from just another good American with a different opinion on Donald Trump.

Sounds bad and it is bad. But a look into this situation reveals the story is not only bad but worse than bad because it is exactly the reverse. It is the story of liberal fascism on the march. It is about the attempt to silence a Trump supporter this one by happenstance a most prominent Trump supporter. But make no mistake, the underlying story is the same kind of story Trump supporters all over America have long since gotten used to. If, that is, they havent experienced some version of it themselves.

Here are the bare bones of the story as reported by CNN and many other outlets. The CNN version says this:

Robert Mercer, one of President Trumps top financial supporters, is being sued by a former employee of his investment firm who says he was fired for complaining publicly about Mercers political views.

The suit was filed in federal court in Philadelphia on Friday by David Magerman, who was a research scientist at Renaissance Technologies, a hedge fund where Mercer is the co-CEO. Magermans suit said he designed algorithms used in the firms investment decisions.

Philly.com, the website for thePhiladelphia Inquirerand thePhiladelphia Daily News(Magerman lives in suburban Philadelphia), reports, According to Magermans lawsuit, he called Mercer in January about Mercers support for Trump.

Which is to say, this controversy began when Magerman picked up the phone to deliberately confront Mercer about the latters political views. They disagreed. There would be a second call, this one at a later date from Mercer to Magerman.

Over at theWall Street Journal, there was this gem of a story replete with an interview of Mr. Magerman. This story is mentioned in the lawsuit. The headline and subheadline read:

You Have to Stop, Renaissance Executive Tells Boss About Trump Support

At some companies, a divisive presidential campaign has led to disharmony in the workplace

The WSJ story says, in part, this:

David Magerman says he was in his home office in suburban Philadelphia earlier this month when the phone rang. His boss, hedge-fund billionaire Robert Mercer, was on the line.

I hear youre going around saying Im a white supremacist, Mr. Mercer said. Thats ridiculous.

In the prior weeks, Mr. Magerman, a registered Democrat who calls himself a centrist, had complained to colleagues about Mr. Mercers role as a prominent booster of Donald Trumps presidential campaign.

Now word of Mr. Magermans criticism had reached Mr. Mercer, co-chief executive of Renaissance Technologies LLC, one of the worlds most successful hedge funds.

Those werent my exact words, Mr. Magerman said he told Mr. Mercer, stammering and then explaining his concerns about Mr. Trumps policy positions, rhetoric and cabinet choices. If what youre doing is harming the country then you have to stop.

Mr. Mercer declined to comment through a spokesman. In a statement, Renaissances chairman and founder, Jim Simons, who has been a prominent financial backer of Democrats, said, I have worked closely with Bob Mercer since he joined our firm almost 25 years ago. While our politics differ dramatically, I have always thought him to be of impeccable character.

A presidential campaign that divided much of the country also has created tensions within companies. Some senior employees, accustomed to settling grievances behind closed doors, are rebelling in unusually public ways, the polarization playing out for the world to see.

Historically, some leaders of Renaissance, which is based on Long Island, N.Y., have leaned Democratic, including Mr. Simons, who donated to Hillary Clintons 2016 presidential campaign.

Some Renaissance executives chafed at the unwanted publicity brought to the firm by Mr. Mercers activities during the presidential race, according to people close to the matter. In addition to providing crucial financial help when Mr. Trumps candidacy was lagging, Mr. Mercer and his daughter Rebekah advised the campaign, suggesting the installation of two Mercer family confidantes,Steve BannonandKellyanne Conway, atop the campaign. Those two now hold senior White House positions.

Until now, however, nobody within the tight-lipped hedge fund has gone public with a grievance.

His views show contempt for the social safety netthat he doesnt need, but many Americans do,said Mr. Magerman, 48 years old, during an interview with The Wall Street Journal at the Dairy Caf, a kosher restaurant he owns in Bala Cynwyd, Pa.Now hes using themoney I helped him make to implement his worldview by supporting Mr. Trump and encouraging that government be shrunk down to the size of a pinhead.

Mr. Magerman, a 20-year Renaissance veteran who helped design the funds trading systems, says he is speaking only for himself, and that there is no sign of a broad insurrection at the firm.

Mr. Magerman makes millions of dollars a year, drives a Tesla and says he gives more than $10 million in charity annually. A research scientist, he is one of 100 partners at the firm, but he isnt one of Renaissances most senior executives.

Id like to think Im speaking out in a way that wont risk my job, but its very possible they could fire me, he said.My wifeisnt comfortable with me jeopardizing my job, but she realizes its my prerogative and agrees with my sentiments.

He has concluded thatevery new piece of code he developed for Renaissance helped Mr. Mercer make more money and gave him greater ability to influence the country.

To try to counteract his bosss activities, Mr. Magerman says he has been in touch with local Democratic leaders and plans to make major contributions to the party. He says hecalled Planned Parenthood to offer his assistance and contacted Jared Kushner, Mr. Trumps son-in-law and White House adviser, to voice his concerns about Ms. Conway and Mr. Bannon. He says he failed to reach Mr. Kushner.

Note well. There is zero wrong with Magerman working with local Democratic leaders and making major contributions to his party or supporting Planned Parenthood. Those are Magermans First Amendment rights. He can voice all the concerns he wants about Steve Bannon and Kellyanne Conway both of whom I know and who have been wildly and deliberately misrepresented by opponents exercising their own First Amendment rights. (One wonders if Magerman has ever read this account of the real Steve Bannon as here in theHollywood Reporterby Bannons liberal business partner.)

Theres more oh so much more in other news stories. Including here at Bloomberg, again at the WSJ, and here at Philly.com.

ThePhilly.comstory says among other things that Magerman sent a memo to other senior Renaissance officials, stating that Mercer and his politically active daughter Rebekah, in their blatant support for the Trump candidacy, presidency and agenda, has cast a taint on all Renaissance employees, and that he and other employees should respond publicly.

Stop. Full stop.

Lets be plain here. David Magerman is no victim. He was the employee and clearly a highly paid and valued employee of a well-to-do American company. And out of the blue he sought to clearly and deliberately confront his boss, Robert Mercer, for Mr. Mercers use of his, Mercers, First Amendment rights to free speech.

Take note of the heart of Magermans complaint. What does the attitude behind this Magerman statement communicate?Philly.com reports that Magerman sent a memo that said of Mercer and daughter Rebekah that their blatant support for the Trump candidacy, presidency and agenda, has cast a taint on all Renaissance employees.

Hello? Excuse me? Note well that Mr. Magerman is a resident of my own Commonwealth of Pennsylvania. And Mr. Magermans fellow Pennsylvanians voted for Donald Trump. Have all of us who share the Commonwealth with Magerman cast a taint on all of Pennsylvania? Clearly, in Magermans view, the answer is yes.

Recall this statement during the campaign from Mr. Magermans favorite candidate? The excerpt comes fromTimemagazine, which reported Hillary Clinton now-famously saying as follows:

You know, to just be grossly generalistic, you could put half of Trumps supporters into what I call the basket of deplorables. Right?

[Laughter/applause]

The racist, sexist, homophobic, xenophobic, Islamaphobic you name it. And unfortunately there are people like that. And he has lifted them up. He has given voice to their websites that used to only have 11,000 people now how 11 million. He tweets and retweets their offensive hateful mean-spirited rhetoric. Now, some of those folks they are irredeemable.

Magermans actions in suing Mercer over Mercers free speech are the very epitome of that snotty, arrogant, elitist holier-than-thou attitude on vivid display not just in Clintons speech (and the laughing, applauding of liberals in her audience) but in all of American liberalism.

It is rich beyond words that Magerman takes issue with Mercer on civil rights, apparently blissfully ignorant that the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were needed as do-overs in the first place because Magermans own party aka The Party of Race spent 100 years after the Civil War defying one constitutional amendment and civil rights law after another all passed by Republicans over repeated Democratic opposition. That includes, as noted here years ago,the Thirteenth, Fourteenth and Fifteenth Amendments (ending slavery, giving the ex-slaves due process and the right to vote), not to mention the Civil Rights Acts of 1866, 1870, 1871, and 1875. Mr. Magermans party has uniquely positioned itself not unlike the fireman who arrives to save the burning house yet is in fact the arsonist who set it on fire in the first place. Worse, the culture of racism so freely exhibited in Magermans party has not only not been cleansed and eradicated, the party to this day with Magermans apparent support depends on the politics of skin-color judging, repeatedly dividing Americans by race for political gain. Exactly as it has always done when it was supporting slavery, segregation, and writing all those Jim Crow laws.

Lets be clear here. By all the public accounts of this incident, it is Magerman who went out of his way to confront Mercer over the latters support for Donald Trump. Thus setting all the rest in motion. There is no record of Mercer deliberately seeking out Magerman to intimidate him into not supporting Hillary Clinton.

Why is any of this important? In short, who cares about a court fight between a billionaire and an employee?

Everybody should care. Because Robert Mercer is the momentary stand-in for all Americans who care about free speech. The other week it was Ann Coulter at Berkeley where Ms. Coulters physical safety and that of anyone wishing to hear her was literally threatened if she went ahead with her plans to give a speech. Up there at Middlebury College in Vermont it was conservative Charles Murray who was forcibly denied his speech and then physically attacked. Murray wrote this of his experience over here at Fox:

We walked out the door and into the middle of a mob. I have read that they numbered about twenty. It seemed like a lot more than that to me, maybe fifty or so, but I was not in a position to get a good count. I registered that several of them were wearing ski masks. That was disquieting.

What would have happened after that I dont know, but I do recall thinking that being on the ground was a really bad idea, and I should try really hard to avoid that. Unlike Allison (Professor Allison Stanger of the Political Science Department), I wasnt actually hurt at all.

I had expected that they would shout expletives at us but no more. So I was nonplussed when I realized that a big man with a sign was standing right in front of us and wasnt going to let us pass. I instinctively thought, well go around him. But that wasnt possible. Wed just get blocked by the others who were joining him. So we walked straight into him, one of our security guys pushed him aside, and thats the way it went from then on: Allison and Bill (Bill Burger, Vice President for Communications at Middlebury) each holding one of my elbows, the three of us plowing ahead, the security guys clearing our way, and lots of pushing and shoving from all sides.

I didnt see it happen, but someone grabbed Allisons hair just as someone else shoved her from another direction, damaging muscles, tendons, and fascia in her neck. I was stumbling because of the shoving. If it hadnt been for Allison and Bill keeping hold of me and the security guards pulling people off me, I would have been pushed to the ground. That much is sure. What would have happened after that I dont know, but I do recall thinking that being on the ground was a really bad idea, and I should try really hard to avoid that. Unlike Allison, I wasnt actually hurt at all.

The three of us got to the car, with the security guards keeping protesters away while we closed and locked the doors. Then we found that the evening wasnt over. So many protesters surrounded the car, banging on the sides and the windows and rocking the car, climbing onto the hood, that Bill had to inch forward lest he run over them. At the time, I wouldnt have objected. Bill must have a longer time horizon than I do.

Extricating ourselves took a few blocks and several minutes. When we had done so and were finally satisfied that no cars were tailing us, we drove to the dinner venue. Allison and I went in and started chatting with the gathered students and faculty members. Suddenly Bill reappeared and said abruptly, Were leaving. Now. The protesters had discovered where the dinner was being held and were on their way. So it was the three of us in the car again.

Across the country there has been one incident after another in which a Trump supporter or a conservative has been targeted for silence sometimes with violence.

Make no mistake. David Magerman is represented in various stories some about this episode and some not as a civic-minded professional who makes a point of giving money for charitable purposes. Good for him. But this episode is disgraceful. Not to mention typical of the left-wing mindset, something Sean Hannity has taken to referring to as Liberal Fascism (borrowing from Jonah Goldbergs book of the same name).

Magermans lawsuit, according to one of these reports, says that Mercer attempted to silence Magerman and prevent him from speaking out on political issues. The fact is that, based on all these news reports, there is zero evidence Mercer sought out Magerman about Magermans political views. It is precisely and exactly the opposite. Note well this sentence from one of the Bloomberg stories. It says that:

The dispute started on Jan. 16 when Magerman called Mercer and asked to have a conversation about his support of Trump, according to the complaint.

Exactly. Just as those thugs at Berkeley and Middlebury sought out confrontations over the political views of Coulter and Murray, so too, in typical left-wing style, Magerman sought out Mercer for a (nonviolent in this case) confrontation. Why? Because in the style of liberal fascism and its contempt for fellow Americans as deplorables and irredeemables, Magerman had decided Mercers blatant support for the Trump candidacy, presidency and agenda, has cast a taint on all Renaissance employees.

Never, but of course, does it cross Magermans mind that just maybe there are those who might think it is Magermans actions and the resulting lawsuit that is casting a taint on all Renaissance employees. Does he really believe a majority of his own fellow Pennsylvanians whoagreewith Mercer and voted accordingly for Donald Trump in November are tainted? Does Magerman even consider that it is possible just possible that a lot of Americans will learn of this lawsuit and see Robert Mercer as a hero for being unafraid to stand up for his beliefs when Trump supporters of all descriptions are being contemptuously vilified by their opponents when not fired from a job or subjected to harassment? Clearly, no.

So what do we have here?

What we have, based on all these news accounts, is a liberal employee who took umbrage at his bosss political views. Not content to support his own candidate and exercise his own First Amendment rights, he took it upon himself to ever so not-subtly try to intimidate his boss into silence. And then got fired for doing so.

Recall what Magerman himself says he told Mercer? This? If what youre doing is harming the country then you have to stop.

What Magerman and all these self-righteous and arrogant anti-Trump cultists with such contempt for their fellow Americans are doing is exactly harming the country and rest assured they have zero intention of stopping.

They have no obligation to support the President indeed they are well within their own First Amendment rights to oppose the President or anyone else. But they have no right to try and intimidate the rest of us into silence. In fact? Mercers support of the controversial President Trump reminds of an earlier Americans support for another controversial president. That would be Lincoln supporter and abolitionist William Lloyd Garrison. Threatened repeatedly for his outspoken views on ending slavery on one occasion he was saved from a lynching by the Boston police Garrison famously said this of his abolition beliefs and his right to free speech:

I am in earnest. I will not equivocate. I will not excuse. I will not retreat a single inch. And I will be heard!

This is no ordinary lawsuit. This is, plain and simple, a battle about free speech. Robert Mercer is Ann Coulter is Charles Murray is you and me and eventually, even though he doesnt recognize it David Magerman himself.

Liberal fascism has taken Robert Mercer to court. Robert Mercer is fighting back. In the style of Lincoln supporter Garrison, Mercer will not retreat a single inch and he will be heard.

Good for him. And good for the all the rest of us, too.

Continued here:
Liberal Fascism Attacks Robert Mercer's First Amendment Rights - American Spectator

A reporter in West Virginia was arrested Tuesday night for literally doing his job.

Dan Heyman, a veteran reporter with Public News Service, was covering a visit to the state capitol by Health and Human Services Secretary Tom Price and senior Trump advisor Kellyanne Conway. As they walked through the building, Heyman pressed the two on whether domestic violence would be considered a preexisting condition under the American Health Care Act passed by the House last week.

Suddenly, he was pulled aside by Capitol police, handcuffed, and hauled off to jail. He was charged with a misdemeanor for willful disruption of governmental processes and only released when his employer posted a $5,000 bond. He is still awaiting a preliminary hearing.

At some point I think they decided I was just too persistent in asking this question and trying to do my job, and they arrested me, Heyman said after he was released.

A criminal complaint alleges that Heyman was causing a disturbance by yelling questions. What it doesnt note was that Heyman was actually targeted for reporting on matters critical to the public interest not in a closed meeting or the inside of a working office, but in the hallways of a government building.

The law under which Heyman was charged can carry a fine of up to $100 and a jail sentence of up to six months.

At a time of eroding trust in our government institutions, an independent free press is more critical than ever to ensure that the people running our country are held to account. This makes Heymans arrest all the more distressing.

What happened in West Virginia didnt happen in a vacuum. The president has been attempting to undermine the press on a regular basis and resists transparency at every turn. He has smeared the media as the enemy of the people. On the campaign trail, he revoked the credentials of some of the most prestigious news outlets in the country because he didnt like their coverage. Reporters have been the victims of physical violence and the target of mockery. Others have been arrested and charged with felonies for covering protests.

Against this backdrop, it should come as no surprise that a reporter was arrested for trying to ask a question to a member of Trumps cabinet. But it can never be accepted as normal.

In the 1971 Supreme Court ruling on the famous Pentagon Papers case, Justice Hugo Black wrote, The press was to serve the governed, not the governors. Indeed, when our public representatives whether the Trump administration or the West Virginia Capitol police forget that they work for us, we need journalists to remind them. Without a free press, public officials have a much easier time evading accountability, shielding misconduct, and pushing through dangerous policies without public scrutiny. Even Thomas Jefferson, who had a quarrelsome relationship with the press, knew that our liberty depends on the freedom of the press.

We need journalists to be able to challenge and question public officials, loudly and persistently. For the government to stand in the way is a frontal assault on the First Amendment and the functioning of our democracy. Those who dont want transparency in the literal halls of government have no business putting themselves in the political spotlight.

If our elected officials insist on continuing to violate one of our countrys core values, we will see them in court in defense of Dan Heyman and of any other journalist serving the publics right to know.

Link:
Arresting a Reporter for Asking Questions Is an Unacceptable Assault on the First Amendment - ACLU (blog)

President Trumps executive order on immigration was back in federal court on Monday. This time around, the Fourth U.S. Circuit Court of Appeals heard oral arguments in the Trump administrations appeal of a ruling that blocked the travel ban. Next Monday, the Ninth Circuit will hear a separate appeal related to the order.

The White House has maintained that a temporary ban on entry from six Muslim-majority countries is needed for national security reasons. Detractors say the ban is meant to target Muslims, and point to statements Trump made on the campaign trail last year calling for a total and complete shutdown of Muslims entering the United States. Therefore, the argument goes, the executive order amounts to religious discrimination and violates the First Amendments Establishment Clause.

The 13-judge en banc panel of the Fourth Circuit appeared to take this argument seriously on Monday, with one judge asking if there was anything other than willful blindness that should prevent the court from considering Trumps comments.

Since this issue isnt going away any time soon, lets get something straight: the executive order does not violate the Establishment Clause, and in fact has nothing to do with the First Amendment. Simply put, theres no legal basis for courts to consider statements a politician made before taking office to ascertain his motives for subsequent policy decisions. Policies are either constitutional or unconstitutional on their merits, not because a liberal judge in Washington or Hawaii or Maryland thinks Trump is a bigot.

If the president wants to restrict immigration from certain countries for national security reasons, it is well within his constitutional power to do so. It might be bad policy, it might prove inconvenient for certain businesses and universities, it might even offend the prime minister of Canada, but its not religious discriminationand pointing to past statements to argue that it is sets a very dangerous precedent.

Trump said a lot of things on the campaign trail, but as were discovering with each passing week, he doesnt always mean what he says. He said he would label China a currency manipulator, but no. He said NATO is obsolete, but now its not. He said he would build a wall along the U.S.-Mexico border, but now it looks like the wall might be delayed indefinitely. More than most politicians, Trumps campaign pronouncement should be taken with a hearty dose of salt.

But even if Trump really meant what he said about barring Muslims from the United States, it wouldnt matter from a legal standpoint. Consider the background of Trumps travel ban saga. The initial order, issued in January just one week into his presidency, was blocked on due process grounds. The White House withdrew that order and issued a new, softer order in March designed to address the due process complaints. But federal trial judges in Maryland and Hawaii immediately blocked that one, too, on the grounds that the legal challenges to the orderalleging it violates the First Amendment prohibition on religious discriminationwere likely to prevail.

As evidence, challengers cited Trumps campaign rhetoric about a Muslim ban. Their argument is straightforward enough: Trump said during his presidential campaign that he would ban Muslims, then issued an order temporarily banning entry from six Muslim-majority countries. Hence, Trump violated the Constitution.

But as Eugene Kontorovich noted at The Volokh Conspiracy back in February, theres absolutely no precedent for courts looking to a politicians statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive.

Indeed, a brief examination of cases suggests the idea has been too wild to suggest. For example, the 10th Circuit has rejected the use of a district attorneys campaign statements against certain viewpoints to show that a prosecution he commenced a few days after office was bad faith or harassment. As the court explained, even looking at such statements would chill debate during campaign[s]. If campaign statements can be policed, the court concluded, it would in short undermine democracy: the political process for selecting prosecutors should reflect the publics judgment as to the proper enforcement of the criminal laws. Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995).

The reason for this should be fairly obvious: the purpose of campaign rhetoric is to get elected, not formulate policylet alone govern. A would-be president has no legal obligation to the Constitution before taking the oath of office; he is merely a private citizen. (Perhaps, as in Trumps case, a blowhard and a braggart with half-formed ideas, but a private citizen nonetheless.) Once a candidate wins office, he or she is sworn to uphold the duties of that office, not fulfill every promise uttered during the campaign.

This is especially true of the president, who sits atop a vast executive branch that formulates and enforces myriad policies pursuant to its various functions. To say that Trump cant exercise certain executive powers because of what he said last year, or 20 years ago, is tantamount to saying he cant really be president because he holds views the judiciary finds offensive. After all, surely some Americans voted for Trump precisely because he promised to ban Muslims. In appealing to those voters, are we to assume Trump forfeited some of his constitutional powers?

Thankfully, the absurdity of imputing policy motives to the entire executive branch based on Trumps campaign slogans was not lost on every federal judge who heard arguments about the travel ban. One of the judges on the Ninth Circuit, which upheld a stay on Trumps first executive order back in January but declined to address the Establishment Clause question, recognized the folly of suggesting Trumps campaign rhetoric amounts to a violation of the First Amendment.

In a dissent filed in March, Judge Alex Kozinski lambasted his fellow judges for going on an evidentiary snark hunt to prove Trump meant what he said on the campaign trail about banning Muslims.

This is folly. Candidates say many things on the campaign trail; they are often contradictory or inflammatory. No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlubs only intention is to get elected. No Supreme Court caseindeed no case anywhere that I am aware ofsweeps so widely in probing politicians for unconstitutional motives. And why stop with the campaign? Personal histories, public and private, can become a scavenger hunt for statements that a clever lawyer can characterize as proof of a -phobia or an -ism, with the prefix depending on the constitutional challenge of the day.

When two Ninth Circuit judges suggested it was inappropriate for Kozinski to address the establishment question because it was not before the court, Kozinski wrote that his colleagues effort to muzzle criticism of an egregiously wrong panel opinion betrays their insecurity about the opinions legal analysis.

If there is a First Amendment issue in the case, Kozinski argued, it was about Trumps own free speech protections, not the Establishment Clause. After all, relying on campaign speeches and slogans to prove discriminatory intent would abrogate political candidates right to engage in free speech. This path is strewn with danger, writes Kozinski, citing a 2014 Supreme Court case, McCutcheon v. FEC. It will chill campaign speech, despite the fact that our most basic free speech principles have their fullest and most urgent application precisely to the conduct of campaigns for political office.

In the coming weeks and months, were going to keep hearing about the constitutionality of Trumps travel ban. Dont be fooled. This has nothing to do with the Constitution and everything to do with deep-seated contempt for Trumpand not just Trump, but every American who thinks a temporary ban on immigration from certain countries might be a good idea.

Continue reading here:
Trump's Travel Ban Has Nothing To Do With The First Amendment - The Federalist

Its too bad that the First Amendment of the U.S. Constitution is not deemed as important as the Second, at least to the present occupant of the White House.

And his party.

Last week, President Donald Trump flew to Harrisburg, Pennsylvania to lead a campaign rally of his followers. I could not possibly be more thrilled than to be more than 100 miles away from Washington swamp with much, much better people, he told the crowd in the state capitals Farm Show Complex and Expo Center.

In Trump World, the less desirable people left behind were 2,700 well-dressed denizens of that swamp, otherwise known as the White House Correspondents Association, as they gathered in the ballroom of the Washington Hilton Hotel on Connecticut Avenue. Trump is the first president to miss this annual event since 1981 when Ronald Reagan, who was recovering after an assassination attempt, nevertheless called in to extend greetings to the assembled.

Trump only had to travel 1.5 miles from 1600 Pennsylvania Avenue NW to the hotel, but chose to create an event where he could, yet again, bash the media. Instead, he went to Harrisburg. And to add insult to First Amendment injury, the day before, he appeared in Atlanta and addressed the annual convention of the National Rifle Association, an organization which robustly uses the First Amendment to promote the Second.

Where Richard Nixon once said that the press is your enemy, Trump is following in his footsteps. In slightly more than 100 days, Trump has unleashed a torrent of vitriol against those who work with words. Whether its the failing New York Times, dishonest reporters, or fake news in general, we are enduring a continuous episode of the surreal Reality Show hosted by that veteran showman, veteran self-promoter, veteran Atlantic City Boardwalk pitchman, but, most importantly, political rookie Donald Trump. Yes, Trump the rookie, the supreme narcissist who skipped the minor leagues by not running for sheriff, mayor, or Congress but thinks he can be successful in the majors by starting at the very top.

When you examine his often volatile reaction to critical news coverage, the rookie element and glaring inexperience is telling.

Trump, who must be a frequent patient of dermatologists due to his incredibly thin skin, has spent a lifetime threatening others with lawsuits. Now, his Chief of Staff, Reince Priebus, dropped a not so subtle warning that the administration is examining current libel law to allow the president to sue publications for stories he does not like. According to Talking Points Memo:

Indeed, the President often said during the Presidential campaign, and since, that he wished to change libel laws so that he would be able to sue for purposefully negative, and horrible and false articles and hit pieces.

The Supreme Court has ruled that libel damages can be awarded to public officials only as a result of actual malice. Unintentional factual inaccuracies are protected by the First Amendment, as is speech critical of the President.

As observers of this slow-motion train wreck of an administration, we see its attempts to pivot on major stories and scandals that are damaging and show the incompetence, conflicts-of-interest, and perhaps most damaging of all, its compromised nature due to Russian involvement in the election campaign. There is no hope for change, as behavior modification therapy will not work for Trump and his ghastly crew. The only question at this point might be if the train stops completely through resignation or impeachment.

As part of the cleanup of the mess created by Trump and his attacks on the First Amendment, it should be an expectation that future presidents, regardless of party, will tone down the homage extended to the NRA and instead honor the threshold importance of the First Amendment by appearing at the meetings of the American Society of Newspaper Editors, News Media Alliance, or even the Society of Professional Journalists . The damage caused by Trump and the shrill atmosphere created by the attacks on free speech and constitutional guarantees should demand no less.

We should hope.

In what seems another time and certainly a very different country, President John F. Kennedy felt it necessary to address the American Newspaper Publishers Association, now called the News Media Alliance, at the Waldorf Astoria Hotel in New York on April 27, 1961. The president spoke a little more than a week after the failed Bay of Pigs invasion in Cuba, assome in the Kennedy Administration felt that clues about the impending invasion were published in some major papers, possibly giving the Castro regime advance notice of the military action.

At the very beginning of his address, President Kennedy provided some ambiguity as to what was the purpose of his speech:

I have selected as the title of my remarks tonight The President and the Press. Some may suggest that this would be more naturally worded The President Versus the Press. But those are not my sentiments

The words that follow are provided here as a model for what a future, sane, and thoughtful president might say to the country as a way to provide a denouement on the damage caused by the Trump Administration in its challenge of the very role and purpose of an independent press and media.

President Kennedy continued:

No President should fear public scrutiny of his program. For from that scrutiny comes understanding, and from that understanding comes support or opposition. And both are necessary. I am not asking your newspapers to support the Administration, but I am asking your help in the tremendous task of informing and alerting the American people. For I have complete confidence in the response and dedication of our citizens whenever they are fully informed.

In perhaps the most eerie part of this long-ago speech, Kennedy might have looked into the future, offering a clear rationale for the very idea of a Fourth Estate, and by doing so providing the country with an antidote to act against the emergence of an authoritarian, Trump-like figure.

Without debate, without criticism, no Administration and no country can succeed and no republic can survive. That is why the Athenian lawmaker Solon decreed it a crime for any citizen to shrink from controversy. And that is why our press was protected by the First Amendment the only business in America specifically protected by the Constitution not primarily to amuse and entertain, not to emphasize the trivial and the sentimental, not to simply give the public what it wants but to inform, to arouse, to reflect, to state our dangers and our opportunities, to indicate our crises and our choices, to lead, mold, educate and sometimes even anger public opinion.

In our present time, it is the American public that is angry about the course of the country and the shrill tone of the president. The media only mirrors that anger and skepticism, yet Trump has labeled it the enemy.

He is wrong. Anyone who would attempt to intimidate the media or threaten to craft more restrictive libel laws as a way to undercut the First Amendment is the enemy of any citizen, irrespective of political persuasion.

It was Thomas Jeffersons belief that an informed citizenry is at the heart of a dynamic democracy. Likewise, it is also accurate to assert that in its watchdog and surveillance function, our nations media is performing quite well in informing and thus arming the citizenry against possible tyranny by a potentially authoritarian government.

Once upon a time, we had a thoughtful, articulate, dynamic president who spoke in complete sentences and who helped to define the role of a free press in the twentieth century. What he reminded us about was that there was only one type of business in this country that is afforded constitutional protection, yet it falls upon us in the twenty-first century to protect that business from presidential threats and intimidation, and, if necessary, peacefully assemble to prevent a coercive, powerful government from sustaining such threats.

Let us inform our political leaders in the executive and legislative branches that we can peacefully assemble without threat of arms, and that the pen in the form of a constitutionally protected media is mightier than the sword posed by the NRA and Second Amendment devotees.

We must therefore inform the uninformed President Trump that the First Amendment precedes the Second and is thus the most important guarantor of a free society. No other countervailing force, not Trump or the NRA, can change that.

For the future of this society, it cannot be any other way.

____________ Denis Smith is a retired school administrator and a former consultant in the Ohio Department of Educations charter school office. He writes about education issues as well as politics and constitutional reform.

Visit link:
In Trump World, Wouldn't It Be Great If The First Amendment Was As ... - Plunderbund

The Bill of Rights surely ranks as one of the most difficult documents for us, as Americans, to contend with.

Theres enough in that list of 10 rights to make each of us a little uncomfortable, depending on your political persuasion.

Me? I get hung up on the Second Amendment. I dislike guns and I have seen how much damage they can unleash on families and communities. Just ask the parents at Sandy Hook.

But its there and like it or not we, as a community, have to follow the law as interpreted by the U.S. Supreme Court no matter how wrong-headed we think the opinion is. If I respect the Constitution, I respect the rule of law.

Then theres the Fourth Amendment protection against unlawful searches of your property and person. It provides great protection for me and my family if the police come pounding on my door and want to search my house without a warrant.

But it also means that even if my neighbor is the nastiest drug dealer in the city, the police cannot crash through their door without cause or a warrant. And if the police dont play by the rules? The evidence might get tossed out of court and that nasty drug dealer goes free.

Then theres the Fifth Amendment right against self-incrimination, which led to the high court establishing the Miranda warning. You hear that in every TV cop show and again, if the police dont read defendants their rights at the time of arrest, a criminals statement just might get thrown out of court, even if it means a guilty person goes free.

Uncomfortable. But the law.

Perhaps the most vexing of all the amendments in the Bill of Rights is the first one you know, the one about free speech, a free press, freedom to worship or not, and the right to assemble.

I personally hope to never have to listen to the likes of white supremacist Richard Spencer talking about making white privilege great again as he did recently at Auburn University in Georgia. But as long as he wasnt inciting violence yes, there are restrictions that can be placed on speech he had a right to speak.

It should have been the same with Ann Coulter in Berkeley, California, where her speech was stopped because of a threat of violence. Whether you agree with her is beside the point. She and her followers have a right to free speech just as those who disagree with her have a right to protest peacefully.

That pesky First Amendment.

Indianas legislators showed this past legislative session that while they may love First Amendment protections for themselves, when it comes to high school journalists not so much. After pressure from principals, superintendents and the Department of Education, they refused to extend First Amendment protections to high school journalists and their advisors.

Order and control trumped the First Amendment.

Whats most disheartening about the failure of this piece of legislation is the way it undermines a real opportunity for students to learn from first-hand experience how the Constitution works.

What better civics education is there than to learn about our constitutionally protected freedoms than by living them?

Will there be mistakes? Yes, of course. Thats the price of a free press. And just as there are limits on speech there are limits on the press you deliberately print falsehoods and you can get sued.

Should that fear of students running amuck with their pens and notebooks override the chance to let them live the values we claim to extol in the Constitution? No, it shouldnt.

Some of our lawmakers would be much more comfortable allowing guns in school for protection, of course than would want a free and open student press.

Yes, the First Amendment is pesky and hard. And just because something is hard doesnt mean we quash it. Thats not how our democracy works.

Read the rest here:
Living the First Amendment is hard work - NUVO Newsweekly

Last year, students at Carmel High School were allowed to put up an anti-abortion sign. This year, a different group of students were told they could not hang a pro-abortion rights sign.

That is discrimination based on viewpoint, and that is a clear violation of the First Amendment. Naturally its time to bring in the American Civil Liberties Union of Indiana and take the school system to court.

Of course the story is a tad more complicated than that, and the episode should serve as a warning for school districts inclined to stray from their mission under the false impression that they must accommodate every student demand for this or that right.

A school is not a microcosm of the country, with students counted as citizens and school officials standing in for the government. A school is a structured learning environment in which anything not aimed at imparting knowledge must be put aside. True, students dont leave their rights at the schoolhouse door, but the rights they have are not the same as a citizens in dealing with government.

If schools choose to ignore that reality, they owe it to students to have clear rules that are widely disseminated and understood. This is what Carmel failed to do.

The school at first took down the anti-abortion sign last year. But was it put it back up for 10 days after the conservative legal group Liberty Counsel threatened legal action, arguing that the school had allowed other ideological messages on signs, including a donkey on a sign for a student club for Democrats and the use of a rainbow and the word pride on signs for a group supporting lesbian, gay, bisexual and transgender students. The anti-abortion sign said 3,000 Lives Are Ended Each Day and featured the word abortion changed to say adoption.

The school says groups may post signs only if they advertise group meetings. Lawyers for the school district say the new sign did not include the groups name or meeting details, which the sign last year did. But the ACLU, like the Liberty Counsel before, is citing all the previous ideological signs allowed.

Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana says the controversy over the new sign opens a can of worms, doesnt it?

Indeed, it does. And its not the students who are at fault.

(Fort Wayne) News-Sentinel.

More:
Another fine First Amendment mess - Lebanon Reporter

Editorial note: A shorter, word-length-appropriate version of this opinion column was submitted to the Washington Post. It was rejected. Every outlet always and should always have the right to accept or reject material according to their own editorial standards. Yet under the circumstances, with the subject at the White House Correspondents Dinner being the First Amendment and with Washington being at the very center of a dispute between the media and President Trump, it would seem a column addressing the subject with fresh, newsworthy comments from three prominent conservatives Rush Limbaugh, Sean Hannity and The American Spectators own R. Emmett Tyrrell, Jr. would be newsworthy. The Post disagreed. Which my own editorial comment here should highlight yet again just why the rise of conservative media and why President Trump gets applauded at rallies by so many Americans who, like the President, believe the mainstream media to be dishonest in its coverage.

The banner was hard to miss.

Hanging high above the head table of the White House Correspondents Dinner, underneath the name of the group was this line in all caps:

CELEBRATING THE FIRST AMENDMENT

Not to be an impolite guest (I was present courtesy of CNN) but the question that I had when I saw this banner was: Really?

In the course of the evening Watergates journalistic heroes Bob Woodward and Carl Bernstein spoke, with Woodward saying Mr. President, the media is not fake news. Bernstein made a point of saying that what was always needed was The best obtainable version of the truth, adding Yes, follow the money, but follow, also, the lies. This latter theme was also that of the WHCA President Jeff Mason of Reuters, who said this in addressing the absent President Trump directly: We are not fake news, we are not failing news organizations and we are not the enemy of the American people.

Meanwhile a 100 miles north in Harrisburg, President Trump was speaking to an arena-full of Americans who cheered him on when he attacked the incompetent, dishonest media and said: If the medias job is to be honest and to tell the truth, the media deserves a very, very big fat failing grade.

What caused me to question the message on that banner, and understand instantly why the Presidents audience cheered him on when he attacked the media, was the absence of two words from anyone on the podium. Those two words: Ann Coulter.

For the better part of a couple weeks Coulter, the conservative columnist, author, and Trump supporter, had been at the very center of a drama that went right to the heart of the First Amendment. Invited to speak at the University of California at Berkeley, she was unable to do so because of the very real threat of violence from the American Left. Let me say that again. An American columnist was denied her First Amendment rights with threats to her physical safety (and that of anyone considering attending her speech) and there was not word one about this from Messrs. Woodward and Bernstein or Mason.

How could such an obvious omission happen? To this conservative the reason was clear. What was on display all evening was not support for the First Amendment but rather support for liberals and their use of the First Amendment.

I decided to ask three prominent conservatives all of whom have had their First Amendment rights targeted over the years whether they have received support from the White House Correspondents Association when they were under attack.

Rush Limbaugh responded to my question as follows:

Of course not. Clinton called me a racist for defending Janet Reno after she was criticized by John Conyers. Rush only defended her because she was being attacked by a black guy. I was at the USA Today table. There was a huge reaction in the whole room. Disbelief and shock. Some embarrassed laughter, mostly groans. Chris Matthews approached me at the end of the dinner and said I could not let that stand, the president of the United States calling you a racist cannot stand.

He (Clinton) also agreed that I was a Big Fat Idiot while honoring Frankens book.

Sean Hannitys response was equally blunt:

1) Not one liberal. Not one speaks vs the weapon of Boycotts used vs conservatives to silence them. I call it Liberal Fascism. An organized and well funded effort to silence political opposition.

2) The media ran with a CHEAP HEADLINE last Saturday and Sunday about me after a false charge was made by a woman who has a nearly 15 year history of telling proven lies about me. 2 days after OReilly fired, she says for the first time ever that in 2003 that I invited her to a hotel room in Detroit.

You would think the media would do just a simple, basic, rudimentary, fundamental GOOGLE SEARCH and not run with such a slanderous headline.

3) Has anyone in the media ever spoken out about the payments being made to individuals to monitor EVERY SINGLE CONSERVATIVE radio and TV host in the hopes the hosts say something that can be used to boycott and silence them? Do they care to examine where these funds come from?

4) Has any liberal ever stood up for any conservative thats been silenced on a college campus?? How many liberals spoke out for Coulter?

I also made the query to the founding editor ofThe American Spectator,where I am a columnist. Long before I began writing for theSpectator,R. Emmett Tyrrell, Jr. and theSpectatorwere engaged in numerous investigations of then-President Clinton. One dealt with the Presidents relationships with various women. (It was theSpectatorwhich first brought to light the relationship between then-Governor Clinton and a state employee named Paula later revealed as Paula Jones.) The otherSpectatorinvestigation dealt with assorted charges made about Clinton political dealings in Arkansas. The latter resulted in a recommendation from then-Deputy U.S. Attorney General Eric Holder that The American Spectator itself be investigated by a special prosecutor, an investigation that lasted fourteen months and was a considerable expense in legal fees for a political magazine. There was, Tyrrell tells me, not a word from the White House Correspondents Association defending theSpectators First Amendment rights.

What are these three conservatives saying? In short and they are not alone in the conservative world there is a real belief that support for the First Amendment is situational with liberals and with the White House Correspondents Association. (Or am I repeating myself?)

Whether it is Ann Coulter at Berkeley or left-wing efforts to get Limbaugh and Hannity off the air or the use of the Department of Justice to investigateThe American Spectator or countless incidents on college campuses across the country in each and every case and so many more it seems to be liberals communicating to conservatives that what they really believe is the First Amendment for me but not for thee.

Following the WHCA dinner, the groups president, Mr. Mason, appeared on Tucker Carlsons Fox show to discuss the dinner. The conversation, in part, included this:

Turning to the ideology of the press, Carlson cited astudy published by Politico, which revealed that no registered Republicans were part of the White House press corps.

If you had a White House press corps that was 100 percent middle-aged white men, Carlson told Mason, there would be a full-blown outcry about the lack of diversity and I bet you $100 you would weigh in and say, Youre right, this doesnt look like America.

Do you think its OK that there are zero registered Republicans in the White House press corps? the host asked.

I think whats important is that we have a press corps thats made up of journalists who report the truth and who robustly report on the president of the United States, Mason answered.

Carlson wrapped up the discussion by asking Mason, Is political diversity important to you?

Is diversity important? Of course, Mason said. Is it my job to talk about what journalists in the White House press corps do? Yes. What they do is report the news regardless of what political party controls the White House.

I wish I believed that, Carlson answered. I dont.

That Saturday night at the Washington Hilton I too heard nothing to abuse conservatives of that view. To borrow from my CNN colleague Carl Bernstein, when it comes to the best obtainable version of the truth on liberal support for the First Amendment, for conservatives that support seems far too often to be situational at best.

Which in turn makes it easy to understand exactly why President Trumps attacks on the media received cheers at that rally in Harrisburg.

See the original post here:
The White House Correspondents' Association and the First Amendment - American Spectator