Category Archives: First Amendment

After assembling, however, an irate motorist pulled up and yelled go home. Protesters responded cooly with Well pray for you! The motorist drove off only to return moments later yelling more abuses. To be heard over the insults, the protesters yelled back, Well pray for you! The exchange was brief and nonviolent. Nevertheless, two Bemidji Police vehicles soon arrived. One officer entered the bank. Another officer approached the protesters. The officer acknowledged their peaceful assembly and thanked them for exercising their First Amendment rights. After polite discussion, the officer shook hands with protesters. They even took a group photo! Hallelujah. Libertys light stills shines. But for how long?

The right to peaceful assembly is protected under the First Amendment. It is the cornerstone to a healthy democracy. Yet to date, 18 states have introduced legislation stiffening penalties for peaceful demonstrators. In Minnesota, HF 322 represents such a threat. Although the wording appears benign, its intent is perhaps less innocent. If demonstration activity is deemed unlawful, governmental units could sue individuals to recover public safety response costs. Minnesota Statute 609.705 defines unlawful as disturbing or threatening the public peace. Who decides an assembly is disturbing the peace? Will HF 322 dissuade law-abiding citizens from public demonstration? Yes, probably. Is that the true intent of the bill? Probably, yes.

If protesting raises awareness, perchance increasing others willingness to demonstrate, then unprincipled politicians may seek to deter this right. James Madison, co-author of the U.S. Constitution and Bill of Rights, recognized this threat. I share his words, ...there are more instances of abridgement of freedom of the people by gradual and silent encroachment (by those in power) than by violent and sudden usurpations. HF 322 is such an encroachment representing the gradual effort to criminalize protesters.

This is a defining chapter in American democracy. It is my hope, despite our partisan differences, we fight to maintain this fundamental freedom. Whether you are a water protector or a pro-lifer, this bill should concern you and motivate us to collectively defend our most rudimentary rights.

Susan Kedzie

On behalf of Indivisible Bemidji, a local effort to raise awareness on social and environmental issues.

See the original post here:
LETTER TO THE EDITOR: We must defend our First Amendment rights - Bemidji Pioneer

Sometimes First Amendment speech can actually save First Amendment speech, and that's a very good thing. Due to widespread opposition, Arizona's Republican House speaker decided to kill a bill that would have made it a criminal offenseto plan a protest that led to rioting. The AP writes:

The measure passed last week by the Senate drew nationwide attention, particularly from civil libertarians, because it classified violent protest as an organized crime and said protesters who didn't initially intend to riot could still face criminal charges. That attention led Speaker J.D. Mesnard to decide Monday to kill it for the session.

Mesnard told The Associated Press that people all across the country now believe that the Arizona Legislature is trying to enact a law that will suppress their First Amendment right to assemble.

"It's gotten a lot of attention, and frankly whether it's fair or unfair, whether its accurate or inaccurate, at this point doesn't matter," he told the AP. "That's certainly not what the Legislature wants to be about I know that's not what the sponsor wanted in the first place. The best way to send a very clear signal that we're not doing it is to not move the bill."

Chalk one up for the First Amendment. Weneed it now more than ever.

Read this article:
Arizona GOP leader kills bill that trampled First Amendment speech after widespread outcry - Daily Kos

Traditionally, I avoid using this column to discuss issues that directly relate to my role as an attorney, as I find such practice self-serving and of dubious value for you, dear reader.

Yet, for every rule there is an exception, and the issue soon to be debated in a New York City court has such profound implications for businesses throughout the state that it is worth the time to examine the matter.

Simply distilled, a state law applicable only to NYC currently makes it unlawful to advertise occupancy or use of dwelling units where that occupancy would violate the Multiple Dwelling Law. This improper gag law is so broadly written that it covers literally any form of communication. If a similar statute is adopted with state wide application it would threaten literally any company or individual that seeks to contract for goods or services, whether through traditional mediums or the Internet. This was a law the state legislature granted to the city with the power to enforce, so the potential for this legislation to spread like a toxic weed throughout New York is real (although how it was enacted may be fatally flawed).

Originally designed to constrain Airbnbs widely successful business model of allowing apartment owners and tenants to briefly rent out their dwellings, the city capitulated in enforcing the law against the multibillion dollar Airbnb corporation and even stipulated in Federal Court that City Hall will permanently refrain from taking any action to enforce it against Airbnb.

What New York City forgot is that, irrespective of whether you are up against Airbnb or the lonely apartment owner or tenant, you cant violate the First Amendment. By prohibiting rental advertisements, the city imposes a content-based speech restriction subject to what the law calls heightened judicial scrutiny. It attempts to create, in essence, a legal house of mirrors that the city hopes defendants wont possibly navigate in their attempt to defend themselves.

More threatening for the rest of us who arent looking to offer short term rentals, the city law chills protected commercial speech. The threat of fines and liability would likely impose a form of self-censorship in the marketplace as the interpretation of what is permitted and what is prohibited becomes vague, blurred and problematic. If I ran a magazine, newspaper, broadcast operation or advertising agency, I would be extremely concerned about this laws draconian reach.

The city law also violates the First Amendment and the Due Process Clause of the Fourteenth Amendment because it seeks to impose strict civil and criminal liability against alleged violators. Specifically, there is no requirement in the statute that an alleged violator know that an advertisement is unlawful. Fortunately, there is precedent here. The U.S. Supreme Court has rejected such efforts to impose strict liability for the dissemination of information, even where, unlike here, the content itself lacks First Amendment protection.

Of course, the City could simply go after those who actually rent units unlawfully, rather than those that merely advertise such rentals, but they seem to have decided there is far easier to pick up a lot of money by just spotting the ads than by actually knocking on the doors of alleged violators to see if a violation has in fact occurred. In fact, the city has recently allocated several million dollars to fund inspectors whose task is to identify and fine apartment owners and tenants who post illegal listings. It is a fair bet they expect to make back that investment quickly by tabulating illegal ads and then sending notices costing $1,000 per first violation, $5,000 per second violation and $7500 per third violation gotcha.

Prohibition taught America that flawed laws and ill-conceived enforcement breeds nothing but contempt for government, for trying to make criminals out of all of us. The City of New York, and by extension the New York State Legislature, would better serve the public if they would promptly review their illegal assault on freedom of commercial speech and strike this improper unconstitutional statute from the books before the courts do it for them.

Rosenberg, a graduate of St. Johns University Law School and resident of Old Westbury, is senior founding with Rosenberg, Calica & Birney LLP, a Garden City law firm.

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Rosenberg: Airbnb law amounts to a first Amendment violation - Long Island Business News (subscription)

President Trumps attacks on the fake news media the enem[ies] of the people, including the New York Times, CNN and NBC News would be hilarious, coming from a guy who routinely makes up facts (on everything from the murder rateto the number of people casting ballots illegally (and who they voted for!) in the presidential election to the size of the trade deficit to the number of people attending his inauguration to . . . ) and whose election, we now know, was supported by a large number of disinformation websites operated and/or funded by a hostile foreign government, were it not so disturbing.

It made me wonder: Does last weeks Gaggle Order the decision to ban the New York Times, CNN, Politico, Buzz Feed, and the Los Angeles Times reporters from Sean Spicerspress gaggle violate the First Amendment?

Turns out thats a close question. It certainly looks, at first glance, like a prohibited content-based (or possibly even viewpoint-based) discrimination limiting the affected outletsability to receive information, which would subject it to the highest form of First Amendment scrutiny and require some compelling justification to be constitutional. On the other hand, surely the First Amendment doesnt prevent a president (or his press secretary) from, say, granting an exclusive interview (or providing a leak) to one (favored) reporter or paper or TV network and not another.

Theres actually an old D.C. Circuit case that is rather closely on point: Sherrill v. Knight (569 F.2d 124 (1977), available here). Sherrill, the Washington correspondent for the Nation a publication with well-known left-wing proclivities applied for and was denied a White House press pass (during LBJs presidency). The denial, however, was apparently due not to any content- or viewpoint-based animus towards Sherrill or to the Nation, but resulted solely from the determination of the Secret Service, after investigating Mr. Sherrill, that he not be issued the pass although the Secret Service refused to reveal to Sherrill the information it had on which the denial was based.

The court concluded that while it would not order the White House to issue the pass, it would order the White House to provide Sherrill with notice, opportunity to rebut, and a written decision regarding his application.

The court held (and the government itself conceded) that the denial of a White House press pass potentially infringes upon first amendment guarantees. . . . [and] itis violative of the first amendment if it is based upon the content of the journalists speech or otherwise discriminates against a class of protected speech. . . . Arbitrary or content-based criteria for press pass issuance are prohibited under the first amendment.

The court rejected the governments argument that because the public has no special right of access to the White House, and because the right of access due the press generally is no greater than that due the general public, denial of a White House press pass is violative of the first amendment only if it is based upon the content of the journalists speech or otherwise discriminates against a class of protected speech.

[W]e are presented here with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide Washington-based journalists, whereas most of the White House itself, and press facilities in particular, have not been made available to the general public. White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded news-gathering under the first amendment guarantee of freedom of the press, see Branzburg v. Hayes, 408 U.S. 665, 681, 707 (1972); Pell v. Procunier, 417 U.S. 817, 829-35 (1974), requires that this access not be denied arbitrarily or for less than compelling reasons. See Southeastern Promotions v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Lovell v. Griffin, 303 U.S. 444 (1938).

Given the important first amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists, the court held that such refusal must be based on a compelling governmental interest.

Clearly, protection of the president is a compelling, even an overwhelming, interest. The court had no basis for rejecting the explicit finding of the District Court that . . .denial of a press pass to [Sherrill] proceeded solely from concern for the physical security of the President, and thus the court was unwilling to order the White House to issue Sherrill a pass. It did, however, order the White House to provide notice [to Sherrill] of the factual bases for denial, an opportunity for him to respond to these, and a final written statement of the reasons for denial, which it called a minimum prerequisite for ensuring that the denial is indeed in furtherance of Presidential protection, rather than based on arbitrary or less than compelling reasons.

So if the White House had revoked a New YorkTimes reporters press pass, or denied access to the White House press room, there would be strong grounds for a claim of unconstitutional executive action. But at the same time, the First Amendment doesnt prevent a president from, say, granting an exclusive interview to one (favored) reporter or TV network and not another; as the court put it, it would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all.

So back to Spicer. The question here seems to turn on what, exactly, is this press gaggle? Is it more closely analogous to a press briefing, ostensibly open to any and all bona fide reporters? Or is it more like an interview, in connection with which the president (or his press secretary) has considerable discretion to discriminate between those he does or doesnt invite?

I cant say for certain; I had never heard of these press gaggles before, and I dont have a lot of information about how they operate, though it does sound like its closer to the latter than to the former.

And while were on the subject, what is particularly galling to me, and to anyone who calls him/herself a Jeffersonian as I do, is the way that Trump has enlisted Jeffersons support in his attacks on the press. For instance, at aFlorida rallylast week, he said:

They [the press] have their own agenda and their agenda is not your agenda. In fact, Thomas Jefferson said, nothing can be believed which is seen in a newspaper. Truth itself, he said, becomes suspicious by being put into that polluted vehicle, that was June 14, my birthday, 1807. But despite all their lies, misrepresentations, and false stories, they could not defeat us in the primaries, and they could not defeat us in the general election, and we will continue to expose them for what they are, and most importantly, we will continue to win, win, win.

It is certainly the case that Jefferson had a very rocky relationship with the press, and said some very uncomplimentary things (as in the 1807 letter to John Norvellfrom which Trump was quoting) about them, and about what he called elsewhere the putrid state into which our newspapers have passed and the malignity, the vulgarity, and mendacious spirit of those who write for them. . . . These ordures are rapidly depraving the public taste and lessening its relish for sound food.

But Jefferson unlike some presidents I am aware of understood very well the difference between his private disputes with the press and his personal views about press activity expressed inhis private correspondence,on the one hand, and his statements and actions taken in his public capacity and his public writings on the other, in which he was quite possibly the strongest supporter of a free and unfettered press that this country has ever had.

He rode into office in 1800, of course, on the wave of public indignation about the Adams administrations Sedition Act, which made it a federal crime punishable by up to two years in prison to criticize the government to write, print, utter, or publish, any malicious writings against the government of the United States, or either House of Congress, or the President, or anything that would bring them into disrepute.

Heres the text of the Sedition Act, which is worth reading if youve not read it before:

And be it further enacted, That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

Scores of newspaper editors had been tossed into jail, and it was Jefferson, along with James Madison, who led the fight to declare theact unconstitutional.***

*** The Virginia Resolution, passed by the state assembly (and co-authored by Jefferson and Madison) declared that the Sedition Act (along with its sister statute, the Alien Act) was unconstitutional:

It exercises a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.

[The Virginia Constitution] expressly declares that among other essential rights, the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States, it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn to the most palpable violation of one of the Rights declared and secured in the [U.S.] constitution, and to the establishment of a precedent which may be fatal to the others.

[T]he General Assembly doth solemenly declare that the acts aforesaid are unconstitutional

A wonderful anecdote possibly anecdotal from Jeffersons presidential years captures his attitude well.

In 1804, the celebrated traveller, Baron Humboldt, called on the President one day, and was received into his office. On taking up one of the public journals which lay upon the table, he was shocked to find its columns teeming with the most wanton abuse and licentious calumnies of the President. He threw it down with indignation, exclaiming, Why do you not have the fellow hung who dares to write these abominable lies?

The President smiled at the warmth of the Baron, and replied What! hang the guardians of the public morals? No sir, rather would I protect the spirit of freedom which dictates even that degree of abuse. Put that paper into your pocket, my good friend, carry it with you to Europe, and when you hear any one doubt the reality of American freedom, show them that paper, and tell them where you found it.Sir, the country where public men are amenable to public opinion; where not only their official measures, but their private morals, are open to the scrutiny and animadversion of every citizen, is more secure from despotism and corruption, than it could be rendered by the wisest code of laws, or best formed constitution. Party spirit may sometimes blacken, and its erroneous opinions may sometimes injure; but, in general, it will prove the best guardian of a pure and wise administration; it will detect and expose vice and corruption, check the encroachments of power, and resist oppression; sir, it is an abler protector of the peoples rights, than arms or laws.

But is it not shocking that virtuous characters should be defamed? replied the Baron. Let their actions refute such libels, continued the President; believe me, virtue is not long darkened by the clouds of calumny, and the temporary pain which it causes is infinitely overweighed by the safety it insures against degeneracy in the principles and conduct of public functionaries. When a man assumes a public trust, he should consider himself as public property, and justly liable to the inspection and vigilance of public opinion; and the more sensibly he is made to feel his dependence, the less danger will there be of his abuse of power, which is that rock on which good governments, and the peoples rights, have been so often wrecked.

[from Sketches of the Life, Writings, and Opinions of Thomas Jefferson (1832) by B. L. Rayner]

Jefferson truly believed and acted always in accordance with the belief that free speech and a free press were the two indispensable conditions for maintaining our freedom in the face of abusive governmental power.

Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it. . . .Where the press is free and every man able to read, all is safe.To preserve the freedom of the human mind and freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, and speak as we think, the condition of man will proceed in improvement.

No experiment can be more interesting than that we are now trying, and which we trust will end in establishing that man may be governed by reason and truth. Our first object should therefore be to leave open to him all the avenues to truth. The most effectual agent hitherto found is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions.

An executive strictly limited, the right of war vested in the legislative body, a rigid economy of the public contributions, and absolute interdiction of all useless expences, will go far towards keeping the government honest and unoppressive. But the only security of all is in a free press.The force of public opinion cannot be resisted, when permitted freely to be expressed. the agitation it produces must be submitted to, for it is necessary to keep the waters pure.

He could not have been clearer: a rambunctious and occasionally scurrilous and abusive press and if you think the press is a problem today on these grounds, you shouldread the papers from 1802 or thereabouts is the price we pay to maintain and safeguard all of our other rights. It is so difficult to draw a clear line of separation between the abuse and the wholesome use of the press, that as yet we have found it better to trust the public judgment, rather than the magistrate, with the discrimination between truth and falsehood.Considering the great importance to the public liberty of the freedom of the press, and the difficulty of submitting it to very precise rules, the laws have thought it less mischievous to give greater scope to its freedom than to the restraint of it.

So if Trump is channeling any historical figure in calling out the press as the enemies of the people, it is Joseph Stalin, or possibly Robespierre, not Thomas Jefferson.

See the article here:
Trump, the press, the First Amendment and Thomas Jefferson - The ... - Washington Post

The facade of the Newseum in Washington, DC, features the First Amendment. Photo via PublicDomainPictures.net.

Attorney Floyd Abrams, who represented The New York Times in the 1971 Pentagon Papers case and went on to become Americas leading First Amendment litigator, talked with CJR about President Trumps unprecedented assault on the press, whether leaks from government officials are appropriate, and how the growing acceptance of speech restrictions is an ominous sign for our democracy. The conversation has been edited for length and clarity.

CJR: I know youre busy, so lets get straight to it. Shortly after the election, you said Donald Trump may be the greatest threat to the First Amendment since the passage of the Sedition Act of 1798. Why is he a threat?

Abrams: I dont think weve had anyone who ran for the presidency in a manner which suggested the level of hostility to the press than did Donald Trump. And we certainly havent had any president who has made as a central element of his presentation while in office a critique of such venom and threat as weve heard in the last month. Now, we dont know how much is talk and what if anything he may do as president apart from the impact of his words. That in and of itself is important. Any effort to delegitimize the press as a whole and any recitation of statements such the one just a few days ago, saying that the press is the enemy of the American people, itself raises serious issues even if he never took any legal steps against the press. Words matter. And the words of the president matter particularly. So a president that basically tells the people that the press is its enemy is engaged in a seriousand deliberately seriousthreat to the legitimacy of the press and the role it plays in American society.

CJR: How do you see this as unique to Trump as opposed to say the Nixon administration? Is this more of a wholesale condemnation of the press?

Abrams: Yes. This is an across the board denunciation of any and all press organizations that have published or carried stories which have been critical of the president. That goes well beyond anything President Nixon did. That said, its perfectly true to say that throughout American history weve had presidents who disparaged the pressJefferson himself did that more than once, sometimes amusingly, and sometimes not. Teddy Roosevelt authorized a criminal proceeding to be brought against Joseph Pulitzer for certain stories about the construction of the Panama Canal. So, its still earlyvery earlyin the Trump administration, but the signs are troubling, and the repeated effort to delegitimize the press as a whole is something new and extremely disturbing.

CJR: How could Trump, with his executive powers, actually launch an assault on the press that could threaten the First Amendment?

Abrams: He could do some of the things that President Nixon made some efforts at doing. The Internal Revenue Service has confidential information about the press leaders as well as everyone else. The Federal Communications Commission has broad authority over the broadcast medium. The Department of Justice has authority to determine when to bring Espionage Act claims. So, there are areas of governmental power and authority which could be called upon if a president were of a mind to do so and was willing to engage in a still more overheated public debate about the bona fides of any effort to do so.

CJR: Trump and others have denounced the culture of illegal leaks in Washington and called the deep state a threat to our democracy. Im wondering, what do you see as the difference between leaks by Edward Snowden or Daniel Ellsberg and their role in a functioning democracy, and the recent leak about National Security Adviser Michael Flynn, who was forced to resign after information was released about his meeting with Russian agents before Trump took office?

Abrams: First, let me say that Im not in favor of all leaks. I dont think the government should simply be open to anyone who has access to it, and I think that the behavior of WikiLeaksand in my view sometimes the behavior of Edward Snowdenmakes that case. I think there were documents, highly classified documents, made available by Snowden that had nothing to do with domestic surveillance, and a good deal to do with the ordinary and entirely proper efforts of the United States to protect itself in a dangerous world. That said, however, the information provided about former General Flynn seemed to me amongst the most important sort of data that served the public interest in becoming public. I mean here is a situation in which it appears that the very day that President Obama imposed sanctions on Russia that there were conversations, the substance of which we dont yet know, but conversations between General Flynn and a Russian ambassador and perhaps other Russian authorities. So from my perspective the central issue about him is not that he lied about it to the vice president. Vice presidents have been ignored throughout American history, and Im sure theyve been lied to more than once by people who viewed themselves as having more relevant positions. What concerns me is the possibility that General Flynn was essentially saying to a foreign nation that is adverse to our interests: Pay no attention to what the president of the United States is doing, well take care of that down the road. That would be highly improper and perhaps illegal.

CJR: So when people say Snowden was praised for revealing the surveillance of ordinary citizens, which is what people who use this argument say Michael Flynn was at the time, as well as Paul Manafort, Trumps former campaign manager, they are in fact not just ordinary citizens when they are speaking with foreign actors that are known agents, is that correct?

Abrams: Yes. A person who is closely involved with a president-elect is hardly the same as the people that WikiLeaks exposed by printing or making available the Social Security numbers of every sundry employee whose documents happen to come into WikiLeaks possession. So the more important the person and the more the person has a potentially direct impact on American public policy, let alone American national security, the more defensible it is in certain circumstances to find out information about his behavior and to reveal it to the public. And I think thats precisely where the revelations about General Flynn fit.

CJR: This administration has targeted the use of anonymous sources in particular, arguing that they are somehow fake or just a product of leaks with political intent. Do you think the press can do a better job of using anonymous sources?

Abrams: Well, a part of this relates to the manner of presentation. Is there a more revealing way to let the public know why the journalistic organization believes these sources are credible? One way they can do that, The New York Times and other publication routinely do, is use numbers. Six confidential sources said this. Where there is a way to identify why this source is credible, without revealing the identity of the source, or providing too much identity on how to determine who the source is, it should be followed. I dont think this is a fake news problem, this is a credibility problem. And its very important at this time that the press say as much as they possible can justifying their reliance on the sources that they have. Otherwise, you just wind up with White House Chief of Staff Reince Priebus or President Trump saying there are no sources, and no one having any basis to judge apart from ones own view as to the credibility of the publisher thats offering this information to the public.

CJR: In that same vein, youve said that the press may need to go on the offensive in terms of using litigation against claims by this administration that certain news stories are lies and certain news organizations progenitors of fake news.

Abrams: What Ive said is that there are situations that I could imagine in which statements made by the president or people high in his administration could give rise to libel litigation. Every other democratic nation that I can think of, all of which provide less First Amendment protection than we do, have some body of libel law, and libel suits are brought under them. I dont believe that its illegitimate for the press to avail itself of libel law in certain extraordinary circumstances. Now no one should know better than the press that we protect under the First Amendment a high levelan extraordinary levelof name calling, of generalizations, and rhetorical hyperbole. We do that on purpose. And I dont think that a general statementfor example, that the news is fakeis anything but that. The president is entitled to First Amendment rights as well as everyone else. And its important for the public to be able to hear and pass judgment on the president, and what hes saying, and what hes thinking. But there are things that might be said about particular journalists or particular news organizations which are false and known to be false by the person saying them. While the press is understandably used to defending libel suits, it ought to bear in mind that it has rights, too. And if the charges against it are clear enough, false enoughobviously known to be falseI think it should not give up the chance to use all the protections that the law affords it.

CJR: You famously represented the plaintiff in Citizens United defending the First Amendment rights of a conservative nonprofit corporation. Do you see the assault on free speech coming not just from Trump but also from speech codes and other speech restrictions on college campuses? Is there some relationship between whats happening with restrictions on speech on the left and whats happening on the right?

Abrams: I dont think one causes the other. But I do think that the farther down the road we go of limiting speech, whether its of the left or the right, the easier it is to use that precedent to limit others speech. So, yes, on campuses one of the main victims, and they are victims, of suppression of speech has been conservative groups. At Fordham University in 2012 here in New York, for example, the Republican Club wanted to invite Ann Coulter to speak and they werent allowed to do it. Basically the school said it would be alright if you had her on a panel. Thats a sort of disgraceful suppression of speech, and its occurred elsewhere at many universities. In 2013, the New York City police commissioner at the time, Ray Kelly, was shouted down at Brown University. Last year, the Israeli mayor of Jerusalem was shouted down at San Francisco State. Weve got a lot of situations in which speech has been limited or suppressed in an unacceptable way. Now I have to say, I dont think that President Trump would behave any differently than he does, or would have any different views than he does, whether or not this campus plague of speech suppression had occurred. But I am concerned that there has been on both sides and in a number of different contexts a willingness to limit speech, punish speakers, and otherwise act in a contrary way to both the law and the spirit of the First Amendment.

CJR: A 2015 survey of some 800 undergraduate students, sponsored by the William F. Buckley Jr. Program at Yale, found that 51 percent of students favor their school having speech codes and trigger warnings. Nearly one-third of the students could not name the constitutional amendment dealing with free speech. And 35 percent said that the First Amendment does not protect hate speech. Does that make it easier for the president and his administration to attack speech they disapprove of and the press in general?

Abrams: Well, yes it does. Ive thought for some time that one of the real contributions of any administration would be to take whatever steps they could to re-impose a requirement of a civics course in junior high schools or high schools in America. We need people who are educated about the Constitution in general and the First Amendment in particular at young ages, not the moment they get into college. But to the extent that we are moving towards living in a nation that simply accepts the notion that speech which is viewed as unhealthy or troubling should not occur, First Amendment norms fall easily. And to be clear, I mean First Amendment norms on the broadest level not just legal violations of the First Amendment but what I referred to earlier as the spirit of the First Amendment; that is an acceptance of the notion that people will have a lot of different views on a lot of different subjects, many of which will be difficult or even impossible to seem to live with, but which we at our best have always protected.

CJR: Its interesting that you bring up that civics course. I was just discussing this with Jeffrey Herbst, president of the Newseum in Washington, DC, which does a lot of outreach to try to teach young people about the First Amendment, but also about how to be a consumer of news, which to me seems extremely important.

Abrams: I couldnt agree more. And this one is not Donald Trumps fault, or one partys fault, or one view of the countrys fault. We really have abandoned our children to a very great degree in terms of teaching them what it is that makes the country so special, including the Declaration of Independence, the Constitution, the First Amendment. And its something which I think has to be taught while people are young. I dont blame college kids who get in and want people to behave nicely to each other. A lot of bad speech is nice speech. So it asks a lot of them to just pick up the notion that this is the price we have to pay to live in a free country, and that sort of teaching has to start much earlier.

CJR: Final question. Are you hopeful that, as much change as weve gone through in the news industry, the First Amendment will prevail and well continue to see the presss watchdog role played in different forms, through different business models, online and elsewhere?

Abrams: On that I am optimistic. I think the public wants it. I think there will be a market for it. Whether the press will be powerful enough to fend off presidential power is one issue. But on the broader issue of whether were likely to continue to have a press that exists in a meaningful way and does continue to fight the good fight, I think thats more likely than not. Thats one of the big advantages of having written the Bill of Rights down. I start out my latest book, The Soul of the First Amendment, talking about the Framers arguing whether to have a Bill of Rights at all. In Philadelphia, they voted against the Bill of Rightsunanimously. And Alexander Hamilton wrote in The Federalist, why should we write down something which is so unnecessary? We never said Congress could limit the press; why do we have to say it cant? And if the ultimate decision had not been made to have a written First Amendmentwhich is law, not just a political-science essaywe would live in a very different country. Because we have a First Amendment, I think it will continue to protect us against the widest range of challenges.

Read more:
Q&A: Floyd Abrams on the battle for the soul of the First Amendment - Columbia Journalism Review

The Goodwins

This weekend, Forbes carried an excellent story about PLFs fight on behalf of Edward and Delanie Goodwin. In July, PLF attorneys filed a First Amendment challenge to protect the Goodwins right to speak on their own private property. Walton County banned signs on privately owned beaches last year, hoping to allow the public to trespass on private beaches without having to pay for the use. County officials threatened the Goodwins with large fines for keeping two private property signs and one small sign saying If Walton County Wants My Property, It Must Pay For It U.S. Constitution.

In September, the County agreed to temporarily stop enforcing the sign ban. But then in October, it passed an ordinance declaring that the public has a right of custom to use private beaches across the entire county. PLF responded by challenging the Countys blatant land grab as a violation of the U.S. Constitution.

Today, on National Review, George Leef shares more about the Goodwins case, stating,

I read about lots of cases of governmental villainy, but this one is among the worst.

National Reviews Roger Clegg also gave PLF a special shout-out for representing the Goodwins for free (as we do for all of our clients, thanks to our donors generosity). He said,

The generosity and inclusive spirit of PLF are underscored by the fact that, even though it is named after that West Coast ocean, it is happy to litigate on behalf of the owners of beachfront property in Northwest Florida.

Clegg is right. We have cases from coast to coast, with offices in Palm Beach Gardens, Florida; Arlington, Virginia; Bellevue, Washington; Honolulu, Hawaii; and Sacramento, California. We have cases pending in many more states, because government poses threats to liberty across the nation. As Leef wrote this weekend,

At all levels, government poses constant threats to our rights and only through eternal vigilance, as Thomas Jefferson observed, can we protect them.

Read the rest of Leefs excellent Forbes article about the Goodwin casehere.

Original post:
Goodwins' fight against land grab and First Amendment violations gaining national attention - Pacific Legal Foundation (PLF) (press release) (blog)

BY: Andrew Kugle February 28, 2017 2:00 pm

An anti-Donald Trump protester yelled at a police officer for not stopping supporters of the president from holding a small rally, according to a YouTube video uploaded on Feb. 19.

The video showed several Trump supporters and anti-Trump protestersyelling back and forth ateach other.

One Trump supporter on a megaphone called the anti-Trump protestersthe "most racist people that ever walked the face of the Earth."

Several police officers enteredthescene to create a barrier between the two sides. One anti-Trump protester took this as a sign that the police weresupporting the pro-Trump rally.

"So you are here to support their rally so they can do this and we can't," one female protestersaid.

The police officer tried to explain to the protester that all they were trying to do was create a buffer between the two sides as the pro-Trump man on the mega phone proceeded toyell, "You're the baby of an illegal alien."

The anti-Trump woman did not seem to understand the police officer. She went on to accuse the police officers of standing by the pro-Trump rally. The officer attempted to explain to the woman that both sides have a First Amendment right.

The video continued with shouting and yelling from both sides.

At one point, the man on the mega phone said to the protesters, "We are going to deport every each and one of you."

Go here to see the original:
Anti-Trump Protester Yelling at Police Officer Appears Not to Understand First Amendment - Washington Free Beacon

President Donald Trumps war on the news media violates the spirit of the free press. How far can he go before he violates the letter of the First Amendment? Case in point: the exclusion of CNN, the New York Times, Politico and other media outlets from a White House press briefing Friday. It violates the basic constitutional ideal that the government cant discriminate among various speakers on the basis of their viewpoints. Under existing case law, however, the exclusion probably doesnt violate the Constitution, because the news outlets remain free to speak despite losing a degree of access.

To see why the White Houses actions were so constitutionally pernicious, begin with the U.S. Supreme Courts modern interpretation of the First Amendment. The core concept is that the government cant target certain ideas because of the perspective that they embody. The court calls this viewpoint discrimination. And its considered so serious a violation of free speech that it applies in areas that were traditionally considered exempt from the First Amendment, such as obscenity and libel.

If the goal of the First Amendment is to facilitate a free marketplace of ideas, viewpoint discrimination puts the governments thumb on the scale to the benefit of some ideas and the detriment of others. It makes the marketplace unfree.

If you prefer to think of the purpose of free speech as facilitating political participation by all citizens, viewpoint discrimination is equally wrong. Instead of allowing all ideas to contend to produce the political truth that will guide policy, viewpoint discrimination favors those with certain political ideas over others who disagree.

Plainly, then, the exclusion of some news media from Fridays off-camera gaggle with press secretary Sean Spicer violates the ideal that the government should preserve viewpoint neutrality. The whole point of excluding those news organizations was to punish them for expressing ideas Trump doesnt like and to favor alternative organizations the president prefers.

The exclusion comes close to violating existing First Amendment law. Certainly the government couldnt condition the exercise of a First Amendment right on a news organizations viewpoint. If reporters are allowed to participate in certain conversations -- and therefore report firsthand on them -- only if they take the government line, that could be construed as an unconstitutional condition on their speech.

Another way that the exclusion could be seen to violate existing doctrine is if the press gaggle is understood as a government-created forum for conversation with a White House representative. In such a limited public forum, the government may choose the subject matter. But its flatly prohibited from discriminating against certain participants on the basis of their viewpoints.

The counterargument to both approaches would be that the excluded organizations arent being prohibited from saying whatever they want. Theyre just being denied access. And theres no constitutional right to a private audience with a government official, even an official spokesman.

For example, the president can certainly choose among various possible interviewers -- and may lawfully consider the interviewers viewpoint in making that decision.

A court applying current doctrine might well adopt this narrow conception of the informal press gaggle. But that approach shows the limits of interpreting the First Amendment in the light of past practice when the president is devoted to finding new ways to limit the press.

In practice, blocking access for some organizations while providing preferred access for others is intended precisely to affect what the excluded organizations say. If youre in the room, you can report on what was said directly, without quoting another source.

Whats more, the news organizations arent passive recipients of whatever the spokesperson happens to say. The gaggle is a dialogue in which the questions may matter as much as the answers.

In that sense, the reporters participating in the gaggle arent just passively listening. Theyre actively speaking. Limiting attendance to preferred news organizations is deeply in conflict with principle of viewpoint discrimination.

The Trump administration may think its being cute by limiting press access without directly prohibiting speech. But a president who says he loves the First Amendment should be held to the standard of loving its values, not just its technical rules as currently interpreted.

The courts should be open to a broader interpretation of the First Amendment to fit the new challenges of the moment. If they arent, the freedom of the press runs the risk of becoming obsolete.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

Read the rest here:
Trump's Love-Hate Relationship With the First Amendment ... - Bloomberg

The First Amendment is stronger than ever, and is being exercised more freely and aggressively than at any time in our nations history.

That may seem a surprising conclusion based on the handwringing from Big Media outlets like CNN, MSNBC, ABC, CBS, NBC, The New York Times, the Washington Post and others who claim that the First Amendment is under attack from President Trump. But it is nevertheless true.

The Big Media outlets are doing their best to conflate themselves with the First Amendment, i.e., an attack on CNN, they say, is an attack on freedom of the press. That is a lie, as CNN would quickly label a dubious assertion by the president. CNN is merely an organization that takes advantage of First Amendment rights to do its job. CNN is not the embodiment of the First Amendment. Neither is The New York Times or the Washington Post.

What really bothers Big Media is that they are not as relevant, respected or necessary as they once were. But they want to be treated as if they are, as if its still 1950 or 1960 or even 1990. They want to be the exclusive filter through which news and information flows, but they are no longer that, and it is that fact that leads to their frequent hissy fits.

In this internet age, there are tens of thousands of alternative sources for news and information when it comes to national events, at least several hundred of which are regularly consulted by the masses on a daily basis. Most of these newer, alternative news sources are firmly planted in one ideological corner or the other, and their credibility is often suspect but unfortunately the same can be said for CNN, MSNBC, FOX, ABC, CBS, NBC, The New York Times, the Washington Post and countless additional metropolitan newspapers.

The cratering of respect and credibility for the once powerful Big Media outlets is not the fault of President Trump. It is the fault of the media outlets themselves. Their low standing is the result of their own irresponsible choices, culminating in their outrageously biased coverage of the 2016 presidential election.

Trump is off the mark when he criticizes certain outlets for delivering fake news. The news itself the content is real enough. Its the delivery that is flawed. The problem is not fake news. The problem is horrible journalism.

Understanding good journalism does not require an advanced degree. Good journalism is accurate. It is fair. It does not have an agenda. It is not out to get someone. It presents facts as completely as human beings are capable of gathering them. It does not seek out only the negative or the positive about the subjects that are covered. It follows the facts where they may lead, without a preconceived end result. Virtually none of the Big Media outlets follow these simple precepts anymore.

The First Amendment states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What a thing of beauty. So much is covered in so few words. But for todays purpose, our focus is on free speech and the press. Congress shall make no law abridging the freedom of speech, or of the press

The First Amendment does not say, The president shall not criticize the media or call it fake news. It does not say, Certain media outlets above others will have rights of access and the front row at press briefings. It does not say, The president shall always call on CNN for a question during press conferences. None of those examples, when they happen or do not happen, threaten, harm or violate the First Amendment.

When he or his staff holds a briefing or event, the president of the United States can handpick any group of media outlets he desires and exclude any he wants to keep out. Doing so violates no ones First Amendment rights. The only way CNNs First Amendment rights could be violated is if Congress passed a law taking CNN off the air.

Everyone associated with the news media, big or small, has gone through battles with various public officials, whether local, state or national, over access and inclusion. There are always cases where some officials or organizations or groups invite some media outlets to an event and not others, or send press releases to one while not sending to the others, or provide information later to others while getting it into a preferred outlets hands first. These are age-old games that are as ancient as the written word.

When it happens, it is not a violation of anyones First Amendment rights. In some cases, open record or freedom of information laws might be violated, but First Amendment rights are not. Nothing is preventing a media outlet from exercising its First Amendment rights, both by complaining loudly about the treatment and by pursuing the information through a less convenient avenue than having it handed over on a silver platter.

But meanwhile, the First Amendment itself is being exercised in this internet age so freely, so aggressively, so without boundaries that it could be mistaken for being on steroids. Anyone with internet access and a blog, anyone with email, anyone with a Facebook or Twitter account both media members and non-journalists has a worldwide platform to exercise their freedom of speech, even the worst kinds of free speech (anonymous and therefore irresponsible). Far from inhibiting the exercise of free speech and a free press, President Trump, intentionally or not, is demonstrating that the jealous entitlement CNN and other Big Media outlets have had on the First Amendment is a thing of the past.

The only way the traditional Big Media outlets can recapture their special claim on the First Amendment and the respect they once enjoyed is by doing what they are most unlikely to do return to a form of journalism that is fair and unbiased, tough but respectful. Short of that, their standing and influence will continue to diminish. The fault will be theirs, not the presidents.

Reach Gary Abernathy at 937-393-3456 or by email at [emailprotected]

http://timesgazette.com/wp-content/uploads/2017/02/web1_Gary-Abernathy-CMYK-10.jpg

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See the rest here:
1st Amendment stronger than ever - Hillsboro Times Gazette

First Amendment

Posted Feb 27, 2017 08:31 am CST

By Debra Cassens Weiss

Lawyers and First Amendment advocates joined a New York congresswoman on Saturday in blasting President Donald Trumps exclusions of some news organizations from a White House press briefing the previous day.

Democratic U.S. Rep. Carolyn Maloney held a news conference with the experts outside the headquarters of the New York Times, one of the news organizations banned from the press briefing, report Newsday, the New York Daily News, the Observer and the Associated Press.

Civil liberties lawyer Norman Siegel, the former leader of the New York Civil Liberties Union, called for a lawsuit by the news media that challenges the exclusion as prohibited viewpoint discrimination under the First Amendment.

You give censors an inch, Siegel said, and then they take a yard, and then they take a mile, and then you wake up one morning, and you dont have your rights anymore,

Press secretary Sean Spicer said during the briefing that were going to aggressively push back. Were just not going to sit back and let, you know, false narratives, false stories, inaccurate facts get out there.

A press release announcing the briefing cites a 1977 federal appeals court decision, Sherrill v. Knight, in which the Nation sued for denial of a press pass. The U.S. Court of Appeals for the D.C. Circuit said in that case that arbitrary or content-based criteria for issuing press passes is barred under the First Amendment.

Besides the New York Times, news organizations banned from the Friday press briefing were CNN, the Los Angeles Times, the New York Daily News, Politico, BuzzFeed, BBC, the Huffington Post and the Guardian. Time and the Associated Press boycotted the briefing to show support for the banned media.

White House press secretary Sarah Huckabee Sanders told the New York Times that all the news media was represented because pool reporters were invited. We decided to add a couple of additional people beyond the pool. Nothing more than that, Sanders said.

Siegel said he was also troubled by the Obama administrations decision to exclude Fox News from press access for a brief period in 2009. According to the Washington Post, the incident involved an attempt to bar the news organization from interviews with pay czar Kenneth Feinberg. Other media outlets protested the exclusion.

Original post:
Did White House exclusion of press violate First Amendment? Norman Siegel says suit should be filed - ABA Journal