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Category Archives: First Amendment

WashU Expert: Trump attacks on Twitter betray free speech principles – Washington University in St. Louis Newsroom

Posted: May 29, 2020 at 1:02 am

When President Donald Trump made unsubstantiated claims on Twitter May 26 about mail-in voting, it fact-checked him inserting beneath his tweets a hyperlink to more information on the subject.

President Trump then accused Twitter of totally silenc[ing] conservatives [sic] voices and threatened that [w]e will strongly regulate, or close them down, before we can ever allow this to happen.

The president of the United States is threatening to censor social media platforms because he doesnt like what they say.

No more blatant and frightening violation of the First Amendment is possible, he said. The core of the First Amendments free speech guarantee bars government from restricting speech based on viewpoint. If the Trump administration makes any effort to regulate Twitter, even in ways that would not appear to violate the First Amendment, Twitters lawyers can and should point to the presidents threats as evidence of unconstitutional animus.

What about free speech by Trump and conservatives?

Twitter is a private company. Under basic First Amendment principles, Twitter can say what it wants and edit as it pleases, Magarian said. However, Twitter is also a distinctly powerful platform for speech. Some people argue that Twitter should have some obligation to protect and respect free speech principles, and those arguments have weight.

But Twitters decision to provide links to additional facts does not violate free speech principles, Magarian said.

Twitter has faced frequent, sharp public criticisms for taking no action when users post false, misleading and harmful statements. In this case, Twitter let Trump have his say. In fact, what Twitter did promotes free speech.

In fact, what Twitter did promotes free speech, he said. Twitter has faced frequent, sharp public criticisms for taking no action when users post false, misleading and harmful statements. In this case, Twitter let Trump have his say. Twitter then made an editorial judgment that publishing the presidents unsubstantiated claims about an important public issue justified giving Twitters users easy access to more information about that issue. Free speech principles are supposed to promote debate and make us more informed. Twitter did exactly that.

The presidents response to Twitters action broadly calls into question conservatives constant complaints that political correctness and (in Trumps words) the lamestream media silence right-wing speech, Magarian added. Conservatives have used communications technology very effectively to promote their viewpoints. What does it say when, facing the mildest and most constructive imaginable form of criticism, the conservative president threatens to censor his critics? Perhaps it says that conservatives like Trump dont really care about the free speech of anyone but themselves.

Social media platforms should promote free speech, Magarian said.

They should try to prevent misinformation, especially government propaganda, in ways that do not stifle the free exchange of ideas, he said. The government must not use its power to attack ideas it objects to. What Trump has said and done today betrays every one of those simple, crucial free speech principles.

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Reexamining the Computer Fraud and Abuse Act | Morgan Lewis – Tech & Sourcing – JD Supra

Posted: at 1:02 am

As the digital landscape in the United States evolves, federal courts are reexamining federal cybersecurity laws enacted during an era before individuals, companies, and the government had easy access to computers and the internet. In particular, the Computer Fraud and Abuse Act (CFAA), 18 USC 1030, a cybersecurity bill enacted in 1986 as an amendment to an existing computer fraud law, has come under significant scrutiny. In this blog post, we will review the CFAA and recent federal court activity regarding the law.

In 1986, concerned about growing criminality through the use of computers in the United States, Congress enacted the CFAA, making it a crime to intentionally access[] a computer without authorization or exceed[] authorized access, and thereby obtain[] . . . information from any protected computer (the Access Provision). In 1994, the CFAA was amended and private parties were permitted to bring causes of actions and obtain damages thereunder.

Over the years, Congress has continued to broaden the scope of the CFAA, most recently in 2008, in order to more accurately address more contemporary issues, including extortion and ransomware. Today, the CFAA protects computers, smart devices, and databases, among other things, from different types of computer fraud, including data breaches, hacking, and intentional interruptions of service.

The CFAA has been the subject of significant legal challenges over the years, and federal circuit courts have been divided on how to interpret certain areas of the law. For example, in the employment context, courts are split on whether an employees violation of company policy constitutes a CFAA violation; the US Supreme Court recently granted certiorari in Van Buren v. United States to potentially resolve this split.

The employment context is not the only area of the law that has been challenged. In Sandvig v. Barr academic researchers from Boston brought a pre-enforcement challenge in the US District Court for the District of Columbia, arguing that the CFAA would chill their First Amendment right to free speech on a research project they intended to perform. The researchers planned to test whether employment websites discriminate on the basis of race and gender, and intended to provide false information to target certain websites to test their hypothesis, which would be in violation of those websites online terms of service. Concerned about potential exposure to criminal claims under the CFAA, the researchers brought a challenge in federal court before beginning their research.

Without reaching the First Amendment issue or ruling on the employers computer-use policy that will be decided by the Supreme Court, the DC District Court adopted a narrow interpretation of the Access Provision, stating that the CFAA does not criminalize mere terms-of-service violations on consumer websites, and, thus, [the] plaintiffs proposed research plans are not criminal under the CFAA. In support of its decision, the court reasoned that (1) the consumer website terms of services do not provide adequate notice for purposes of criminal liability, (2) criminalizing violations of private websites terms of services raises considerable nondelegation issues, and (3) the rule of lenity and the constitutional avoidance canon weigh against a broad interpretation of the exceeds authorized access as encompassing terms-of-service violations.

As the digital landscape continues to develop, we expect to see more challenges under the CFAA appear on docket sheets across the federal court system. We will provide further updates on this developing area of the law in future posts.

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Going to the dogs: the Ninth Circuit’s erosion of trademark rights exclusive guest post – World Trademark Review

Posted: at 1:02 am

InVIP Products LLC v Jack Daniels Properties Inc, the US Court of Appeals for the Ninth Circuit has held that a dog toy meant to humorously evoke a bottle of whiskey was a protectable expressive work. In this guest post, Christian W Liedtke, partner at acuminis and co-author of an amicus brief submitted by INTA seeking en banc review of the decision, argues that the ruling, as it presently stands, is alarming and opens the floodgates to widespread theft of goodwill under the guise of the First Amendment.

VIP Products LLC v Jack Daniels Properties (18-16012 (9th Cir 31 March 2020)) is a case between VIP Products, one of the largest makers of dog toys and other pet accessories in the United States, and defendant Jack Daniels Properties, operator of the oldest whiskey distillery in the United States and owner of trademarks and trade dress appearing on Jack Daniels Tennessee whiskey. While the parties respective businesses could scarcely appear more different on the surface, they intersected thanks to a dog toy sold by VIP as the Bad Spaniels Silly Squeaker.

The Bad Spaniels Silly Squeaker toy is fashioned after a bottle of Jack Daniels Old No 7 Black Label Tennessee Whiskey; however, the toy includes a variety of dog-themed alterations. Specifically, the Bad Spaniels Silly Squeaker is meant to suggest that the whiskey has been replaced with dog feces. Along those lines, while the script on a Jack Daniels bottle would read Old No. 7, that language was replaced on the Bad Spaniels Silly Squeaker with Old No. 2 followed immediately by the words On Your Tennessee Carpet, instead of Tennessee Sour Mash Whiskey. Similarly, while the label on a Jack Daniels bottle would read 40% ALC. BY VOL. (80 PROOF), that language was replaced on VIPs Bad Spaniels Silly Squeaker with a label that reads 43% POO BY VOLUME and 100% SMELLY.

It should be noted that, on the back of the packaging for the Bad Spaniels Silly Squeaker toy, it states: This product is not affiliated with Jack Daniels. An image of the bottle toy adjacent to a Jack Daniels bottle is reprinted below.

Around September 2014, Jack Daniels sent VIP a cease and desist letter, demanding, inter alia, that VIP stop selling the Bad Spaniels Silly Squeaker toy. Shortly after receiving the Jack Daniels demand, VIP instituted a declaratory judgment action against Jack Daniels, seeking a declaration that:

In addition, VIP sought cancellation of the Jack Daniels USPTO registration for the configuration and shape of its whiskey bottle.

Responding to VIPs declaratory judgment suit, Jack Daniels counterclaimed with various state and federal claims for, inter alia, trademark and trade dress infringement, trademark dilution (by tarnishment, but not by blurring) and false designation.

The parties cross moved for summary judgment. In its motion, VIP argued that the infringement and dilution claims should be dismissed in light of its defences of nominative and First Amendment fair use. VIP further argued that, even without those defences, Jack Daniels could not prove its dilution claims or that the JACK DANIELS trademarks and trade dress were functional and/or non-distinctive.

In response to VIPs motion, Jack Daniels argued that the fair-use defences were inapplicable. Jack Daniels further argued that its trade dress was non-functional and distinctive as a matter of law, and urged the District Court to leave for trial its dilution claims.

The District Court rejected VIPs attempt to rely on a First Amendment fair-use defence by concluding that the Bad Spaniels Silly Squeaker toy was not an expressive work. Notably, the Ninth Circuit has utilised the phrase expressive works instead of artistic works since Brown v Electronic Arts, Inc (724 F.3d 1235, 1241 (9th Cir 2013)). In rejecting VIPs defence, the District Court applied the Rogers test, first articulated by the Second Circuit in Rogers v Grimaldi (875 F.2d 994 (2d Cir 1989). As interpreted by the District Court, the Rogers test applies to artistic or expressive works such as movies, plays, books and songs, and requires courts to construe trademark law only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. The District Court determined that the First Amendment affords no protection to VIP because it is trademark law that regulates misleading commercial speech where anothers trademark is used for source identification in a way likely to cause consumer confusion.

In its analysis, the District Court compared the case to a 2002 case from the Southern District of New York, Tommy Hilfiger Licensing v Nature Labs (221 F Supp 2d 410 (SDNY 2002)). In Tommy Hilfiger, First Amendment protections were determined not to apply to Timmy Holedigger, a dog perfume designed to be a parody of the TOMMY HILFIGER trademark, because Tommy Holedigger was meant, at least in part, to promote a somewhat non-expressive, commercial product.

The case between VIP and Jack Daniels continued to trial. At the end of a four-day bench trial, the District Court ruled for Jack Daniels and issued a permanent injunction enjoining VIP from manufacturing and selling the Bad Spaniels Silly Squeaker toy.

VIP appealed and had some success in the Ninth Circuit. In light of its determination that the Bad Spaniels Silly Squeaker toy was an expressive work, the Ninth Circuit also reversed the District Courts decision on dilution by tarnishment. According to the Ninth Circuit, the Bad Spaniels Silly Squeaker toy used the Jack Daniels design and mark to convey a humorous message, and that message was protected by the First Amendment. The Ninth Circuit accordingly held that VIP was entitled to summary judgment on the federal and state trademark dilution claims.

On 22 April 2020, INTA filed an amicus curiae brief in support of the Jack Daniels request for en banc review of this case centered around two arguments. First, INTA highlights that the Ninth Circuits application of the Rogers doctrine to commercial goods is unprecedented. Second, it argues that the Ninth Circuit failed to apply the precedent set by the Supreme Court in Bolger v Youngs Drugs Prods Corp (463 US at 66-67) when making its determination that the Bad Spaniels toy constituted non-commercial use.

This week, on 26 May, a group of law professors filed an amicus curiae brief in support of VIP also advancing two arguments. First, the law professors argue that the Ninth Circuit properly applied the Rogers test and that the Bad Spaniels dog toy was correctly considered non-commercial and thus exempt from trademark infringement liability. Second, perhaps more dramatically, the law professors argue that the concept of dilution by tarnishment is unconstitutional.

The Ninth Circuits decision, as it presently stands, is alarming and goes beyond allowing dogs to do their business all over brand equity; it opens the floodgates to widespread theft of goodwill under the guise of the First Amendment.

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First Amendment Lawyer Dismisses Trumps Claim That Twitter Is Stifling Free Speech: He Doesnt Want Critics to Have a Chance to Respond – Mediaite

Posted: at 1:02 am

Well-known First Amendment lawyer Floyd Abrams dismissed President Donald Trumps angry assertion that Twitter was completely stifling free speech by adding a misinformation warning label to two of his inaccurate tweets about mail-in voting.

Speaking with SiriusXM host and ABC News chief legal analyst Dan Abrams, the attorney who famously argued the Pentagon Papers case said Trump had no real argument that his First Amendment rights were somehow being violated by the social media platform. As Abrams noted, Trump ability to post whatever he wants has not been affected in any way.

What hes really saying is not that theyre limiting his speech, he can say anything he wants and not even that theyre taking him off [the site], the free speech advocate explained. So, what hes saying, and hes really very clear about it, is not that it violates him by keeping him from speaking. Hes saying he wants to speak in a way where the other side, or critics of his, or people who are saying what hes saying is just false, will not have a chance to respond.

The elder Abrams Floyd is Dans father did question Twitters logic, however, in its selective application of actively fact-checking Trump. Specifically, Abrams called out Twitter for targeting two of Trumps tweets that included false claims but also absurd yet nonetheless factually irrefutable predictions about mail-in voting. Notably, Abrams pointed to Trumps recent Twitter campaign spreading a vicious conspiracy theory about MSNBC host and political foil, Joe Scarborough.

It is sort of an odd choice, Abrams agreed when asked about the social media platforms decision. Some of what the president was saying was sort of a prediction as to the future. And predictions arent facts anyway, right?

That to me is very different where you have a situation where, by a series of accusations, carefully phrased, maybe for legal reasons, buy carefully phrased to be statements of suspicion and calling for investigation, but in a context where there is, literally,literallyno basis at all for an investigation and is obviously an effort to pay back Joe Scarborough and which does real harm to the [Lori Klausutis] family.

That comes a lot closer to Twitters own guidelines about avoiding harassment, Abrams pointed out. That does sound very far down the road, to me at least, of harassing Joe Scarborough at the same time it is inflicting predictable and terrible pain on the family of this dead woman.

Listen to the audio above, via SiriusXM Channel POTUS 124.

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First Amendment Lawyer Dismisses Trumps Claim That Twitter Is Stifling Free Speech: He Doesnt Want Critics to Have a Chance to Respond - Mediaite

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Liberals Have Rediscovered the 10th Amendment’s Value During the Coronavirus Pandemic – Reason

Posted: at 1:02 am

Amid the grim coronavirus news of death and unemployment, at least there is the comic relief of the left embracing the Tenth Amendment.

Suddenly trendy is the provision of the Bill of Rights that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The rush to the Tenth came in response to President Trump'sstatementon May 22. "I call upon governors to allow our churches and places of worship to open right now," Trump said."The governors need to do the right thing and allow these very important, essential places of faith to open right now, for this weekend.If they don't do it, I will override the governors."

The editor of Mother Jones, a left leaning magazine, Clara Jeffrey, wasn't having it. "To be clear, Trump can't do [expletive] to force churches/temples/mosques to open. Little thing called the 10th Amendment," shetweeted.

The White House correspondent of the PBS Newshour, Yamiche Alcindor, made the same point. "Pres Trump says he will 'override the governors' if they don't follow new CDC guidance and open places of worship this weekend. Context: The 10th Amendment of the Constitution says powers not delegated to federal government are reserved to the states," Alcindortweeted.

A Democratic congressman from California, Jared Huffman, and a Democratic congressman from Maryland, Jamie Raskin, issued ajoint statementaccusing Trump of "breathtaking arrogance," and of threatening "to trample the sovereign powers of the states under American federalismand the rights of the people under the First Amendment and the Tenth Amendment."

Rachel Laser of Americans United for Separation of Church and State insisted that Trump lacks the power to override the governors. "The Tenth Amendment to the Constitution forbids the federal government from strongarming the states," Laser said, asquoted by Politico's Josh Gerstein.

What's amusing about this? Well, it's the humor of contrasting it with the attitude toward federal supremacy and states' rights that had obtained some years back, when the Democrats controlled the White House, and when "states rights" was the cry of segregationists, not social-distancers.

A front-page newsarticle in The New York Times back in 2010, when President Obama, a Democrat, was in the White House, cast doubt on states' rights efforts.

"Article 6 of the Constitution says federal authority outranks state authority, and on that bedrock of federalist principle rests centuries of back and forth that states have mostly lost, notably the desegregation of schools in the 1950s and '60s," the Times reported then. The Times quoted a law professor,Ruthann Robson, who claimed, "Article 6 says that that federal law is supreme and that if there's a conflict, federal law prevails."

A different New York Timesarticlefrom 2010 described the Tenth Amendment as "The Tea Party's favorite part of the Constitution," a reference to the grassroots "Taxed Enough Already" movement that was then organizing protests against Obama's policies.

Anda third Times article from 2010, reporting on Elena Kagan's confirmation hearing, observed, "Tea Party supporters believe that much of what the federal government regulates should be left to the states, where voters hold a shorter leash. For this reason, they embrace a strict interpretation of the 10th Amendment, which says that the powers not delegated to the federal government by the Constitution 'are reserved to the states respectively, or to the people.'"

Back in 1996, when a different Democrat, Bill Clinton, controlled the White House, a Timeseditorialcomplained, "A headstrong five-justice majority is driving the Supreme Court toward a revolutionary, indeed reactionary, interpretation of federalism, tilting the balance dangerously toward states' rights at the expense of Federal power."

It's hard to avoid the conclusion that support for states' rights or federal power is dependent on whether your guy is the one in the White House giving the orders or the one in the governor's mansion being ordered around. It's less principled or consistent that it is partisan and situational.

The right can vacillate on these matters, too. That's particularly true in religious freedom cases. A strong historical legal case can be made that the First Amendment prohibition on establishing a religion was intended as a restriction on the federal government, not the states. So some conservatives have resisted using federal power to strike down, say, state school prayers or depictions of the Ten Commandments in state courthouses. But many of these same folks are glad Trump is encouraging governors to allow in-person worship, an expression of the free-exercise protection in the same First Amendment.

If the left presses the "state sovereignty" argument against Trump too far, it may find that clashes will be refereed in federal courts, and that Trump is commander-in-chief of a military with firepower that dwarfs any state police or National Guard unit. But Trump, too, may wish to recall a lesson of the Tea Party, which is that if voters are angry enough at Washington that they've discovered the often-obscure Tenth Amendment, there may be some price to be paid by incumbents in the upcoming election.

For skeptics of Washington-imposed central authority or big government, the left's embrace of the Tenth Amendment may be a positive effect of the pandemic. What are the chances that it would last into a Biden administration?

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Former DNC chair Donna Brazile claims ‘theres no First Amendment right to lie. Her co-hosts on The Five erupt in mockery. – TheBlaze

Posted: at 1:02 am

Panelists on Fox News' "The Five" burst into mockery Wednesday night after former Democratic National Committee Chairwoman Donna Brazile boldly claimed that "there's no First Amendment right to lie."

Brazile, a Fox News contributor, appeared on the show to discuss the developing feud between President Donald Trump and Twitter. The tech giant added a fact-check label to several of the president's tweets Tuesday as part of an ongoing initiative by the platform.

After co-host Jesse Watters went on a lengthy tirade against the initiative even suggesting that Twitter officials could end up "helping the president" by proving that "the whole thing is so cooked up," Brazile mocked him for "whining."

Later during her response, Brazile took the argument a step further, suggesting that she would've "deleted" the president's tweets, specifically referring to his tweets regarding MSNBC host Joe Scarborough and mail-in ballots.

"There's no First Amendment right to lie. Period," she said emphatically.

Caught off guard by the claim, the panel went silent for a few seconds before erupting in mockery.

Watch the exchange towards the end of the video below:

'The Five' slams Twitter for using sources like CNN to fact-check Trump

"You can't lie?!" a shocked Greg Gutfeld asked as Dana Perino retorted "well, actually, you can."

Brazile dug her heels in and shouted back: 'There is no First Amendment right to lie. There's no First Amendment right to lie. You just go ahead and lie."

"I can say I'm 6 feet tall. Are you going to have me arrested?" Gutfeld responded. "What would happen to politicians, Donna? If you couldn't lie, you'd have no politics," he added.

As for the Trump-Twitter feud, the president reportedly plans to sign an executive order aimed at social media companies in the coming days.

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Supreme Court: Clarence Thomas calls for shrinking the First Amendment –

Posted: May 14, 2020 at 5:12 pm

Last Thursday, Justice Clarence Thomas suggested that a major First Amendment doctrine should be abandoned, and that the right to free speech be significantly shrunk in the process. Its the second time hes done so in a little over a year, and at least the third time Thomas has called for a major slice of Americans free speech rights to be cut away.

His latest call to reduce free speech rights came in United States v. Sineneng-Smith, a case involving an immigration lawyer who fraudulently charged her clients a total of $3.3 million to file for a change in their immigration status that she knew they were ineligible to receive. The Court ruled unanimously, and on narrow procedural grounds, to toss out a ruling benefiting this immigration lawyer.

Though Thomas joined Justice Ruth Bader Ginsburgs unanimous opinion, he also wrote a separate opinion joined by no other justice. In it, he calls for the Court to reconsider its overbreadth doctrine, a First Amendment doctrine that allows courts to cast an especially skeptical eye on laws that restrict free speech. In doing so, Thomas admitted that he is now calling for the Court to reconsider a doctrine that hes supported in the past.

As a general rule, courts are reluctant to accept facial challenges to an allegedly unconstitutional law challenges that seek to invalidate the law in all of its applications rather than simply holding that the court will not apply that particular law to a particular plaintiff. The overbreadth doctrine makes it easier to bring a facial challenge under the First Amendment, and thus provides heightened protection against laws that burden free speech. Thomass opinion would permit many laws that burden free speech to remain on the books, even after a court determines that they would chill a significant amount of free expression.

Its not the first time Thomas has articulated a narrow vision of the First Amendment. In 2019, he attacked his Courts decision in New York Times v. Sullivan (1964), one of the Supreme Courts foundational First Amendment decisions, which protects journalists against malicious libel suits that could stifle a free press.

Likewise, in Brown v. Entertainment Merchants Association (2011), Thomas suggested that children and teenagers have no First Amendment rights whatsoever. The practices and beliefs of the founding generation establish that the freedom of speech, he wrote in his Brown dissent, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors parents or guardians. No other justice joined Thomass opinion in Brown.

These are serious attacks on the right to free speech. Thomass Brown opinion alone, if it were embraced by a majority of his Court, would strip free speech rights from nearly 74 million individuals.

So its striking that there is one other case where Thomas took a very expansive view of the First Amendment. In Citizens United v. Federal Election Commission (2010), the Supreme Court held that the right to free speech includes the right of corporations to spend unlimited money on influencing elections. In a partial dissenting opinion, Thomas complained that Citizens United does not go far enough.

Justice Thomas, in other words, envisions a much weaker First Amendment for children, journalists, and, indeed, for much of the country. But when wealthy donors seek relief from campaign finance restrictions, Thomas takes a maximalist view of their First Amendment rights.

Thomass opinion in Sineneng-Smith involves a fairly technical doctrine, but its worth taking a moment to understand that doctrine, and Thomass critique of it, because that critique is at odds with the view Thomas takes in Citizens United.

As a general rule, federal courts hear two types of constitutional challenges claiming that a federal or state law violates the Constitution. Facial challenges seek to invalidate a specific legal provision in its entirety. If a plaintiff prevails in such a challenge, then the legal provision they challenged ceases to operate altogether.

By contrast, when a court declares that a law is invalid as applied to a particular plaintiff, that means the law cannot be applied in the specific circumstances that arose in that particular case. But there may still be other circumstances where the law can constitutionally be applied to other individuals.

Ordinarily, courts are reluctant to declare a law invalid on its face. As the Supreme Court explained in United States v. Salerno (1987), a facial challenge to a legislative Act is ... the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.

Think of it this way. Suppose a state passes a law providing that bail for all persons charged with theft shall be at least $100,000. Now suppose that two different criminal defendants challenge this law under the Eighth Amendment, which prohibits excessive bail.

The first defendant is a teenager charged with shoplifting a pack of gum from a convenience store. The second is a notorious art thief, with multiple aliases and connections across the globe, who is charged with stealing tens of millions of dollars worth of famous paintings. In these circumstances, a $100,000 bail would clearly be excessive for the first defendant. But, if anything, its probably too low for the second defendant.

Because there are at least some sets of circumstances where a $100,000 bail would be appropriate for a criminal defendant charged with theft, no one could bring a facial challenge to the state law setting this minimum bail amount. But the shoplifiting defendant could bring an as-applied challenge claiming that, as applied to their rather insignificant offense, a bail of $100,000 is excessive.

And that brings us to the overbreadth doctrine. That doctrine provides that Salernos high bar for facial challenges does not apply to First Amendment lawsuits. Rather, as the Supreme Court explained in United States v. Stevens (2010), a law that burdens free speech may sometimes be facially invalidated if a substantial number of its applications are unconstitutional.

The reason for this overbreadth doctrine is that the Court believes free speech rights to be particularly fragile. If courts allow statutes that ban some forms of speech to stand, the mere existence of those laws could frighten individuals away from exercising their First Amendment rights. As the Court explained in Broadrick v. Oklahoma (1973), the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.

Nevertheless, Thomas raises a number of objections to this overbreadth doctrine in his Sineneng-Smith opinion. He claims it is untethered from the text and history of the First Amendment, and that, rather than being rooted in the way the First Amendment was originally understood, the overbreath doctrine first emerged in the mid-20th century.

One of Thomass primary objections to the doctrine is that he believes the Salerno standard should apply universally indeed, Thomas criticizes the very idea that anyone could bring a facial challenge against any law. Our modern practice of strik[ing] down legislation as facially unconstitutional bears little resemblance to the practices of 18th and 19th century courts, according to Thomas.

Fair enough. Read in isolation, the new viewpoint that Thomas announced in Sineneng-Smith could be seen as a call for judicial restraint an assertion that courts should be more cautious before they toss out an act of a legislature altogether.

But in Citizens United, Thomas sang a very different tune.

The thrust of Thomass opinion in Citizens United, the landmark Supreme Court decision that gutted much of Americas campaign finance laws, is that as-applied challenges are insufficient to protect donors whose political spending is disclosed to the public, and that the Supreme Court should have declared a federal campaign finance disclosure law facially invalid.

The bulk of Thomass partial dissent in Citizens United tells horror stories about conservative donors whose donations became public, and who then suffered social or financial consequences. Thomas alleges that a handful of donors to a campaign opposing marriage equality received threats, and he claims that the director of a musical theater company who donated to this campaign was forced to resign after artists complained to his employer. Thomas also claims that a restaurant manager who donated to this anti-LGBTQ campaign was forced to resign after protesters targeted the restaurant.

A majority of the Court concluded that these incidents were insufficient reason to strike down disclosure laws on their face although the Citizens United majority added that as-applied challenges would be available if a group could show a reasonable probability that disclosure of its contributors names will subject them to threats, harassment, or reprisals from either Government officials or private parties.

Thomas, however, rejected this conclusion. The Courts promise that as-applied challenges will adequately protect speech is a hollow assurance, he wrote, adding that the advent of the Internet enables prompt disclosure of expenditures, which provide[s] political opponents with the information needed to intimidate and retaliate against their foes.

In Thomass view, disclosure laws must be struck down on their face, in order to prevent campaign donors from facing harassment.

Whatever the merits of this position which was rejected by all eight of Thomass colleagues in Citizens United it is difficult to reconcile the position Thomas took on disclosure laws in Citizens United with the broad concerns with our modern practice of strik[ing] down legislation as facially unconstitutional that he announced in Sineneng-Smith.

In fairness, Thomas does concede in his Sineneng-Smith opinion that he has previously joined the Court in applying the overbreadth doctrine. So his current opposition to First Amendment facial challenges appears to be a recent development. Perhaps, when Thomas hears another campaign finance case, he will rebuke his own analysis in Citizens United and admit that it is inconsistent with the views he expressed in Sineneng-Smith.

But, at the very least, it is enough to point out that Thomas took a maximalist approach to the First Amendment in Citizens United, and then took such a radically different approach in a more recent opinion.

A common thread running through Thomass First Amendment decisions indeed, a thread that runs through Thomass decisions on many topics is his belief that the Court has departed from the way the Constitution was understood by the generation that framed it. His primary complaint in Sineneng-Smith is that the overbreadth doctrine is untethered from the text and history of the First Amendment. Similarly, in McKee v. Cosby (2019), Thomas argues that a venerable Supreme Court decision protecting journalists from malicious libel suits was wrong because it did not apply the First Amendment as it was understood by the people who ratified it.

One overarching problem with Thomass project of trying to interpret that First Amendment as it was originally understood by the framing generation is that it is far from clear that such a thing is possible. And, if it is possible, there is considerable evidence that the framers understanding of the amendment was so narrow that modern-day Americans would find it unacceptable.

Under the English common law, which informed much of the founding generations understanding of early American law, the freedom of speech and of the press was largely understood as a right not to have the government stop an individual from publishing a particular statement. But once that statement became public, the individual who made it could still face legal consequences for their speech.

Early Supreme Court decisions interpreting the First Amendment accepted this limited view of free speech. As the Supreme Court concluded in Patterson v. Colorado (1907), the main purpose of the First Amendments guarantee of free speech and a free press is to prevent all such previous restraints upon publications as had been practiced by other governments, and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.

Of course, modern Supreme Court decisions reject this narrow view of the First Amendment, but they did not do so because modern-day justices developed a better understanding of how the framers understood the freedom of speech. Many First Amendment scholars have concluded that the task of figuring out that amendments original meaning is impossible. As Judge Robert Bork, the failed Supreme Court nominee and godfather of the conservative originalist movement, wrote in 1971, the framers seem to have had no coherent theory of free speech and appear not to have been overly concerned with the subject.

Yet while there is little clarity regarding the original understanding of the First Amendment, the framing generation does appear to have had very robust ideas about the legal rights of corporations. And these ideas are hard to square with the expansive vision of corporate rights that the Supreme Court, with Thomass enthusiastic support, embraced in Citizens United.

In a 2016 law review article, former Delaware Chief Justice Leo Strine and his former law clerk Nicholas Walter explain that there were no business corporations operating under so called general corporation statutes in the early United States. Rather, corporations were created by the government, and given detailed charters that their managers were obligated to follow with fidelity.

As the Supreme Court held in Dartmouth College v. Woodward (1819), a corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence.

For this reason, Strine and Walter conclude, Citizens United is out of step with the original understanding of the First Amendment, not because it reads the amendment itself too expansively, but because the framers would not have understood the modern Supreme Courts conclusion that a corporation possesses constitutional rights.

Thomas claims to root his opinions in the original understanding of the First Amendment, but its far from clear that the framing generation had a coherent understanding of that amendment. And in the one area where Thomas takes an unusually expansive approach to the First Amendment campaign finance there is considerable evidence that early Americans rejected Thomass understanding of corporate rights.

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What words make up a true threat? Well, that depends – The Mercury

Posted: at 5:12 pm

As the COVID-19 crisis stretches on, were seeing more conflict, more protests and particularly more online rancor in the debate over how and if public officials should open up society or government restraints on gatherings, from bowling leagues and bars to religious services and retail stores.

The First Amendments protection for free speech covers most of what we may say, whether its impolite, insulting, biased or uplifting, even commentary or forcefully expressed opinions that most of us would find repulsive or repugnant.

But one area not protected as free speech is called a true threat, words that cause a person to fear for their safety or life. In a crisis, we may find things we say are taken in a different context by police, prosecutors and juries than at other, less stressful times.

Unfortunately for those trying to measure their own remarks, setting out a precise definition for what constitutes a true threat has flummoxed even the U.S. Supreme Court. The result is a division of opinion in federal and state courts across the country.

Toss in the new machinations of social media, which remove the element of face-to-face confrontation, but also provide a degree of anonymity and lack of restraints and the lines dividing protected and unprotected speech blur even more.

Speech threatening bodily harm made to a specific person standing in front of you while you have a weapon for example, holding a knife and saying I have a knife and Im going to cut your throat leaves little doubt that its a true threat.

But what if the person at whom those same words are directed isnt nearby when the remark is made, but sees it hours or days later on social media? What if the speaker sets the words to music, posts the statement as part of a YouTube video and later claims it was just a form of anger control therapy even if the intended target (think you or me) took the threat seriously?

For many years, evidence that a statement could be judged as putting any reasonable person in fear was enough to support a conviction in many courts. But in 2015, the U.S. Supreme Court, in Elonis v. United States, focused on the intent of the person making the statement, effectively saying that consideration was important and perhaps essential when deciding if the speaker was indeed issuing a true threat.

But the high court didnt set out any means of measuring intent, leaving things hanging. Two years later, Justice Sonia Sotomayor wrote, in Perez v. Florida, where the court refused to reconsider the conviction of a man who threatened to blow up a liquor store, that while states must prove more than mere utterance of threatening words, some level of intent is required (and) the Court should also decide precisely what level of intent suffices under the First Amendment, noting that did not happen in Elonis.

All of that leaves many of us subject to state laws that dont include a requirement to consider what we might mean when we say it, just how a reasonable person would feel about our words. Got enough money or time to get to the Supreme Court? Such a conviction would seem likely to be thrown out.

Not the bright line between right and wrong that we should expect to see when it comes to criminal prosecutions.

Case in point: According to Kentuckys Lexington Herald Leader, Louisville lawyer James Gregory Troutman, 53, was charged April 22 with terroristic threatening for two Facebook posts directed at Gov. Andy Beshear.

Maybe some should ask Beshear in a press conference about his thoughts on William Goebel, Troutman was reported by police to have said in a post, For those of you who dont know the history its a good read. Goebel, shot to death in 1900, in is the only serving U.S. governor ever assassinated.

Police said Troutman also later posted, in a Facebook exchange about Beshear ordering photos to be taken of license plates of churchgoers flouting social distancing orders, With any luck the gov will be the one at whom the shooting will be directed.

Police said Troutman was threatening to commit a crime likely to result in death or serious physical injury to the Kentucky governor. But Troutmans lawyer said the man didnt say he was going to kill him.

If you were sitting on a jury considering the charges against Troutman, a 1969 Supreme Court decision in Watts v. United States might help you decide. In that Vietnam War-era case, a protester was charged with threatening President Lyndon Johnson for telling a rally that if they ever make me carry a rifle, the first man I want to get in my sights is LBJ.

The court later decided that Watts had engaged in a crude form of political hyperbole rather than utter a true threat. The justices identified what later came to be known as the Watts factors: The context in which the words were spoken, the reaction of those who heard the remarks and the certainty of the remarks.

They noted that Watts made his statements during a political rally, that those who overheard his remarks laughed and his statement was conditional rather than definitive.

Still today, some lower courts use the Watts factors to determine whether speech crosses the line into the realm of true threats, Freedom Forum First Amendment Fellow David Hudson notes.

Another kind of hyperbole: Wishing that a meteor will fall from the sky and injure or kill a certain person may well be what most of us would find hateful and morally wrong, but its safely protected under the First Amendment.

On the other hand, the Supreme Court found in 2003, in Virginia v. Black perhaps its most direct ruling about true threat that the state of Virginia could prosecute people for cross burning intended to intimidate or instill fear in others. Dissenting voices said cross burning is always unprotected speech since it can have no effect other than intimidating others, but the courts majority did not agree. Again, the intent of the speaker, as in Elonis, rather than the meaning to those receiving the message, was held most significant.

The justices did offer this definition: True threats are those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group.

Adding to the conflicted legal views over true threats was the 2019 refusal by the justices to consider an appeal by Jamal Knox, a Pittsburgh rap music artist convicted over lyrics in a song Fuck the Police, recorded in 2012 while facing weapon and drug charges. The song named arresting officers and included lyrics saying, Lets kill these cops cuz they dont do us no good / pullin out your Glock out cause I live in the hood and Ima jam this rusty knife all in his guts and chop his feet your shift over at 3 and Im gonna fuck up where you sleep.

Critics of Knoxs conviction note that other more widely recognized artists have used similar statements in their music without prosecution and that local courts generally dont understand the role of rap music in urban culture.

Officials cited Knoxs specific identification of the officers and in 2018 the Pennsylvania Supreme Court said his lyrics were threats, not political, social or academic commentary, nor are they facially satirical or ironic.

From armed protestors confronting state police officers in the Michigan capitol building to armed revelers at a Texas bar arrested in a SWAT raid, from angry crowds outside a number of gubernatorial residences to violent words on social media, the potential for threating actions and actual violence today is higher than ever.

So how to judge whether your words, expressive conduct (such as marching with signs or weapons) or violent social media posts are protected speech?

Colleagues at the Freedom Forums education unit provide a lesson plan for free to help you navigate those First Amendment true threat waters: In You Cant Say That?! you will learn about restrictions to freedom of speech in public life and the court cases that determined when and why those limits apply.

Bottom line: In the U.S., the First Amendment certainly protects your right to speak. But theres no absolute protection from the effects of what you say particularly when those words may put a specific person in fear of injury or death.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at, or follow him on Twitter at @genefac.

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What words make up a true threat? Well, that depends - The Mercury

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Onslow Sheriffs department will not interfere with indoor church services – Jacksonville Daily News

Posted: at 5:11 pm

By Trevor Dunnell, For The Daily News


As law enforcement agencies around the state express their stance of not interfering with the church services, the Onslow County Sheriffs Office reminded their residents they will do the same.

Sheriff Hans Miller held a press conference on Tuesday explaining the departments stand on first amendment rights for residents in Onslow. It has not changed since the beginning of the stay-at-home order.

We have received calls from local church pastors about worship services and our answer was very clear from the beginning, we support the first amendment right to worship, said Miller. We support people's right to worship.

Miller added Gov. Roy Coopers guidance for church services during Phase One of reopening the state is that church services should take place outside unless it is impossible to do so.


Editors note: This coverage is being provided for free as part of our coronavirus coverage. Please consider supporting local journalism by purchasing a digital subscription to The Daily News. Our rates start as low as $1 a month.


On Monday, Cooper clarified the Phase One order does not prohibit multiple events from happening, in order to meet social distancing requirements of 10 or less people gathering inside.

According to Miller, deputies will not interfere with churches or limit how many people are allowed inside for worship.

What we suggest is as long as you maintain social distancing, it is perfectly fine to do so whether it is inside or outside, added Miller. If you are a family that lives together, then thats okay for you to to sit together.

Miller explained the main objective during reopening is to ensure everyone is being safe.

If you have people that want to congregate to worship or shop, as one human being to another I would say continue social distancing and advise people to wear any type of mask that can cover up how the virus can spread, added Miller.

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Religious freedom is under threat in the courtroom –

Posted: at 5:11 pm

May 14 (UPI) -- There is growing concern in our nation about the unconstitutional overreach of the judiciary in religious affairs. In courtrooms around the country, activist judges are rendering judgments that are collectively eroding the right to religious freedom protected by the First Amendment. The commissions formed to oversee the appointments of these judges are often failing to hold them accountable.

One such travesty is playing out in our nation's capital. Judge Laura Cordero of the Washington, D.C. Superior Court issued an unconstitutional summary judgment ruling in the case 2011 CA 003721 B, which effectively gave legitimacy to one religious faction over another in an ongoing schism within the Unification Movement founded by the Rev. Sun Myung Moon. Entering its ninth year, the case explicitly involves questions of religious polity, structure and theology.

Historically, courts have properly abstained from any involvement in the internal affairs of religious entities, as required by the First Amendment. Yet, despite the facts being disputed by both parties, Cordero issued a ruling that decided the issues in question without a jury trial. At a minimum, Cordero should have held a hearing to consider evidence and arguments of the parties involved and should have followed proper protocol for summary judgment, which requires the party seeking summary judgment to show there is no genuine dispute of any material fact.

Cordero also ignored the appellate court's caution that the case must be dismissed if "it becomes apparent to the trial court that this dispute does in fact turn on matters of doctrinal interpretation or church governance."

As such, Cordero set a dangerous legal precedent by unilaterally ruling on the doctrine, hierarchy and leadership of a religious entity. Not only has she trampled on the First Amendment by involving herself in a religious schism, but she also engaged in religious discrimination by favoring one side's unproven claims over the other's evidence-backed claims.

Compounding this injustice, the D.C. Commission on Judicial Disabilities and Tenure issued its report to President Donald Trump awarding Cordero a "well qualified" reappointment on April 27. This decision was rendered despite numerous factual misrepresentations and 5,000 emails to the commission objecting to her reappointment due to First Amendment violations and her religious bias in the above case. Though thousands of people of faith collectively decried her discrimination against their faith, their voices were callously dismissed by the commission. But the commission's report reveals a government agency contradicting itself and issuing falsehoods to the president.

One example of the report's many contradictions pertains to the 5,000 emails referenced above. The report says the emails the commission received "sharply criticized Judge Cordero's legal reasoning," but that legal reasoning "is not within the commission's purview to consider." Yet, in the very same paragraph, the commission states Cordero's ruling was "quite persuasive," as well as "well-reasoned, clear and concise and meticulous as to the facts and the law."

By what parameters, other than "legal reasoning," can the commission say her opinion was "quite persuasive" and "well-reasoned"? It is contradictory, dishonest and disrespectful for the commission to give this praise to Cordero, while, in the same paragraph, dismissing thousands of emails with the claim that "legal reasoning" is "not within the commission's purview to consider." And, it is simply irresponsible and inappropriate for the commission to praise the opinion issued by a judge against a party in a case that is ongoing.

The report contains many other falsehoods. According to the report, "Judge Cordero originally dismissed the case on lack of subject matter jurisdiction due to religious abstention." This is false. The case was dismissed by Judge Anita Josey-Herring in 2013, not by Cordero. The report claims that Cordero's decision "was affirmed on appeal." This is another outright falsehood. A cursory glance at the docket of the case reveals that Cordero's decision was never appealed. As such, there was no way for it to be "affirmed." Since no punitive action ever took place, there could have been no appeal.

All this information about judicial activity that is blatantly false or misattributed is being utilized to exaggerate the performance of a judge and to give her the highest possible rating.

The report on Cordero's reappointment by the commission reveals the worst elements of cronyism. Not only is the report riddled with contradictions and outright falsehoods, but it demonstrates a willingness to go to any length to rubber-stamp the reappointments of sitting judges, regardless of their performance. The examples here are a few of the misrepresented facts that aided in giving Cordero the highest possible rating; but one can only wonder what other facts were twisted to make her case.

A quick check on this commission's record concerning reappointments shows that 31 judges have come up for review in the last 13 years, and that every single judge was given the "well qualified" designation. According to the commission's own policy, the "well qualified" designation is reserved only for those judges "whose work product, legal scholarship, dedication, efficiency and demeanor are exceptional." If a judge ignores due process and violates the First Amendment and is yet considered "exceptional," what does that say about the integrity of our judicial system?

Judges should uphold the Constitution and follow proper judicial procedure. Oversight commissions should make every effort to conduct due diligence on judges' cases before reappointing them to the bench. We must hold judges and the judicial appointment process accountable so that this nation can continue to be an exemplar of religious freedom and the rule of law.

Howard C. Self is the president of Right To Believe, a not-for-profit organization fighting to protect the right to believe in one's religion without undue governmental interference. He has also held leadership roles at the Family Peace Association and in the Unification Movement, which are affiliated with the ultimate holding company that owns UPI.

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