Category Archives: First Amendment

First Amendment Petcha Kutcha - Sheyla Suarez
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By: Sheyla Suarez

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(Part Two) Gadsden County First amendment Audit
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By: HONORYOUROATH

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(Part Two) Gadsden County First amendment Audit - Video

It has been almost 150 years since the tragedies of the Civil War, since the enraged Confederacy was quelled by prolonged Union force and since over 200,000 individuals lost their lives over political and social disagreement.

Recently, however, a Purdue student has reawakened the entrenched social memory of Americas bleak history of racism and inequality by the displaying of a Confederate flag in the upper window of his residence.

For some, the Confederate flag is a sign of southern pride and for others its a retired relic merely a piece of irrelevant history. However, most see it as a sign of oppression, servitude, segregation and savage brutality.

Yet, according to Rick Walker, code enforcement supervisor of West Lafayette Police Departments neighborhood resource team, There was no violation of ordinance or law, and while a sensitive issue, the resident was within his right to display it.

I was able to speak with one of the residents at the house, and he understood the concerns of some in the neighborhood and was sensitive to that. As a result, the flag is no longer visible, said Walker.

Regardless of constitutional right, many still find it offensive as a sign of white supremacy and racial oppression.

For many, Confederate symbolism represents a way to venerate ancestors who fought in the Civil War or admiration for the skills and bravery of the Confederate officers and soldiers, said Robert E. May, professor of American history at Purdue. But I would claim knowledge of what the Confederate flag represented in its day; it was the rallying symbol of a nation dedicated to the preservation of slavery in North America.

The south was fighting for a nation designed to perpetuate slavery forever in the United States and possibly extend it southward into Latin America, said May. Displaying their flag is an insult not only to African Americans but also to all Americans who believe in human equality.

Lets not start unraveling our Union memorabilia just yet. Although Union President Abraham Lincoln is often lionized as the champion of modern day racial equality, that is unfortunately not the case.

For instance, the Emancipation Proclamation wasnt a gesture of Lincolns compassion for those enslaved. As much as Lincoln hated the institution of slavery, he didnt see the Civil War as a struggle to free the nations four million slaves from bondage. Emancipation, when it came, would have to be gradual, and the important thing to do was to prevent the Southern rebellion from severing the Union permanently in two.

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First Amendment protects student's choice to display Confederate flag

TIME Tech legal The Supreme Court Is About to Make a Big Decision About Facebook Free Speech Till JacketGetty Images/Photononstop RM The case could have big implications for how we use social media

The Supreme Court on Monday will consider whether violent language posted on social media is covered by the First Amendments protection of free speech.

The case, Elonis v. United States, hinges around the question of whether a Facebook message can be considered a true threat, or a threat a reasonable person would determine to be real. That would be an important distinction, because true threats dont get First Amendment coverage. But it wont be an easy problem to solve: While it can be easy to call a threat true if its given verbally, making that call gets harder when threats are posted online, where they lack the context, tone and other indicators of intent present in verbal communication. Its also arguably easier to make threats online, especially if its done anonymously.

What happened?

A lower court had sentenced Pennsylvania man Anthony Elonis to about four years in federal prison over several Facebook posts threatening his estranged wife. The posts included, among other things, raps about slitting his wifes throat and about how her protection order against him wouldnt be enough to stop a bullet.

A sample:

Theres one way to love you but a thousand ways to kill you. Im not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.

But how is that not a true threat?

Elonis contends his posts werent a threat to his wife but rather a therapeutic form of expression. Its commonly accepted that violent images are often part of rap music and other media, and artistic expression is protected under the First Amendment, explaining Elonis legal strategy. Still, the issue of whether Elonis had the intent to threaten is not necessary for a threat to be deemed a true threat. That requires only for a reasonable person to believe a threat is authentic.

The dividing line here is whether were judging the threat based on the intent of the speaker, or on the reaction of the people who read it and wouldve felt threatened. Thats really the key question, said William McGeveran, a law professor at the University of Minnesota.

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The Supreme Court Is About to Make a Big Decision About Facebook Free Speech

The Obama administration continues to strong-arm journalists into revealing sources

Bruce Brown is is executive director of the Reporters Committee for Freedom of the Press, and has argued numerous First Amendment cases before US courts.

By now, everyone knows the feds have been handing out record numbers of subpoenas to journalists hoping to scare them into giving up their sources. The troubles of New York Times reporter James Risen, the most well-known of these besieged journalists, remain unresolved almost seven years after the Bush administration first knocked on his door with a subpoena to appear before a grand jury.

There is another recent subpoena fight that has flown under the radar but ought to be brought into fuller view. It should be a wake-up call for anyone who cares about press freedom to heed a complaint that judges have been making since the Supreme Court looked at this issue 40 years agothat journalists cant prove that their sources dry up when the reporters they leak to are stalked by process servers.

The latest subpoena fight began in the summer of 2009 when Mike Levine, then a reporter for Fox News, wrote a story about the federal government probing links between Somali Muslims in Minneapolis and Al Qaeda. Citing law enforcement sources, Levine reported about grand jury indictments in the investigation while they were still sealed. The government successfully obtained pleas from several defendants and then went on to publicly tout the victory, but the leak set off alarms.

By early in 2011, the Justice Department had subpoenaed Levine, saying that it needed to know the identity of the law enforcement sources cited in his article. Levine moved to quash the subpoena, saying he promised his sources confidentiality. And the government sought to enforce it, saying that federal laws may have been broken.

All sound familiar? Levines case is but a piece in the onslaught of press subpoenas that have defined the Obama administration. But nothing was known publicly about this specific case until last May, when Levine, now at ABC News, wrote about it on the networks website. Then last month, US District Court Judge Royce Lamberth, who sits in DC, unsealed the docket.

Both from Levines account and court records, we learned that in July 2011, Lamberth denied the motion to quash. We also learned that the Justice Department in the end never forced Levine to testify. In April 2012, almost three years after Levines Somali story ran, prosecutors said they were withdrawing the subpoena. They offered no explanation as to why.

Levines case is more than just another example of the administration trying to force journalists to identify their sources. It stands out in part because of a statement by Lamberth in rejecting Levines arguments. The judge looked to a passage from the 1972 Supreme Court ruling in Branzburg v. Hayes, the one and so far only time that the press and the government have clashed over the issue at the nations highest court. In the passage, Justice Byron White wrote for a narrow majority in allowing prosecutors in a drug probe to obtain evidence from reporters trying to claim they were protected from testifying by the First Amendment. White said there simply wasnt enough empirical evidence to show that subpoenaing journalists would have a chilling effect on their sources.

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Press subpoenas are a bigger problem than youd think

Posted Mon, November 24th, 2014 3:31 pm by Amy Howe

Protesting at the funeral of a fallen soldier. Lying about your military record. Violent video games for children. Making videos about dogfighting. In the past few years, the Supreme Court has held that the First Amendment protects all of these forms of expression, even when very unpopular or offensive. Next week the Justices will hear oral arguments to determine whether Anthony Eloniss Facebook posts, which left his ex-wife extremely scared and an FBI agent worried about her familys safety, are entitled to the same kind of protection. Lets talk about Elonis v. United States in Plain English.

Eloniss legal troubles date back to 2010, when his wife left him, taking their two young children with her. He began to post lyrics from popular songs on Facebook, and he soon moved on to post his own, sometimes violent, rap lyrics. As part of his posts, Elonis included disclaimers about how his lyrics were merely fictitious, and that he was just exercising his constitutional right to freedom of speech. He also sometimes included links to the Wikipedia entry on the First Amendment and even the text of the First Amendment itself.

In the fall of 2010, Eloniss Facebook posts included several that discussed harming his ex-wife. One post was a take-off on a comedy routine available on YouTube: Elonis asked his Facebook friends whether they knew that it was illegal for him to say that he wanted to kill his ex-wife, and he added that it would be incredibly illegal to suggest that someone could kill his ex-wife by firing a mortar launcher from the cornfield behind her house. A day later, Elonis put up a post about shooting a kindergarten class.

These posts earned Elonis a visit from an FBI agent. After the visit, he posted about that encounter too, suggesting in rap lyrics that he had strapped a bomb to his body and would have detonated it if he had been arrested. This post was apparently the last straw for the FBI: a few weeks later, Elonis was arrested and charged with violating 18 U.S.C. 875(c), which makes it a crime to communicate threats in interstate commerce for example, over the Internet.

Elonis claimed that the charges against him should be dismissed because you can only violate the law if you intend tothreaten someone. And he didnt have any plans to threaten his ex-wife, the FBI agent, or anyone else: his rap lyrics and venting about his problems on Facebook just made him feel better. But if he can be convicted without any intent to threaten anyone, he added, that would violate the First Amendment. A federal trial court rejected both of his arguments. Instead, it instructed the jury, it could find Elonis guilty if the average person, looking at a statement objectively, would believe that it was intended to be a threat. The jury convicted Elonis, and he was sentenced to nearly four years in prison.

As Elonis emphasized in his Facebook posts, the First Amendment protects a right to free speech. But that right is not unlimited; the classic example is that you cant shout Fire! in a crowded movie theater when there is actually no fire, because the resulting chaos could lead to injuries or even death. The Supreme Court has held that the First Amendment also does not protect true threats, but it has not specifically said how courts should decide what is (or is not) a true threat. This case could give it that opportunity.

In his briefs at the Supreme Court, Elonis argues that a threat by its very nature requires an intent to cause fear. Because the whole point of a crime, he says, is that the defendant meant to do something wrong, the Court has interpreted criminal laws as requiring a wrongful intent even when they did not explicitly do so. Making it a crime to threaten someone even if you didnt intend tothreaten them, he contends, would cause people not to speak at all, because they would be worried about whether they could go to jail based on a jurys possible misinterpretation of their comments. This is particularly true, he concludes, when you are talking about alleged threats on social media and email, where nuance and tone matter so much and its so easy to misconstrue what someone says.

The federal government counters that, as the trial court in this case instructed the jury, courts should determine whether something is a true threat by looking at whether an average person would interpret the statement as reflecting a serious intent to harm someone. The government emphasizes that courts and juries can and should look at the context in which the alleged threat was made, and at the reactions of the people who heard the alleged threat, but they should not consider whether the defendant himself actually intended to threaten. This, the government explains, is because even if Elonis didnt intend tothreaten his ex-wife or the FBI agent, they were still afraid and their lives were still disrupted: the First Amendment doesnt protect him even if he knew that he didnt mean to threaten them.

We dont generally think of the Justices of the Supreme Court as especially savvy about technology. They did acquit themselves well last Term, in a case involving whether police need a warrant to search someones cellphone after they arrest him. But that may have been easier because they all have cellphones. It is far less likely that any of these nine intensely private public figures are on Facebook or any other form of social media, so it will be interesting to watch them grapple with these issues.

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Drawing a line between therapy and threats: In Plain English

Margaret Marshall: Citizens United and the Judicial Branch
Margaret Marshall, former chief justice of the Supreme Judicial Court of Massachusetts, discusses how recent interpretations of the First Amendment are impacting judicial ethics opening...

By: Harvard Kennedy School

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Margaret Marshall: Citizens United and the Judicial Branch - Video

Margaret Marshall: Surveillance and the First Amendment
Margaret Marshall, former chief justice of the Supreme Judicial Court of Massachusetts, discusses why increased surveillance in the wake of 9/11 is a serious threat to freedom of speech and...

By: Harvard Kennedy School

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Margaret Marshall: Surveillance and the First Amendment - Video

Attorney - What Does the First Amendment Protect in White Plains, NY?
This Informational Law Video has Been Brought to You by Kim Patricia Berg an Experienced White Plains, NY Attorney Specializing in Employment Law, Discrimina...

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Attorney - What Does the First Amendment Protect in White Plains, NY? - Video

Imprinted in the minds of Indians are Jawaharlal Nehru's words delivered at the stroke of midnight on that most important day: when the soul of a na tion, long suppressed, finds utterance. Everyone longed for their beloved India to sprout wings and fly . I find myself wondering today , what is the point of it all, if the wings are used to fly in the wrong direction? Towards a direction that is not in tune with our innate culture? We made one such unfortunate turn early in our independent history .

Freedom-loving liberals among us must remember and hang our heads in shame at the regrettable turn we took on May 10, 1951. That was the day Jawaharlal Nehru piloted the First Amendment to the Indian Constitution (which was passed into law within a few weeks). Among other restrictions on our fundamental rights, this also restricted freedom of expression.

Many feel that this was in response to the Supreme Court judgment in 1950 on the `Romesh Thappar vs The State of Madras' case, through which the ban on Thappar's magazine (a Marxist journal called Crossroads) was lifted. Many lawyers opine that in effect, the Supreme Court had recognized unfettered freedom of expression as compliant with our original Constitution; just like it was in the US and far better than in Europe at the time. Legal luminaries also hold that since unfettered freedom of expression would have been recognized as a fundamental right, the illiberal IPC Section 295(a), a gift bequeathed by the British Raj, through which many books have been banned, would be overridden.

Why did the Nehru government pass the first amendment? Critics of Nehru will hold this as proof that he was not a classical liberal (defined as one who defends political and economic freedoms for all). Supporters of Nehru will say that he had to ensure unity of purpose in the first few years of independent India to stabilize our country; and some freedoms were a small price to pay for this. I'll let historians pass judgment on this issue.

I merely offer my take on the events that transpired; an observation that is based on my strong belief in freedom of expression. And this is not just as a liberal, but also as an inheritor of a culture that has a proud, millennia-long tradition of ideational freedom.

Freedom of expression is, frankly , the most Indian of values; one that was staunchly defended by Lord Brahma himself in the Natya Shastra. In ancient India one was free to create and encourage various versions of the holiest of epics like the Ramayan and Mahabharat; and all versions, some even unorthodox, were celebrated.In fact, one could even be an atheist in ancient India, as the Charvaks were (probably from the seventh century BC), and nobody would commit violence against them for being `ungodly'. One could practise out-of-the-ordinary rituals, as the Aghoras did (like ritual sex), and unlike in modern India, nobody would ban their practices as long as they didn't hurt another. Everyone had a right to find their own truth, in keeping with the spirit of the Rig Vedic maxim: Ekam Sat Vipraha Bahuda Vadanti. Truth is one, but the wise men speak it as many .

I would ask for only two restrictions to be placed on freedom of expression. On someone who exercises freedom of expression to suppress the freedom of expression of another; that is unacceptable. And on anyone who uses freedom of expression to directly call for violence. In every other case, absolute and unfettered freedom of expression should be practised.Every banned book should be unbanned. Every argument, no matter how troubling it may be, should be allowed expression. Sigmund Freud had said that the first human who hurled an insult instead of a stone was the founder of civilization.

All of us who count ourselves as liberals and are proud Indians must ask for the First Amendment to be repealed.Moreover, we must not practise the kind of hypocritical freedom of expression that the westerners practise, where views not in alignment with the prevailing orthodoxy are suppressed; not through violence, but by ensuring that one is prevented from visiting various public forums or one's works are not published (for example, the gagging of Ayaan Hirsi Ali). I must state that I disagree with many things Ms Ali says; but we must defend the right to speak even of those whose views are deeply troubling, provided that there is no direct call for violence.

Stopping the free flow of ideas is against India's innate culture. We are not in any sense being "westernized" if we ask for unfettered freedom of expression. In fact, we are being very Indian. Furthermore, as our ancestors realized thousands of years ago, freedom of expression is the foundation of a liberal and decent society .

As the Rig Veda says: `In speech is enshrined blessed glory , is enshrined Mother Lakshmi herself.'

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Time to do away with Jawaharlal Nehru's first amendment to the Indian Constitution