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The federal government has violated the First Amendment by refusing to register trademarks that officials consider disparaging, the Supreme Court ruled unanimously Monday in a decision that provides a boost to the Washington Redskins efforts to hang on to the teams controversial name.

The ruling came in a case that involved an Asian American rock group called the Slants, which tried to register the bands name in 2011. The band was turned down by the U.S. Patent and Trademark Office because of a law against registering trademarks that are likely to disparage people or groups.

In a ruling against the government, the court said the disparagement clause of the federal trademark law was not constitutional, even though it was written evenhandedly, prohibiting trademarks that insult any group.

This provision violates the Free Speech Clause of the First Amendment, Justice Samuel A. Alito Jr. wrote in a section of the opinion supported by all participating justices. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

[Will bands First Amendment argument resonate with Supreme Court?]

The ruling and a second one Monday that struck down a North Carolina law restricting registered sex offenders from social-media sites bolsters the reputation of the Supreme Court as protector of First Amendment rights.

At a time when some have claimed that speech may and should be regulated or censored if it is offensive, hurtful, or dangerous, the justices firm insistence that governments may not silence messages they dislike is noteworthy and important, Notre Dame law professor Richard W. Garnett said in a statement.

Redskins owner Daniel Snyder was more succinct in a statement: I am THRILLED. Hail to the Redskins. The team was not involved in the case at hand, although the court several times mentioned an amicus brief filed by the Redskins.

The case centered on the 1946 Lanham Act, which in part prohibits registration of a trademark that may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.

But the founder of the Slants, Simon Tam, said the point of the bands name is just the opposite an attempt to reclaim a slur and use it as a badge of pride.

In a Facebook post after the decision, Tam wrote: After an excruciating legal battle that has spanned nearly eight years, were beyond humbled and thrilled to have won this case at the Supreme Court. This journey has always been much bigger than our band: its been about the rights of all marginalized communities to determine whats best for ourselves.

Tam lost in the first legal rounds. But then a majority of the U.S. Court of Appeals for the Federal Circuit said the law violates the First Amendments guarantee of free speech. The government may not penalize private speech merely because it disapproves of the message it conveys, a majority of that court found.

(Jorge Ribas/The Washington Post)

Free-speech advocates had supported the Slants, and the courts decision seemed likely from the oral arguments.

But some ethnic and minority groups worried about what kinds of trademarks the government would now be forced to register. It seems this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful marks, said Lisa Simpson, an intellectual-property lawyer in New York.

While unified on the bottom line, the two groups of justices wrote separate opinions in support of the ruling.

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate, Alito wrote in part of the opinion, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Stephen G. Breyer.

Justice Anthony M. Kennedy wrote a concurring opinion that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all, Kennedy wrote.

The Slants were not happy to be associated with the Redskins band members oppose the team mascot but the band and the team have argued that the law was unevenly applied and gave too much control to the government.

The Supreme Court vindicated the teams position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the governments opinion, Lisa Blatt, a lawyer representing the Redskins, said in a statement.

The teams trademark registration was canceled in 2014 after decades of use. The team asked a district judge in Virginia to overturn the cancellation and was refused. The case is now in the U.S. Court of Appeals for the 4th Circuit in Richmond, awaiting the Slants decision.

The Native Americans challenging the team were disappointed, said their attorney Jesse Witten.

Nothing in the opinion undermines the decision of the [Patent and Trademark Office appeal board] or the District Court that the term redskin disparages Native Americans, Wittens statement read.

Justice Neil M. Gorsuch did not take part in Matal v. Tam.

The court showed no hesitation in striking down the North Carolina law, which was meant to keep registered sex offenders off social networks and websites that could bring them into contact with potential targets.

Kennedy said the law was far too broad, enacting a prohibition unprecedented in the scope of First Amendment speech it burdens.

By prohibiting sex offenders from using those websites, with one broad stroke North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge, Kennedy wrote.

Lester Gerard Packingham is one of about 1,000 people prosecuted under the law. As a 21-year-old in 2002, he had sex with a 13-year-old girl and pleaded guilty to taking indecent liberties with a child. As a registered sex offender, he was prohibited from gaining access to commercial social-networking sites.

But in 2010, he celebrated the dismissal of a traffic ticket on his Facebook profile:

No fine, no court cost, no nothing spent. ... Praise be to GOD, WOW! Thanks JESUS.

One North Carolina court struck down the law and his conviction, but the state Supreme Court reversed, saying the law was carefully tailored to meet the states goals.

None of the justices agreed with that. A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more, Kennedy wrote. He was joined fully in his opinion by the courts liberals: Ginsburg, Breyer, Sotomayor and Kagan.

Gorsuch did not take part in the case.

The rest of the court agreed North Carolinas law could not stand. But Alito said Kennedy had gone too far in his musings and risked sending the message that states are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites.

He was joined by Roberts and Thomas in that concurring opinion.

The case is Packingham v. North Carolina.

Ian Shapira contributed to this report.

Link:
Supreme Court: Rejecting trademarks that 'disparage' others violates the First Amendment - Washington Post

Mondays decision indicates that Justice Anthony Kennedy, pictured above, is moving in the right direction on the issues at the heart of partisan gerrymandering.

Jonathan Ernst/Reuters

On Monday morning, the Supreme Court agreed to hear Gill v. Whitford, a blockbuster case that could curb partisan gerrymandering throughout the United States. Shortly thereafter, the justices handed down two excellent decisions bolstering the First Amendments free speech protections for sex offenders and derogatory trademarks. While the link between these two rulings and Whitford isnt obvious at first glance, it seems possible that both decisions could strengthen the gerrymandering plaintiffs central argumentand help to end extreme partisan redistricting for good.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The first ruling, Matal v. Tam, involves a dance-rock band called the Slants that sought to trademark its name. Simon Tam, the founding member, chose the name precisely because of its offensive history, hoping to reclaim the term. (He and his fellow band members are Asian American.) But the Patent and Trademark Office refused to register the name, citing a federal law that bars the registration of trademarks that could disparage or bring into contemp[t] or disrepute any persons, living or dead, institutions, beliefs, or national symbols. (The same rule spurred the revocation of the Redskins trademark.)

Every justice agreed that the anti-disparagement law ran afoul of the First Amendment. They split, however, on the question of why, exactly, the rule violates the freedom of speech. Justice Samuel Alito, joined by Chief Justice John Roberts as well as Justices Clarence Thomas and Stephen Breyer, applied the somewhat lenient test for commercial speech, which requires that a law be narrowly drawn to further a substantial interest. The trademark rule, Alito wrote, is ridiculously broad: It could apply to such theoretical trademarks as Down with homophobes (disparaging beliefs) and James Buchanan was a disastrous president (disparaging a person, living or dead). The law, then, is not an anti-discrimination clause, Alito concluded. It is a happy-talk clause, one that is far too sweeping to survive constitutional scrutiny.

Justice Anthony Kennedy perceived even more insidious censorship at play. In a concurrence joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, Kennedy wrote that the measure in question constitutes viewpoint discriminationan egregious form of speech suppression that is presumptively unconstitutional. Under the First Amendment, Kennedy explained, the government may not singl[e]out a subset of messages for disfavor based on the views expressed, even when the message is conveyed in the commercial context. The anti-disparagement rule does exactly that, punishing an individual who wishes to trademark a name that the government finds offensive. This is the essence of viewpoint discrimination, Kennedy declared, and it cannot comport with the First Amendment.

A similar rift opened up between the justices in the second free speech case of the day, Packingham v. North Carolinaanother unanimous ruling with split opinions. (Justice Neil Gorsuch did not participate in either case, as oral arguments came before he was confirmed.) Packingham involved a North Carolina law that prohibited registered sex offenders from accessing any social media website, including Facebook, LinkedIn, and Twitter. The language of the statute is so sweeping that it also barred access to websites with commenting features such as Amazon and even the Washington Post. In essence, the law excludes sex offenders from the internet. North Carolina has used it to prosecute more than 1,000 people.

Kennedy, joined by all four liberals, subjected the law to intermediate scrutiny, asking whether it burden[s] substantially more speech than is necessary to further the governments legitimate interests. He easily found that it did. The Cyber Age is a revolution of historic proportions, Kennedy wrote, and social media users engage in a wide array of protected First Amendment activity on topics as diverse as human thought. Our interactions on the internet alter how we think, express ourselves, and define who we want to be; to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. The North Carolina law therefore suppresses too much expression and is thus in contravention of the Constitution.

In his ode to social media, Kennedy proclaimed that the internet has become the modern public square, the 21st-century equivalent to those public streets and parks where the Framers hoped Americans would speak and listen, and then, after reflection, speak and listen once more. (Kennedys prose remains distinctive as ever.) In a concurrence, Alito, joined by Roberts and Thomas, rejected Kennedys public square theory as loose, undisciplined, and unnecessary rhetoric that elides differences between cyberspace and the physical world. The three conservatives agreed that the North Carolina law swept too far but insisted that Kennedys opinion granted sex offenders a dangerous amount of freedom on the web.

So: What do these casesboth correctly decided, in my viewhave to do with gerrymandering?

To start, its important to view gerrymandering through a free speech lens, one developed by Kennedy himself in 2004. When the government draws districts designed to dilute votes cast on behalf of the minority party, it punishes voters on the basis of expression and association. To create an effective gerrymander, the state classifies individuals by their affiliation with political partiesa fundamental free speech activitythen diminishes their ability to elect their preferred representatives. Supporters of the minority party can still cast ballots. But because of their political views, their votes are essentially meaningless.

Districts designed to dilute votes for the minority party punish voters on the basis of expression and association.

Kennedy has called this a burden on representational rights. Its also something much simpler: viewpoint discrimination. In performing a partisan gerrymander, the government penalizes people who express support for a disfavored partymuch like, in Tam, the government penalizes those who wish to trademark a disfavored phrase. Both state actions punish individuals on the basis of their viewpoints: If you back the minority party, your vote wont matter; if you give your band an offensive name, you cant trademark it. And even though neither action qualifies as outright censorship, both restrict the public expression of ideas that the First Amendment is meant to protect.

Packingham also includes a subtler gift to the Whitford plaintiffs. In an aside, Kennedy compared the North Carolina law unfavorably to a Tennessee measure that bars campaigning within 100 feet of a polling place. Unlike the North Carolina law, Kennedy explained, the Tennessee statute was enacted to protect another fundamental rightthe right to vote.

Perhaps this passage is just more loose rhetoricbut I doubt it. Fundamental rights receive heightened protection under the Constitution. And although most Americans would probably agree that voting is a fundamental right, the Supreme Court has been cagey about saying so and inconsistent in safeguarding it. When the court upheld a voter ID law in 2008, for example, six justices paid lip service to the right to vote even as they shredded it; only the dissenting justices noted that the right is fundamental under the Constitution. Similarly, when the courts conservatives gutted the Voting Rights Act in 2013, they did not call the right to vote fundamental. Instead, they celebrated the fundamental principle of equal sovereignty, an archaic and discredited states rights doctrine. The upshot of that decision seemed to be that states rights are fundamental but voting rights are not.

Kennedy voted to uphold the voter ID law and kneecap the Voting Rights Act. But the justice is always evolving, and his aside in Packingham reads to me like a renewed commitment to the franchise set in the free speech context. If so, thats terrific news for opponents of partisan gerrymandering. Such gerrymandering limits an individuals fundamental right to vote (by making her vote useless) on the basis of her viewpoint (that is, her support for a political party). In effect, the practice attaches unconstitutional conditions to both voting rights and free speech, putting many voters in a quandary: They can either muffle their political viewpoints and cast meaningful ballots or express their political viewpoints and cast meaningless ballots. The Constitution does not permit states to punish individuals for exercising their rights in this manner.

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I've never understood how allowing the party in power to openly rig the system in their favor is Constitutional. More...

Unfortunately, these tea leaves do not indicate inevitable doom for partisan gerrymandering. Kennedy recently indicated concern about judicial intervention into the redistricting process, and in the past he has questioned whether courts can accurately gauge which gerrymanders go too far. The Whitford challengers believe they have the right tool to measure partisan gerrymanders, a mathematical formula called the efficiency gap. Nobody yet knows if Kennedy will agree, and the justice has sent mixed signalsits worth noting that he joined the courts conservatives in voting to stay the lower court decision in Whitford while the justices consider the case. (The court had ordered Wisconsin to redraw its maps.)

Still, Mondays decision indicates that Kennedy and the court are, at the very least, moving in the right direction on the issues at the heart of partisan gerrymandering. Free expression and association arent really free if the government can punish you for your viewpoint by ensuring your ballot doesnt matter; the right to vote isnt fundamental if it can be diluted on the basis of political affiliation. The basic First Amendment principles Kennedy espoused on Monday explain why the court may well curtail partisan gerrymandering next term. In fact, they explain why the Constitution demands nothing less.

Read the original:
Does Partisan Gerrymandering Violate the First Amendment? - Slate Magazine

David Jadon 2:39 p.m. ET June 20, 2017

David Jadon(Photo: CONTRIBUTED PHOTO)

After more than a month of bad decisions, Indian River County School administrators finally have displayed some smarts. It took an honors student's steadfast belief in the First Amendment, and worldwide attention, to make it happen.

That honors student J.P. Krause, a top student, rising seniorand the winner of the vote for Vero Beach High School's senior class presidency never knew what hit him. His classmates in hisAdvanced PlacementU.S. History class asked him to give a speech in support of his campaign, and his teacher encouraged him to do so. He gave a lighthearted, 2016 presidential campaign-inspired, 90-second speech, and his classmates laughed.

Krause said he was for liberty while his opponent was for higher taxes. He said he was opposed to the rival high school Sebastian River, and his opposing candidate was for it. Krause proposed building a wall between the two schools and making the other school pay for it. Joy Behar of "The View" later said on national television that J.P.'s off-the-cuff speech was "smart."

MORE |Superintendent overturns principal's call on Vero Beach High School class election

"Smart" Behar had that right. Indeed, the very next day after the speech the day of the election Krause represented Vero Beach High in a national academic competition. He came in 10th individually while his Vero Beach team came in third nationally.

Smart.

Unfortunately, Krause had no idea trouble was afoot back at home. School administrators had learned of his campaign speech and decided it amounted to harassment. Of course, Krause had not harassed anyone in the speech, and anyone who saw the videoand knew Krauseknew he didn't and wouldn't have done so.

The principal disqualified Krause from the officeKrausewon fair and square, and punished him to boot. To add insult to injury, the principal decided the campaign speech should be entered into Krause's permanent disciplinary record as harassment.

Not so smart.

Laurence Reisman: Trump effect puts international spotlight on Indian River County school issue

When Larry Reisman of this newspaper heard about Krause, he wrote about the unfairness of the situation. Reisman called attention to the fact that Krausehad First Amendment rights the school did not consider. Pacific Legal Foundation, for whom I am working as a summer clerk, then got wind of it. Pacific Legal represents individuals and businesses when the government violates their constitutional rights. Punishing Krause for his humorous campaign speech clearly violated Krause's First Amendment rights.

Our Founding Fathers did not design the First Amendment to protect feelings. While under certain circumstances schools have the right to punish or censor student speech, this case did not fit those circumstances. Courts have ruled that school policies that go too far to censor speech are unconstitutional. So it is here.

A classmate had recorded the speech; the video demonstrated beyond dispute the school had wronged Krause.

Within days, the entire world had seen the video. Those on the left side of the aisle, including Whoopi Goldberg and Behar on "The View," and those on the right, including "Fox & Friends" and National Review, all sided with Krause. So did Univision, the New York Daily News and the London Daily Mail. The world took his side because reasonable people on the left, right and center know the First Amendment provides the bedrock for all of our freedoms.

The global attention finally caused some smarts at the local schoolhouse.

Sadly, this local uproar exemplifies a broader phenomenon across the country, where different viewpoints are censored or restricted by both college and high school administrators. The Founding Fathers and First Amendment scholars have recognized the importance of the "marketplace of ideas." Without it, free speech cannot truly exist.

Upon entering college, campuses greet students with free speech zones, oppressive speech regulations, banned speakers, safe spaces and censorship.Once the epicenter of discussion, debate and learning, campuses have become segregated intellectually, no longer challenging students to stand up, speak and engage civilly with one another.

Americans of all political stripes must speak up to put a stop to this nonsense.

J.P. Krause did nothing wrong. To the contrary, he is a champion of the First Amendment, standing up for his right to speak when so many others would bow down. Vero Beach High School should be proud of its new senior class president. The rest of the world is.

David Jadon, a summer law clerk at Pacific Legal Foundation, is a rising third-year law student at the University of Florida College of Law. Pacific Legal Foundation is representing J.P. Krause free of charge in his dispute with the Indian River County School Board.

Read or Share this story: http://www.tcpalm.com/story/opinion/contributors/2017/06/20/guest-column-first-amendment-wins-vero-beach-high-school/411648001/

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Guest column: National debate leads to First Amendment smarts at Vero Beach High School - TCPalm

Be careful not to skim over potential First Amendment challenges to commercial speech regulations in labeling cases. By whey of example, the Eleventh Circuit recently found that the actions of the Florida Commissioner of Agriculture and the Chief of the Florida Bureau of Dairy Industry violated Ocheesee Creamery LLCs First Amendment rights related to the labeling of its products.Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228 (11th Cir. 2017).

Ocheesee Creamery is a dairy company that produces milk and other dairy products. One such product is an all-natural, additive-free 100% skim milk, which Ocheesee Creamery labels as skim milk on the product packaging.

Florida law restricts the sale of milk and other milk products not classified as Grade A products. A Grade A designation requires that any vitamin A that is lost or removed from a product during the skimming process be replaced. Because Ocheesees product did not qualify for this Grade A designation, the state of Florida notified Ocheesee that its all-natural skim milk did not meet the definition of milk and, thus, Ocheesee could only sell this product if it was labeled as imitation skim milk. Ocheesee refused since the only ingredient in its product was, in fact, skim milk. Ocheesee also refused to add vitamin A back into its all-natural product. Ocheesee Creamery filed a lawsuit challenging this restriction in the Northern District of Florida, which found in favor of the State.

On appeal, the Eleventh Circuit applied the Supreme Courts test for evaluating restrictions on commercial speech, which was set forth inCentral Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). UnderCentral Hudson, a court considering a restriction on commercial speech must first determine whether the speech is protected under the First Amendment. The First Amendment protects commercial speech unless it 1) concerns unlawful activity or 2) is false or inherently misleading. The Eleventh Circuit found that neither of these exceptions applied to Ocheesee in this case.

First, the Eleventh Circuit held that Ocheesees use of the term skim milk on its product label was not unlawful because the states position was that under Florida law Ocheesee could call its product skim milk as long as the label also indicated that the product was imitation milk. Second, the Eleventh Circuit held that Ocheesees use of the term skim milk was not inherently misleadingor even, according to the Court, potentially misleadingbecause it was a statement of objective fact. As a result, the Court concluded, Ocheesees commercial speech on its all-natural skim milk label was constitutionally protected.

The Court then proceeded to applyCentral Hudsonsthree-pronged intermediate scrutiny test. Under this test, the Court must determine: 1) whether the asserted governmental interest is substantial; 2) whether the regulation directly advances the governmental interest asserted; and 3) whether it is not more extensive than is necessary to serve that interest.

The Eleventh Circuit focused its analysis on the third prong of the test, finding that Floridas restriction is clearly more extensive than necessary to achieve its goals. The Eleventh Circuit noted that there had been extensive negotiations between Ocheesee and the State concerning the language used on Ocheesees all-natural skim milk label, and pointed out that numerous less burdensome alternatives existed and were discussed by the State and the Creamery during negotiations that would have involved additional disclosure without banning the term skim milk. Consequently, the Court concluded that the restriction was more extensive than necessary to achieve the goals of preventing deception and ensuring adequate nutritional standards. The Court thus concluded that Floridas restriction of Ocheesees commercial speech violated the First Amendment and vacated the district courts grant of summary judgment in favor of the State.

The Eleventh Circuits decision offers some reassurance to companies that the First Amendment provides some protection for objectively truthful descriptions of their products, even in the face of restrictions imposed by various state labeling laws, although this protection continues to be balanced against the state interests served by these laws.

2017 Proskauer Rose LLP.

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Eleventh Circuit Does Not Skim Over First Amendment Concerns in Labeling Milk - The National Law Review

Analysis Law and Policy

Jun 19, 2017, 12:18pm Lisa Needham

One of the best ways to ensure people don't exercise their First Amendment rights is to make it far too hazardous and costly to do so. That is what is happening right now.

We live in an era of increasing crackdowns on public protests and whistleblowing: real, and increasingly effective, attacks on the First Amendment. The First Amendment, of course, promises us the right to free speech, but it also promises us the rights to assemble and to associate. In practical terms, this generally means that you can associate with whomever you choose to, assemble together in any fashion, and speak out against the government in whatever way you see fit.

One of the best ways to ensure people dont exercise their First Amendment rights is to make it far too dangerous and costly to do so. That is what is happening right now.

Attempts to brutalize protesters and criminalize protest are nothing new. The 2008 Republican National Convention (RNC), for example, saw police firing chemical agents and projectiles at peaceful crowds and mass arrests. The overcharging of arrestees that followed the convention only added to the feeling of dystopia. Prior to even engaging in any protests, eight individuals were arrested and eventually charged under an anti-terrorism statute. Why? Because they had some banal items like light bulbs, which police alleged could be filled with paint or chemicals and thrown, along with more obviously problematic things like U-locks (to chain themselves to things) and caltrops (steel points you put on the street to deflate tires). But the key point: They hadnt done a thing with those objects yet, so the anti-terrorism charge was more than a bit of a stretch. (Terrorism charges are more typically leveled when people are found with bomb-making material, or are found with innocuous material but have detailed how they plan to use that material to make an explosive.) Those charges were later dropped because the prosecutor felt that it would distract the jury.

As grim as the RNC charges were, theyve got nothing on the latest episode of overcharging protesters. More than 200 people were arrested for protesting during President Trumps inauguration in January. Most protesters were originally charged with only one count of felony rioting but, after very few of them pleaded guilty, a new grand jury indictment was returned that charges nearly all of them with eight felony counts, including inciting to riot, conspiracy to riot, and destruction of property.

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Make no mistake: Many of these individuals were first punished for exercising their right to protest, and are now being punished for exercising their right to demand a trial rather than a plea deal. The government is also attempting totry all the defendants together, which brings up serious questions of fairness.

As reported by BuzzFeed, Jason Flores-Williams, an attorney representing three of those defendants, has already asked District of Columbia Superior Court Judge Lynn Leibovitz, who is presiding over all of the Inauguration Day prosecutions, to require a separate trial for one his clients, rather than agree to the governments plan to try defendants together.

There is a spillover prejudicial effect where when evidence against one person as I said ends up in the jurys mind being evidence against everyone else who was there, regardless of whether that evidence was actually against them or proven against them in any direct or specific way, Flores-Williams toldBuzzFeed.

The Inauguration Day protesters face felony charges that carry up to ten years in prison. Thats far too high a price to pay.

Equally chilling, six journalists were also arrested during the inauguration and charged with felony rioting. (Charges have since been dropped for all but one of the journalists).

Another way to ensure that people arent able to speak truth to power is to restrict them from documenting abuses of that power. States keep trying to pass laws that criminalize the filming or photographing of police. Indeed, whether you can record police or not is still an open question for the courts. A divided U.S. Court of Appeals for the Fifth Circuitrecently ruled on the case of a Texas activist who was filming police activity outside a police station. The court held that individuals have a First Amendment right to film the police within the states of the Fifth Circuit: Louisiana, Mississippi, and Texas. The Fifth Circuit also noted that every circuit court that has ruled on the issue has found that the First Amendment does actually protect the right of people to film police officers while those officers are performing their duties. However, several circuits havent ruled on the matter, or have stated that the right isnt clearly established. Regardless of court rulings, police continue to push back: Just in the last year, the ACLU has had to go to court in Louisiana, Massachusetts, and Pennsylvania to defend the right of individuals to record the police. Being able to record the police and share those recordings is, of course, a key component of journalism in the modern digital and visual era.

Clamping down on whistleblowers and leakers is another way to ensure that people dont speak out. If the price of speaking out is too high, people will stop. The Obama administration aggressively prosecuted leakers at a much higher rate than during the administrations of his predecessors, even going so far as to oppose allowing leakers to mount a defense based on the First Amendment. In other words, the prosecutors filed motions to prohibit defendants from saying that they were performing a public service by leaking to the press. However, the defense should be allowed because the public has a First Amendment interest in knowing about the workings of government, and government employees are in the best position to share that information.

The Trump administration looks to be equally aggressive, if not more so, having undertaken its first leak prosecution by going after Reality Winner, who allegedly leaked information about Russian interference in the 2016 election. To be sure, what Winner allegedly leaked is information that the public absolutely does need to know about: the depth and breadth and persistence of Russian attempts to hack the 2016 U.S. election. However, she now faces a fine of up to $250,000, a prison sentence of up to 10 years, or both.

Trump has stated hed consider jailing journalists over leaks, while people like former Speaker of the House Newt Gingrich (R), and others,have stated that federal employeeleakers who talk to the press are committing treason. They arent, of course. In the United States, treason generally refers to U.S. citizens who use force to align with enemies of the country. Attorney General Jeff Sessions, of course, wants to actively pursue and prosecute leakers rather than address his own peculiar failure to remember when he talks to Russians.

At the same time as the threat of leak prosecutions looms, congressional Republicans are looking to lock down press access to their members, in large part because they dont want to talk about the nightmare that is their health care bill. Journalists were told they couldnt film interviews with senators without getting permission from the (Republican-led) Senate Rules Committee. Tim Scott (R-SC) bizarrely claimed that if journalists could roam the halls and talk to senatorssomething they have always been able to dothe cameras might capture his ATM PIN and he needed to keep that private. This effort, mercifully, failed relatively quickly, but theres no reason to think that congressional Republicans who have been dodging things like town halls left and right wouldnt welcome greater press restrictions.

Criminalize protest, veil the work of police, prosecute those who share vital information with the American people, and limit availability and accountability of elected officials. These are pages from an authoritarian playbook, not a democratic one, but it is the world we live in now. We need to be vigilant against further depredations where the right to speech is concerned by supporting protesters and whistleblowers in any way we can.

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The First Amendment Is in Increasing Danger Under a Trump Administration - Rewire