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The First Amendment promises that, among other things, Congress shall make no law ... abridging the freedom of speech but, in reality, there are always some legal restrictions on self-expression, as upheld by the Supreme Court.

One of the exceptions is for commercial speech, which is generally defined as speech intended for commerce and aimed at consumers or potential consumers. Its a legally tricky area of law in which the courts have determined the purpose of the speech and its audience determines whether outright lies or significant omissions are subject to First Amendment protections.

And its an area of law the anti-abortion movement seems determined to exploit in an effort to gain the right to mislead people who seek medical care from any health care provider opposed to abortion or birth control.

Whether the anti-abortion movement has a First Amendment right to lie to pregnant patients is the crux of a number of lawsuits in Illinois, consolidated by the courts, in which 20 crisis pregnancy centers are suing the state. They claim that their constitutional rights will be violated by a new rule that went into effect on Jan. 1. The rule requires that all medical professionals adhere by a standard of care that includes informing patients of all their medical options for a given diagnosis or situation, regardless of whether or not a provider is morally opposed to a given relevant option.

Felicia Morris-Bolar, center director of Planned Parenthood in the Bronx, N.Y., works in her office with a view from her window of the EMC Pregnancy Center signage.

Though broadly written, the law acts as a revision to Illinois Health Care Right of Conscience Act, a decades-old state law that was passed following Roe v. Wade, in order to ensure that providers who were opposed to abortion for religious reasons were legally able to recuse themselves from performing the procedure. The new amendment still doesnt force anyone to perform a procedure to which they have religiously motivated objections, but it does require that they inform their patients about everything relevant to their care and conditions. In other words, it is now illegal for a reproductive health care provider to not tell a patient about the existence of contraception or abortion.

But crisis pregnancy centers are, essentially, health care centers though they dont function like many other medical providers. Still, they often advertise and present themselves as full-fledged medical facilities, even when they are mostly avenues through which anti-choice activists some of whom are licensed medical professionals can try to convince people facing unintended pregnancy to avoid abortion.

So now, some of these Illinois-based CPCs claim that the new amendment violates their First Amendment rights by requiring them to mention procedures which they oppose on religious grounds.

The new amendment wasnt, however, intended to target crisis pregnancy centers, according to Lorie Chaiten, director of the Reproductive Rights Project at the American Civil Liberties Union of Illinois. As Chaiten explained in an interview with Mic, the new amendment was designed to ensure that all patients in Illinois receive care that meets the standards to which any given medical specialty is held, regardless of the religion of the provider. Legally, medical professionals are evaluated by whether they meet a standard of care a certain degree of skill and knowledge that would be considered the norm amongst peers when it comes to evaluating whether malpractice has occurred. Chaiten explained that the bill was designed to help pregnant people get information about all their medical options, whether or not the doctors involved would participate in carrying out the patients chosen course of action.

Stages of a fetus are displayed at the Illinois Right To Life a table while Republican presidential hopeful and former Arkansas Governor Mike Huckabee speaks at the Freedoms Journal Institute for the Study of Faith and Public Policy 2015 Rise Initiative on July 31, 2015 in Tinley Park, Illinois.

The ACLU of Illinois was one of the leading forces in the state working to pass the new amendment to guarantee that patients were not denied knowledge of treatment options at the expense of a providers religious beliefs.

For example, Chaiten pointed to a situation in which a pregnant woman who had planned to have a tubal ligation could be wheeled into an operating room for a C-section, totally unaware that her Catholic doctor wouldnt perform the tubal ligation. In that case, the woman might have to have a risky second surgery. The surgeons objections should have been made clear prior to the initial surgery.

Crisis pregnancy centers being forced to disclose the full range of a peoples medical options is simply a side effect of the larger amendment. Because health care provider is defined very broadly under the statute, anybody who issues any aspect of the provision of health care is covered by the statute by definition, Chaiten said.

It means that crisis pregnancy centers and the people who work in them who hold themselves out as health care providers are covered by Right of Conscience and now must also meet the obligations of this new amendment.

Chaiten doesnt have a lot of sympathy for the CPCs arguments that they have a First Amendment right to keep from telling their patients the full truth. You dont get a free pass. When every other health care provider has to give standard of care information, so do you, Chaiten says. Its not like you have to say, abortion is good. Thats not what it is.

And, there is legal precedent for the government to regulate commercial and professional speech in a way they cant with other forms of speech, Kelli Garcia, senior counsel with the National Womens Law Center, said.

Garcia said that this area of First Amendment law is pretty well established because the government has an interest and a duty to protect the health and well-being of its citizens.

NEW YORK, NY - MARCH 25: Participants in the International Gift of Life Walk, a pro-Life, anti-abortion event in New York, New York on March 25, 2017. Photo Credit: Rainmaker Photo/MediaPunch/IPX

Chaiten said that, in a number of amicus briefs theyve filed on these such issues, the ACLU has noted that patients make decisions about where to go based on the information a provider advertises, just as they make decisions about the kind of treatment they will receive based on the kind of information a provider gives them. She explained that this is exactly the sort of speech the Supreme Court envisioned as commercial speech, so that it could constitutionally be regulated to require accuracy.

Meanwhile, the challenges to Illinois amendment come on the heels of the news that the Ninth Circuit Court of Appeals moved to uphold San Franciscos Pregnancy Information Disclosure and Protection Ordinance another law recently challenged by CPCs. The San Francisco law prohibits CPCs from making false or misleading statements claiming that they offer abortions, emergency contraception or referrals to abortion providers.

The NWLCs Garcia says the Ninth Districts ruling speaks to exactly the issues now at play in Illinois.

We have truth in advertising laws that exist in other realms, and crisis pregnancy centers shouldnt be able to say were going to get out of the standards, the rules and regulations that regulate everyone else, Garcia says. People expect when they see advertisements that they get what they expect.

And in both San Francisco and Illinois, Garcia says, the laws simply require that anyone who positions themselves as a health care provider to live up to the same standards as all health care providers.

Continued here:
Why pro-life doctors want the First Amendment to protect their right to lie to patients - Mic

"We will probably never know the answer to that question," said Kobach, who, not for nothing, is running President Trump's Commission on Election Integrity. "Because even if you could prove that a certain number of votes were cast by ineligible voters, for example, you wouldn't know how they voted."

We do, in fact, know the answer to that question.

He provided no evidence for that claim -- likely because, well, there is no evidence to provide.

It didn't make sense then. It doesn't make sense now.

That Kobach, who is leading a commission devoted to "election integrity," would repeat something that has ZERO evidence to back it up is remarkable. Just to be totally clear: This is not a "he said, he said" issue. Everyone in a position to know -- except Trump -- says Clinton won the popular vote.

What's even more amazing is that the Trumpian focus on the popular vote is totally pointless. We decide our presidents by the electoral college -- which Trump won! No one is disputing that fact! Trump is the president through inauguration day 2021 no matter what happened in the popular vote.

Let's say it together: Hillary Clinton won the popular vote. Donald Trump is the president.

See, that wasn't too painful!

More here:
Trump's 'election integrity' chief won't say if Hillary Clinton won the popular vote - CNN

The FBI learned Russia had hacked the Democratic National Committee back in the summer of 2015. In the spring of 2016, security agencies became aware there was a broader Russian campaign to meddle in the U.S. election. By the summer, they had determined what it looked like.

Their first objective was to undermine the credibility and integrity of the U.S. electoral process. They were trying to damage Hillary Clinton," said former CIA Director John Brennan speaking at Fortune s Brainstorm Tech conference in Aspen Wednesday morning. "They thought she would be elected, and they wanted her bloodied by the time she was going to be inaugurated and they were also trying to promote the prospects of Mr. Trump,

Also clear to Brennan and his national security colleagues at the time: Russian President Vladmir Putin had authorized the campaign. (We have our ways, Brennan said, when asked how they had come to that conclusion.)

That the U.S. government held such intelligence and didnt respond to Russia more aggressively before the election has baffled and angered many, but Brennan defended the Obama Administrations approach, saying anything more may have made things worse. He explained:

In terms of cyber doctrine which you can do, you could have a symmetric cyber strikethere are things you can do [like release all of Putins financial records]but the consideration is, is that going to be purely punitive and going to lead into an escalatory cycle in the middle of a presidential campaign?

And then it gets worse and then the Russians do more, which really calls into question the credibility and integrity of the election in November. Were trying to do everything possible to stop them, but not allow it to be a self-fulfilling prophecy in terms of what the Russians were trying to accomplish.

He added that while America has cyber capabilities that match those of Russia and other more aggressive states, the government is thoughtful about when and how best to deploy them. (One consideration: businesses and citizens can become targets in escalating cyber warfare.) In any case, he said, I dont believe that anything we would have done would have stopped the Russians from doing these activities.

Because of all that, hearing Trump refer to meeting Putin as a great honor several made Brennans blood boil a bit. As for the ongoing investigation into the current Administrations dealings with Russia in the run-up to the election and Trumps repeated denial of them, Brennan said only, He said things. I knew things.Im not going to pulse one against the other. (Though hes not involved, he says the FBI will be looking for evidence of three things: collusion, obstruction of justice and financial irregularities.)

Brennan was more forthcoming on the topic of whether the President has damaged the nations intelligence agencies by repeatedly challenging the findings of their Russia investigation:

Mr. Trump takes the intelligence product when it suits his interests, but he seems to be a very selective consumer of information, not just intelligence. I think thats very, very dangerous because not only does it undermine the confidence of people within the intelligence community, but it undermines the confidence of our allies and partners overseas. If hes questioning U.S. intelligence, how should they feel about it?

The next time we go to one of our partners and say, We really need your help on this issue because we have good intelligence that says X, why should they believe Mr. Trump or someone else from the administration after theyve denigrated the quality of the intelligence communitys work?

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Russia Wanted Hillary Clinton 'Bloodied': Ex-CIA Director | Fortune ... - Fortune

The Democratic establishment appears to not be learning any lessons. Photograph: Chip Somodevilla/Getty Images

Donald Trump is one of the least popular politicians in the history of the United States. Yet, Trump is still more popular than Hillary Clinton. Let that sink in.

According to the latest Bloomberg National Poll, Trump has a net favorability of 41% whereas Clinton has a net favorability of 39%. If Democrats are to escape the political wilderness, they will have to leave Clinton and her brand of politics in the woods.

Now, there is no doubt that Clinton has suffered sexist double standards just as Barack Obama encountered racist double standards. Trump labeled her Crooked Hillary and his supporters rallied around the chant Lock her up. Rich in hypocrisy, Trump has continued to attack Clinton for her emails even though his son has proven to have done much worse.

Nevertheless, it would be wrong to pin all of Clintons unpopularity on sexism and the conspiracies of the extreme right. The Bloomberg poll demonstrates that more than one-fifth of Clinton supporters say they now have an unfavorable view of her. Based on follow-up interviews with poll participants, many Clinton voters expressed that their negative feelings were not simply due to her losing but were about the Democratic partys positioning for the future.

Even though Clinton has blamed everyone but herself, it is clear that her campaigns failure to galvanize voter turnout was one of the biggest reasons why Trump won. Her checkered record on progressive policies, bland centrist message and the Democrats presumption that Trumps nomination sealed their victory probably did not help.

Clinton has largely kept a low profile since the election, occasionally sending Twitter barbs in Trumps direction. The best case scenario for Democrats is for Clinton and her family to stay away. The wise thing for the party to do is to abandon the failed Third Way centrist politics that she and her husband have come to exemplify.

Even so, the Democratic establishment appears to not be learning any lessons. Kamala Harris, the first-term California senator rumored to be a frontrunner for the Democratic presidential nomination in 2020, recently mingled with top Clinton donors and supporters in the Hamptons. Apparently tying rising talent to the infrastructure of a politician less popular than Trump is the game plan for moving forward.

Playing mostly defense against Trump and talking a lot about Russia, the Democratic establishment has struggled to develop an alternative message that Americans find attractive. According to a recent ABC News/Washington Post poll, only 37% of the country believes Democrats stand for something. Even the new sticker options for the Democratic Congressional Campaign Committee are depressingly shallow. Some of the slogans read: Make Congress Blue Again and I Mean, Have You Seen The Other Guys?

Although the establishment comes across as unimaginative and clueless, it is not as if Democrats lack other options. Bernie Sanders has become and remains the most popular politician in the whole country. His bold and progressive populist campaign may have lost out to Clinton in the primaries, but it may reflect a more viable blueprint for the future. The question is whether Clinton loyalists will put aside their purity politics and be pragmatic enough to change the direction of the party.

Looking across the pond, Jeremy Corbyns Labour Party provides another example to learn from. Dismissed by Blairite centrists in his own party, Corbyn not only over-performed in the general election, he rewrote British politics.

As Matthew Yglesias argued in Vox, Corbyns electoral map looks a lot like Clintons; not only did he inspire young voters in a similar way to how Sanders did here, Corbyn ran on a bold policy agenda. In an age in which voters are characterized as irrational creatures who dont vote because of policy, YouGov found that the top reason supporters backed Labour was because of the partys social democratic manifesto.

Democrats have become a tale of two wings. If the Clintonite establishment wing comes across as hopelessly uninspiring, the Berniecrat progressive wing has appeared energetic and full of ideas. Consider the #PeoplesPlatform sponsored this week by Sanders Our Revolution alongside other organizations, such as Democratic Socialists of America, Womens March and Fight for 15. This platform which Americans can sign a petition for urges Democrats in Congress to support bills, such as Medicare for All, Free College Tuition, Voting Rights and Criminal Justice and Immigrant Rights.

Certainly, Democrats might not win all of these progressive measures in Congress. But fighting for these measures would not only shift the political terrain, it would attract Americans desperately looking for a positive alternative to the Republicans.

Clinton did not provide a true alternative to the status quo. Democrats should look elsewhere for a blueprint forward and leave her politics far behind. Remaining attached to her would be political madness. The majority of Americans know it.

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Hillary Clinton is more unpopular than Donald Trump. Let that sink in - The Guardian

As part of the National Constitution CentersInteractive Constitution project, leading scholars across the legal and philosophical spectrum find common ground on the Constitutions articles, amendments and provisions. In this essay, Brian C. KaltandDavid Pozen look at how the Twenty-Fifth Amendment seeks to answer questions raised by the original Constitutions treatment of presidential and vice-presidential vacancies and presidential disability.

The Twenty-Fifth Amendment seeks to answer a series of questions raised by the original Constitutions treatment of presidential and vice-presidential vacancies and presidential disability.

First, what happens when a presidential vacancy arises? Article II, Section 1, Clause 6 of the Constitution states that in case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President. The line of succession from President to Vice President is clear, but what exactly devolves on the Vice President? Is it the office of President or just its powers and duties? When President William Henry Harrison died in 1841, Vice President John Tyler forcefully asserted that he had become President. Although Congress accepted this result, some disputed Tylers reading of the Presidential Succession Clause.

Second, what should happen when a vice-presidential vacancy arises? The original Constitution did not provide for filling such a vacancy. Prior to the adoption of the Twenty-Fifth Amendment, one Vice President resigned, seven died in office, and eight took over for Presidents who died in office: all in all, the vice presidency was unoccupied more than 20 percent of the time. This was less of a problem when the office was held in low regard, which it mostly was until the mid-twentieth century. But as the vice presidency began to grow into its modern forma sort of deputy presidencyit became more worrisome for the office to be vacant. These worries were sharpened by Congresss design of the 1947 Presidential Succession Act, which places the Speaker of the House and the President Pro Tempore of the Senate immediately behind the Vice President in line for the presidency, even when they do not belong to the Presidents political party.

Third, what happens if the President becomes unable to discharge the powers and duties of the office? Several Presidents suffered debilitating illnesses and injuries. For weeks and months at a time, the country was left without effective or accountable presidential leadership. Article II, Section 1, Clause 6 provided for the Vice President to step in when the President had an inability to discharge [his] powers and duties, but it provided no decision-maker, no procedures, and no definition of inability. Nor did it make clear whether the Vice President would act as President only until the President recovered, or instead would become President for the duration of the term. No Vice President wanted to seem like a usurper. In practice, power was never transferred and presidential inner circles typically concealed the Presidents condition. This pattern came to be seen as increasingly irresponsible with the advent of nuclear weapons during the Cold War; the nation needed a fully functioning presidency at all times. In 1958, President Dwight D. Eisenhower sought to break the pattern by being more open about his health and by entering into an agreement with Vice President Richard Nixon that provided for Nixon to serve as Acting President in the event of presidential inability.

The assassination of President John F. Kennedy on November 22, 1963 brought renewed attention to these questions. Led by Senator Birch Bayh, Congress gave them focused consideration and, in July of 1965, sent the Twenty-Fifth Amendment to the states for ratification. Less than two years later, the necessary thirty-eighth state legislature ratified it.

In response to the first question, regarding presidential vacancies, Section 1 of the Twenty-Fifth Amendment formalizes the Tyler precedent. It confirms that when the President is removed from office, dies, or resigns, the Vice President becomes President. When President Nixon resigned in 1974, Vice President Gerald Ford became President under Section 1.

In response to the second question, regarding vice-presidential vacancies, Section 2 of the Twenty-Fifth Amendment requires the President to nominate a replacement Vice President when that office becomes vacant, subject to confirmation by a majority of both the House and Senate. In 1973, Gerald Ford became Vice President through Section 2 after Vice President Spiro Agnew resigned. When Ford took over the presidency the following year, he promptly invoked Section 2 to nominate Nelson Rockefeller to fill the resulting vice-presidential vacancy.

In response to the third question, regarding presidential inability, Sections 3 and 4 of the Twenty-Fifth Amendment establish two procedures for transferring authority to the Vice President as Acting President. Building on the Eisenhower-Nixon precedent, Section 3 allows the President to transfer authority temporarily, by submitting a written declaration that he is unable to discharge the powers and duties of his office. The President can reclaim those powers and duties later by submitting a second declaration to the contrary. President Ronald Reagan (once) and President George W. Bush (twice) transferred authority to their Vice Presidents under Section 3 for a matter of hours while they underwent planned surgeries.

Section 4 addresses the dramatic case of a President who may be unable to fulfill his constitutional role but who cannot or will not step aside. It provides both a decision-maker and a procedure. The initial deciding group is the Vice President and a majority of either the Cabinet or some other body that Congress may designate (though Congress has never done so). If this group declares a President unable to discharge the powers and duties of his office, the Vice President immediately becomes Acting President. If and when the President pronounces himself able, the deciding group has four days to disagree. If it does not, the President retakes his powers. But if it does, the Vice President keeps control while Congress quickly meets and makes a decision. The voting rule in these contested cases favors the President; the Vice President continues acting as President only if two-thirds majorities of both chambers agree that the President is unable to serve.

Section 3 and (especially) Section 4 are long and complicated by constitutional standards. Nevertheless, they leave a number of issues unsettledmost significantly, what counts as presidential inability. At the Constitutional Convention in 1787, delegate John Dickinson asked, What is the extent of the term disability in the proposed presidential succession clause, and who is to be the judge of it? No response is recorded. By giving the President, Vice President, and Congress important and distinct roles, the Framers of the Twenty-Fifth Amendment went a long way toward answering the second part of Dickinsons question, rather than try to resolve the first part.

Brian C. Kalt is Professor of Law and The Harold Norris Faculty Scholar at Michigan State University College Of Law. David Pozen is Professor of Law at Columbia Law School.

For further discussion between Kaltand Pozenon the Twenty-Fourth Amendment, read the following Matters Of Debate:

The Unusual, Imperfect, Excellent Twenty-Fifth Amendment By Brian C. Kalt

The Deceptively Clear Twenty-Fifth Amendment By David Pozen

Filed Under: 25th Amendment

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Interactive Constitution: The Twenty-Fifth Amendment - Constitution Daily (blog)