Archive for July, 2017

Can Donald Trump block you? A First Amendment group is suing to find out. – Columbia Journalism Review

Official DHS photo by Jetta Disco.

It is where he inveighs against FAKE NEWS, promotes his television appearances, and trumpets his administrations accomplishments. Its also where he reports on meetings with world leaders, discusses policy positions, and announced his choice for FBI Director. President Donald Trumps Twitter feed is the epicenter of a new-age White House communications strategy that has earned the oft-repeated label unprecedented.

Whether Trumps demeanor in the messages he posts is presidential is debatable, but his own spokespeople have made clear that his tweets constitute official statements. Not everyone, however, can see those statements or participate in the discussion that occurs in the replies.

On Tuesday, the Knight First Amendment Institute at Columbia University filed a lawsuit against Trump and two of his top advisors on behalf of seven people who have been blocked from viewing tweets by the presidents @realDonaldTrump account. Attorneys at the Knight Institute argue that Trumps blocking of users who have criticized him amounts to viewpoint-based exclusion, which is not allowed under the First Amendment.

President Trumps Twitter account, @realDonaldTrump, has become an important source of news and information about the government, and an important public forum for speech by, to, and about the President. In an effort to suppress dissent in this forum, Defendants have excludedblockedTwitter users who have criticized the President or his policies. This practice is unconstitutional, the federal suit alleges.

The case raises complicated questions about how to apply constitutional principles written in a time of pamphlets and town square debates to the realities of the Facebook and Twitter era. Skeptics might say that blocking someone on Twitter doesnt make it impossible for that person to see tweets. He or she can simply sign out of that account or create a different one. Blocking adds a barrier to entry, to be sure, but its not an insurmountable obstacle. Additionally, as anyone who spends time on Twitter knows, comments on the platform can be crude, distasteful, and even scary, and blocking trolls allows for some measure of control over the people with whom you interact.

But attorneys at the Knight Institute have put forward a series of arguments that make a compelling case for thinking differently. They are not arguing that we redefine Twittera privately owned social media platformwrit large as a virtual town square where all voices are welcome. Rather, they claim that because of the way the President and his aides use the @realDonaldTrump Twitter account, the account is a public forum under the First Amendment.

If the presidents feed is defined as a public forum, citizens cannot be excluded from viewing his statements and engaging in discussions simply because they disagree. The lawsuit alleges that Trump, along with Press Secretary Sean Spicer and Social Media Director Dan Scavino, have violated the First Amendment rights of seven Americans who were blocked soon after criticizing or mocking the president, and that the block infringes on the plaintiffs First Amendment right to petition their government for redress of grievances.

When [government officials] open up a space and allow the general public to come in and comment in that space, whether a city council meeting or a Facebook page, that is a designated public forum, Katie Fallow, a senior attorney at the Knight Institute, tells CJR. The courts have held that when you do that, you cant then exclude people based on viewpoint. The Knight Institute, which has not been blocked by Trumps account, is also a plaintiff in the suit. It argues that users who arent blocked are being deprived of their right to read the speech of the dissenters.

The reaction from legal experts last month to the Knight Institutes letter declaring its intent to sue was mixed, with some supporting the effort and others arguing the plaintiffs had a tough legal hill to climb. But in the weeks since, the Supreme Court issued a decision in which Justice Anthony Kennedy described social media as the modern public square.

Trump recently referred to his use of social media as modern day presidential. It will now be left to the courts to decide whether that requires a modern day update to First Amendment protections.

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Can Donald Trump block you? A First Amendment group is suing to find out. - Columbia Journalism Review

Obamacare’s First Amendment problem – PLF Liberty Blog – Pacific Legal Foundation (PLF) (press release) (blog)

The Affordable Care Act raises myriad constitutional problems. The Supreme Courthasheld that the commerce clause does not provide Congress with thepower to enact the individual mandate. The Court also invalidated, under the spending clause, provisions that required states to expand medicaid coverage or lose all federal medicaid funds.

But what about Obamacares First Amendment problem? A little-known portion of the law requires restaurants and grocery stores to provide calorie counts on menu items. As I explain on Fa on First, years of research showthat menu labeling does not change what people order in any significant way. Whats more, Obamacares menu labeling requirement may actuallymake it harder for restaurants to offer healthier options. To comply, restaurants that want to offer healthier items must paythousands of dollars first to a lab to test the food, and then to a printing company to print new menus.

In thiscomment letter, PLF informed the Food and Drug Administration that the menu labeling requirement violates the First Amendment. The First Amendment not only appliesto laws that censor speech, but also to laws that compel speech. At a minimum, laws that force people to speak must directly advance a substantial governmental interest. The menu labeling requirement doesnt do that. Rather, it forces restaurants and grocery stores to bear the costs of a law that, if anything, could decrease the number of healthy options they can provide to their consumers.

Good news may be on the way. The FDA has already decided to delay the implementation of the menu labeling rule.This administration may decide to scrap it altogether. If not, yet another constitutional challenge to Obamacare could be on its way.

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Obamacare's First Amendment problem - PLF Liberty Blog - Pacific Legal Foundation (PLF) (press release) (blog)

Hazelwood Schools to host First Amendment workshop with ACLU – STLtoday.com

Two months ago, the American Civil Liberties Union of Missouri was prepared to take the Hazelwood School District to court for suspending dozens of students who walked out in protest for unionized teachers.

Now, the district and ACLU are holding a community workshop together about the First Amendment in schools.

According to the district's website, the workshop will be held on Monday, July 31 from 6-8 p.m. at the Hazelwood administration building, which is at 15955 New Halls Ferry Road.

The suspensions of about 200 Hazelwood West High students in May sparked outcry from students, parents and civil rights activistswho viewed the incident as a violation of freedom of speech. The district, on the other hand, said the walkout was not peaceful and that students had been running and cursing during it. After three days of heavy community pressure,the district rescinded thesuspensions.

In 1988, Hazelwood was the subject of a U.S. Supreme Court case about freedom of speech in schools, Hazelwood v. Kuhlmeier. The court then ruled that school officials could exercise editorial control over the student newspaper and student speech so long as it was "reasonably related to legitimate pedagogical concerns."

The workshop's speakers include Hazelwood Superintendent Nettie Collins-Hart, ACLU of Missouri Executive Director Jeffrey Mittman and two Washington University School of Law professors: Gregory Maragian and Eric Miller. The event will be moderated by alumnus Reece Ellis, who graduated from Hazelwood East High this year.

Shake off your afternoon slump with the offbeat or overlooked news of the day.

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Hazelwood Schools to host First Amendment workshop with ACLU - STLtoday.com

Dershowitz Rips NY Times for Trump Jr Treason Accusation Conduct Covered by First Amendment – Breitbart News

Wednesday on Fox Business Networks Cavuto: Coast to Coast, Harvard law professor Alan Dershowitz dismissed accusations of treason aimed at Donald Trump, Jr., as a New York Times op-ed suggested, for his meeting with a Russian lawyer offering opposition research on his fathers Democratic opponent Hillary Clinton during the 2016 presidential election.

Dershowitzpointed to The New York Times publishing of the Pentagon Papers in 1971, noting thatit was protected by the First Amendment.

[T]heres really no difference under the First Amendment between a campaigner using information he obtained illegally, from somebody who obtained it illegally, and a newspaper doing it, he said. So I think this is conduct that would be covered by the First Amendment. Its also not prohibited by law. Theres been so much overwrought claim. There are people who are talking about treason. I cant believe The New York Times had an op-ed yesterday in which treason was mentioned without even looking at the definition.

Follow Jeff Poor on Twitter @jeff_poor

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Dershowitz Rips NY Times for Trump Jr Treason Accusation Conduct Covered by First Amendment - Breitbart News

Trump contradicts his son’s emails, suggests Russia preferred Hillary Clinton – Washington Post

In an interview conducted on July 12, the Christian Broadcasting Network's Pat Robertson asked President Trump whether Russian President Vladimir Putin should be trusted. (Christian Broadcasting Network)

On Tuesday, President Trump's son released emails in which he was toldthat the Russian government was working to elect Trump something U.S. intelligence services long ago concluded.

OnWednesday, the elder Trump doubled down on his past doubts about that conclusion even going so far as to suggest that it wasHillary Clinton that Putin wanted.

In an interview with the Christian Broadcasting Network's Pat Robertson,Trump expounded at length on this theory. Here'sthe full quote:

Its something that you dont like talking about, but again we are the most powerful country in the world, and we are getting more and more powerful because Im a big military person. As an example, if Hillary had won, our military would be decimated. Our energy would be much more expensive. Thats what Putin doesnt like about me. And thats why I say, Why would he want me? Because from Day One I wanted a strong military; he doesnt want to see that. And from Day One I want fracking and everything else to get energy prices low and to create tremendous energy. Were going to be self-supporting we just about are now. Were going to be exporting energy. He doesnt want that. He would like Hillary where she wants to have windmills. He would much rather have that because energy prices would go up and Russia, as you know, relies very much on energy. So there are many things that I do that are the exact opposite of what he would want. So what I keep hearing about that he would have rather had Trump, I think probably not because when I want a strong military you know she wouldnt have spent the money on military, when I want a strong military, when I want tremendous energy, were opening up coal, were opening up natural gas, were opening up fracking all the things that he would hate, but nobody ever mentions that.

This isn't entirely surprising, in the context of everything Trump has said about Russian hacking in the 2016 election. Trump has occasionally conceded that Russia was probably behind the hacking, but he has never really conceded that it was meant to help him specifically.

It's not difficult to surmise why: Trump views the whole Russia matter as an effort to delegitimize his presidency, and the fact that he won by such a narrow marginmeans it's plausible that Russia put him over the top. He can't have that.

During the election, there was some thought that perhaps Russia was merely doing this to destabilize American democracy, not to benefit a specific candidate.But Trump takes things a step further here by suggesting rather implausibly that Putin in fact favored a President Clinton or at least didn't want a President Trump.

The reasons Putin may have favored Trump over Clinton are myriad. Putin's history with Clinton was a strained one, at best, for a whole host of reasons. Clinton in 2011 criticized corrupt parliamentary elections in Russia as neither free nor fair.It was during her time as secretary of state that Congress passed the Magnitsky Act instituting sanctions against Russia for human rights abuses (this remains perhaps the major sticking point between the two countries, and it's what that Russian lawyer who talked to Donald Trump Jr. last year was focused on). And after the Russian annexation of Crimea from Ukraine, Clinton in 2014 compared Putin to Hitler.

Trump, meanwhile, spent almost the entirety of his campaign saying curiously nice things about Putin, who was then a reviled foreign leader even among Republicans, and pushing the need for a better U.S.-Russia relationship.

Trump is clearly seeking to exploit his supporters' continued doubts about Russian hacking in the 2016. Polls show that not only do many Republicans not believe Russia hacked, but even fewer believe it was meant to help Trump. A May Fox News poll showed just 13 percent of Republicans thought Russia's involvement helped Trump, and a March CBS News poll showed just 13 percent thought it even tried to help Trump. Another 64 percent of Republicans said Russia didn't even interfere in the election.

This is why Trump will never back off his doubts. Conceding that Russia tried to help him is just too big a shot to his ego. Meanwhile, he has successfully created an alternate reality in which these consensus conclusions of the intelligence community are fake news proof that Trump's opponents will do anything to undermine him.

The question, as always, is when will Trump have taken this too far? When will his claims that run counter to the intelligence community and to his own son's well-publicized emails cause his supporters to lose faith in his credibility? Trump doesn't seem to have an off button on this stuff; his inclination, instead, is to push just as hard in the opposite direction.

For the first time, though, he's not just pitted against the intelligence community and logic, but against his own son's paper trail.

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Trump contradicts his son's emails, suggests Russia preferred Hillary Clinton - Washington Post