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CASE PREVIEW ByAmy Howe on Apr 17, 2023 at 10:12 pm

The court will hear the First Amendment case Counterman v. Colorado on Wednesday. (R Boed via Flickr)

There is no dispute that the Facebook messages Billy Raymond Counterman sent to local Colorado musician Coles Whalen made her feel afraid. For years, Counterman sent increasingly menacing messages in which he suggested that he had seen Whalen who is identified only by her initials in court documents, but who has discussed the case on her website while driving and made comments such as Die and Fuck off permanently. Whalen told a family member that she was extremely scared after receiving these messages. She canceled appearances and her mental health declined. In 2017, Counterman was convicted and sentenced to four-and-a-half years in prison for stalking.

On Wednesday the Supreme Court will take up Countermans appeal to consider how courts should determine what constitutes true threats, which are statements not protected by the First Amendment. Should they use an objective test, that looks at whether a reasonable person would regard the statement as a threat of violence? Or should they instead use a subjective test, that requires prosecutors to show that the speaker intended to make a threat?

Both sides in Wednesdays case agree that the issue is an important one. Counterman stresses that the notion that a person can spend years in prison for a speech crime committed by accident is chilling. But the state of Colorado, which prosecuted Counterman, counters that Countermans messages frightened their recipient and disrupted her life. This is precisely why threats of violence are not protected by the First Amendment, the state says: to shield individuals from the fear of violence, which follows from the threats no matter what the person making the threat intends.

Colorados intermediate appeals court upheld Countermans conviction. It ruled that to determine whether Countermans statements qualified as a true threat, courts should apply an objective test that considers whether a reasonable person would regard the statement as a threat of violence. Because Countermans statements were true threats, the appeals court concluded, they were not protected by the First Amendment and his conviction for stalking therefore did not violate the Constitution.

Counterman came to the Supreme Court last summer, asking the justices to take up his case which they agreed to do earlier this year.

In his brief in the Supreme Court, Counterman stresses that the First Amendment protects speech from government interference even when others may regard it as offensive. There is a presumption that restrictions on the content of speech are invalid, he says. If the government wants to regulate speech, it must show that there is a long tradition of doing so. But there is not such tradition of holding someone criminally liable for speech that he did not intend as a threat, he argues.

The test for determining whether speech is a true threat that is not protected by the First Amendment must consider the speakers intent, Counterman contends. A purely objective test, like the one used by the Colorado court, runs the risk of criminalizing inevitable misunderstandings and good-faith miscommunications particularly when so much speech occurs on the internet, where the evidence of criminal conduct consists of bare words on a screen.

There is also a real risk that the state courts objective test will restrict even legal speech as well, Counterman continues. Not wanting to risk criminal liability, speakers will refrain from any speech that, although legal, might nonetheless be construed as threatening in nature. This is particularly true, Counterman suggests, for members of unpopular political groups or ethnic or religious minorities, whose beliefs might differ from the police, prosecutors, and jurors who enforce the reasonable person standard and who may worry that restrictions will be selectively enforced.

Under a subjective test, Counterman concludes, his conviction cannot stand. His speech was constitutionally protected because Counterman, who suffers from mental illness, did not intend to threaten the musician. The trial judge appeared to recognize as much, Counterman notes, calling Countermans statements delusional and saying he thought that most people would give Counterman the benefit of the doubt that he is doing it through a lack of understanding, as [o]pposed to a malicious intent. But prosecutors told the jury that they only had to show that a reasonable person would be disturbed by Countermans statements not that he knew that they would cause distress for the woman herself.

Colorado disputes Countermans characterization of the history of government regulation. In early English and U.S. history, threats were punished regardless of the speakers intent, the state contends. That approach continued into the 20th century, the state says, and it is reflected in the Supreme Courts First Amendment cases involving other kinds of speech, such as incitement, defamation and false or misleading commercial speech.

Although the ultimate inquiry is whether an intended or foreseeable recipient would reasonably perceive the statements as a serious expression of intent to commit physical violence, the state continues, the test must also look at the entire context in which the statements are made including the platform on which the statements were communicated and whether the statement was made publicly or privately. This approach, the state reasons, acknowledges that, when viewed in context, words may not always convey the meaning that they would standing alone; it also accounts for the unique challenges posed by communications over the internet.

At the same time, the state adds, because the test does not hinge on the reaction of a statements recipient, it protects political hyperbole, art, other valuable expression, and even poorly chosen words by requiring that the entire context be considered.

Finally, the state emphasizes that any test that requires prosecutors to show that the speaker intended to make a threat does not provide enough protection for the targets of the speech. Even if a speaker does not realize that the target of his statement feels threatened, the state tells the justices, the speech can still have debilitating impact. Moreover, the state adds, the harm from threats can affect not only individuals but also institutions, such as schools and houses of worship sometimes prompting them to close down.

Applying the proper context-driven objective test to this case, the state writes, underscores just how threatening Countermans messages were. Using the First Amendment to immunize harmful, aggressive, and repeated behavior, like Countermans here, would distort the protections our Constitution provides by enabling more harm and less speech.

The question before the court in Countermans case is a familiar one. Nearly a decade ago, the court granted review inElonis v. United States, involving the same issue, but ultimately decided that case on a different ground.

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Colorado mans First Amendment challenge will test the scope of protection for threatening speech - SCOTUSblog

In the midst of the demonstrations at the state Capitol, hundreds of protesters packed into the confines of the old building, creating walls of shoulders and walls of sound as they chanted their support for the three Democratic lawmakers facing expulsion that day.

The ceiling rattled with chants and the floor shook with the stomping as the crowd undulating like an oversized snake coiled and hissed with each vote broadcasted on the TV monitors.

The overwhelming turnout on April 6 was just one snapshot of the demonstrations following The Covenant Shooting and subsequent expulsion of two Democratic lawmakers that placed the First Amendment in all its power, complexity and even limitations on full display for the nation to see.

Following the mass shooting at The Covenant School, demonstrations against gun violence sprang up across the state, but most prominently in Nashville. Reps. Justin Jones, D-Nashville, Justin Pearson, D-Memphis and Gloria Johnson, D-Knoxville, led their own protests on the House floor, breaking the chamber's rules to speak in support of stricter gun control measures during a House session on March 30.

The politics of expulsion: How Republicans handed Democrats a major win with historic vote

The pushback on the three Democrats came swiftly: a historic expulsion vote left Jones and Pearson ousted from their seats and Johnson left standing by merely one vote.

Its a great First Amendment argument, said Aftyn Behn, a local activist and demonstrator, wiping rain from her drawn hood as she stood with demonstrators outside the Capitol. We have three democratically elected officials who used their First Amendment rights on the floor, supporting others using their First Amendment rights, and yet theyre being expelled. Its not right.

Although Jones and Pearson have been reinstated via interim appointments, Tennessee Republicans received national criticism for the expulsion, along with mounting questions regarding the First Amendment rights of the lawmakers and whether they were violated by the GOPs retaliation.

Before his expulsion, Pearson sent a letter to his House colleagues, explaining he was using his First Amendment rights to help "elevate the voices in our community who want to see us act to prevent gun violence."

"We must always stand up for what we believe to be right and just, we must say no to more gun violence," he wrote.

Related: A week after expulsion, Justin Pearson of Memphis returns to Tennessee House

Related: Justin Jones returns to state legislature after unanimous Nashville Council appointment

But the First Amendment rights of a lawmaker speaking inside the legislature is more complex, legal experts say.

David Hudson, a Belmont University law professor and First Amendment expert, said a key case to study is a U.S. Supreme Court decision from 1966.

Bond v. Floyd is an extraordinary case that sets strong First Amendment precedent for legislators, even from 57 years ago, Hudson said.

Julian Bonds case holds similarities to todays case of the Tennessee Three, as they've become known. Bond, a young, Black, newly elected representative in the Georgia House of Representatives, was blocked from taking his elected seat from the majority-white body following statements made on a hot political issuein his case, his opposition to the Vietnam War.

The case went all the way to the U.S. Supreme Court, which ruled in Bonds favor and the action against him a violation of his First Amendment rights as well as those of his constituents.

The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy, wrote Chief Justice Earl Warren, who issued the courts opinion on the case. The central commitment of the First Amendment is that debate on public issues should be uninhibited, robust, and wide-open. Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected."

Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office, Warren added. Also so they may be represented in governmental debates by the person they have elected to represent them.

But a key difference between Bonds case and the Tennessee Three is the timing of their statements. Bonds comments were made in a news interview outside the House chambers. Jones and Pearson broke House rules to use a bullhorn to lead the gallery in chants for gun control, resulting in a recess in legislative business.

The facts are different, but the larger principle is you cannot remove someone from a state legislature because of their political viewpoints, Hudson said. The GOP could try to claim that they (removed Jones and Pearson) because of the disruption. And that argument may succeed. But still, you're still doing the same thing. So I do think while Bond v. Floyd is not exactly on point for this case, there is a strong precedent that argues that the Tennessee leaders in the House overstepped their authority. I think that at least symbolically, this was an assault on First Amendment.

Kevin Goldberg, a First Amendment specialist at the Freedom Forum, said the difference between the two cases is vital to deciding if the expulsion is a historic violation of the First Amendment rights of the lawmakers, the GOP enforcing the House rules on decorum and order or an overly harsh punishment.

You hung us out to dry: Leaked audio shows hot tempers inside GOP caucus after expulsion vote

Constitutional rights trump anything else, he said. You can pass all the rules you want but if they attack the First Amendment, the First Amendment wins, even for legislators. But does that mean they can say and do every everything they want, whenever they want? No.

Goldberg said there are many instances where a lawmaker's right to freely speak can be limited, regardless of Bond v. Floyd and especially considering the venue in which they are speaking.

The first limitation would be whether these three are considered public employees, Goldberg said. Because there's a concept called public employee speech that says when you're acting as a public employee, your First Amendment rights are limited because of your association with the government because it might be perceived that you're talking for the government.But Goldberg said that this legal standard determined by the court case Garcetti v. Ceballosin 2006 is unlikely to be used by the state of Tennessee as the reason to limit the legislators speech, considering one of the main arguable exceptions to this rule is the idea of protesting something thats a matter of public concern matters like mass shootings.

Another limitation that Goldberg said could apply to the lawmakers right to speak is rather simple: whether they were engaged in unprotected areas of speech, like inciting violence.

If they engaged in unprotected areas speech, then their rights fall away entirely, Goldberg said. We're talking about incitement to imminent, lawless action. We're talking about fighting words. We're talking about true threats against other members of the legislature. I dont see any argument that can be made that (they did this).

Finally, Goldberg said where the speech took place is also applicable. Whether it is in a non-public or public forums can determine free speech limitations, he said.

The Capitol floor, called the well, is what we would probably call a non-public forum, he said. It's an area owned by the government that has not traditionally been open to free speech for all.

Non-public forums, defined by Perry Education Association v. Perry Local Educators Associationin 1983, are areas that the state may reservefor its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speakers view.

This rule, Goldberg said, puts the argument right back where it started the state can claim that the space is non-public, where they have a right to limit the legislators free speech in the interest of decorum. But the ruling, and subsequent punishments, have to be applied evenly which is where Goldberg said he believes the state runs afoul.

I think the argument on the side of the legislators will be that the application of these restrictions, in the form of expulsion and censure, is applied in an overbroad way, he said. What we're talking about here is viewpoint discrimination: you've treated these three on this side of the issue differently than you might have treated people who might be against gun control.

In essence, Goldberg said the state may have an arguable right to limit expression of free speech on the floor but the First Amendment violation comes not in the limitation itself, but in the consistency of punishment for violations of these limitations.

I think that that going from zero to 60, so to speak, and kicking two members out is what we would call overbroad, Goldberg said. There's a whole lot of actions that can, and probably should have been, taken in the middle. And frankly, a whole lot of actions that would probably have been applied to others, and historically have been applied to others, and not applied in this case. So these three could not have predicted they would have gotten in trouble for engaging in a First Amendment-based action. Thats a defense in itself.

One thing that was not up for debate, however, was the overwhelming display of the First Amendment from the thousands of demonstrators that rallied at the Capitol over the past few weeks.

It's just great that so many people come out and use nonviolent protest, and the right of assembly, to try to affect change on an issue, Goldberg said. It was multigenerational, and I love seeing kids protest. Its why we do this work: that the freedom for each generation continues, that this tradition we've had in the country of love of assembly of speech, and of petitionall five rights that came squarely into play here.

The USA Today Network - Tennessee's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.

Have a story to tell? Reach Angele Latham by email at alatham@gannett.com, by phone at 731-343-5212, or follow her on Twitter at @angele_latham

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A 'symbolic attack': How the First Amendment was front and center during expulsion debate - Tennessean

From Singh v. Amar, decided Dec. 5 by Judge Sue Myerscough (C.D. Ill.):

Plaintiff is a second-year law student at the University of Illinois College of Law. Mr. Singh enrolled in the University on a full-tuition merit scholarship and eventually was invited to join the Illinois Law Review.

Shortly after beginning his first semester, Mr. Singh met with Defendant Virginia Vermillion, the law school's Dean of Students, to amend his law school application. He alleges that Dean Vermillion responded to his request by remarking that "[y]ou fucking [M]iddle [E]asterners are untrustworthy." Mr. Singh is of Sikh origin.

After his first semester, Mr. Singh filed formal complaints against instructors who he believed had graded his coursework and exams capriciously. Mr. Singh also had conflicts with other students and school administrators. The school made several informal attempts to resolve Mr. Singh's concerns and disputes, but those attempts were unsuccessful.

In April 2022, Dean Vermillion contacted the University of Illinois Behavioral Intervention Team (BIT) to share her concerns regarding Mr. Singh's behavior. Dean Vermillion alleged that Mr. Singh had threatened Dean Vermillion and other administrators, made female instructors and students uncomfortable, and shown signs of "disjointed" thinking.

Illinois law requires that post-secondary institutions take preventive and proactive action to prevent campus violence. The BIT therefore assesses and monitors "students exhibiting aberrant, dangerous, or threatening behavior." To ensure that the BIT's work is unimpeded, the University's various codes of conduct require the subject of a BIT complaint to comply with any "reasonable" directives. Failure to comply with BIT's directives can result in disciplinary sanction, including dismissal.

In June 2022, Defendant Katherine Snyder, the University's Associate Dean of Students and a member of the BIT, reached out to Mr. Singh to request an informal, non-disciplinary meeting regarding Dean Vermillion's claims. Dean Snyder wrote that such a meeting was "a necessary and required step in the process when we are made aware of situations such as this one." But Mr. Singh declined to accept Dean Snyder's invitation. Instead, Mr. Singh responded that the First Amendment shielded him from "compulsory speech," demanded access to his student records, and threatened to take legal action.

On November 18, Mr. Singh filed this suit pursuant to 42 U.S.C. 1983, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. The Complaint1 alleges that Defendantsall officials, employees, and trustees of the University of Illinoisviolated Mr. Singh's First, Fifth, and Fourteenth Amendment rights by compelling him to meet with the BIT, retaliating against him for his exercise of his right to free speech, and subjecting him to the strictures of an unconstitutionally vague code of conduct.

Mr. Singh seeks a preliminary injunction [that] would bar Defendants from subjecting him to further disciplinary process during the pendency of this case.

The first question is whether denying Mr. Singh an injunction will cause him irreparable harm. Mr. Singh argues that any number of consequencesfrom a compulsory meeting with the BIT to the premature demise of his legal careerwould follow. In response, Defendants contend that "the stakes are much lower." They say that Mr. Singh's "decision not to meet with BIT" would be "the sole cause of any 'irreparable harm' he now claims to face."

Irreparable harm "means an injury that money cannot repair." Put differently, irreparable harm is that which cannot be rectified by a favorable final judgment and an award of money damages or a permanent injunction. "Not every conceivable injury entitles a litigant to a preliminary injunction," and "[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief."

As noted above, Mr. Singh alleges two discrete irreparable harms. He alleges that in the absence of an injunction he will be compelled to speak with the BIT, and in so doing will suffer a violation of his First Amendment right "to refrain from speaking at all." Mr. Singh also alleges that he will be expelled from the University if he continues to assert that right by declining to meet with the BIT.

The gravity of Mr. Singh's allegations is obvious. And the disciplinary sanctions that Mr. Singh may face are troubling. But the harms he alleges here are too speculative to warrant the extraordinary measure of preliminary injunctive relief. Prohibiting the University "from enforcing a universally applicable disciplinary code does not seem to this court, on this limited record, to be a reasonable solution to this very difficult problem."

First, Mr. Singh has not shown that meeting with the BIT will cause him irreparable constitutional harm. The First Amendment prohibits state institutions from compelling individuals "to voice ideas with which they disagree." As the parties agree, the University's codes of conduct obligate Mr. Singh to comply with the BIT's "reasonable" requests. But nothing indicates that the University intends to force Mr. Singh to engage in the kind of speech protected by the First Amendment. The codes of conduct do not require that Mr. Singh take a particular position or disavow a particular viewpoint. Compare Pl.'s Ex. G (requiring meeting with BIT members "to get to the bottom of your many conflicts and the allegations you assert in them") with Miller v. Skumanick (M.D. Pa. 2009), aff'd sub nom. Miller v. Mitchell (3d Cir. 2010) (requiring that teenagers accused of "sexting" expressly repudiate the activity, in writing, to avoid criminal prosecution). Indeed, the codes of conduct do not require that Mr. Singh utter a single word. On this record, the Court cannot find that by meeting with the BIT, Mr. Singh will suffer an irreparable harm.

Nor has Mr. Singh shown that allowing the University's disciplinary process to move forward will cause him irreparable harm. Muchif not allof the reasoned case law suggests otherwise. E.g., Noakes v. Case Western Reserve Univ. (N.D. Ohio 2021) (finding consequences of pending medical-school disciplinary proceeding neither "certain" nor "immediate"); Doe v. Univ. of Chicago (N.D. Ill. 2017) (finding student's claim that disciplinary process would "threaten[ ] his reputation and his educational opportunities too speculative to constitute irreparable harm").

Mr. Singh alleges that the only path forward ends in his expulsion. If that proves to be the case, or if the University's disciplinary process is otherwise procedurally infirm, then Mr. Singh's dismissal from law school may well constitute an irreparable harm. Yet the possibility of a sanction is not the same as its guarantee. Until Mr. Singh's "hearing is eventually held, we do not know that harm will result; a tribunal might very well clear [Mr. Singh] of any wrongdoing." And until these processes have run their course, the Court cannot find a clear showing of irreparable harm.

The decision was appealed, but has now apparently been settled, so the appeal will likely be dismissed (but the district decision will remain as potentially persuasive precedent). Congratulations to Katherine Tierney and Michael D Hayes (Husch Blackwell LLP), who represent the university defendants.

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No First Amendment Violation in Requiring Law Student to Meet with "Behavior Intervention Team" Related to ... - Reason

I cannot believe that this is happening to me again, and that the implications are even greater than they may have been in this first trial that I went through, she said, from her East Coast home, in a location she prefers not to share. And after what I went through and after what my family had to go through, and considering the clear, long-lasting harm that this had on me. I just can't believe that anybody would question whether or not this is a true threat.

Countermans public defenders contend his conviction was a violation of his free speech and appealed his case all the way up to the U.S. Supreme Court. They argue that Counterman was mentally ill and never intended to hurt Whalen and that he didnt understand the messages to be truly threatening because of that mental illness. They also argue that the notion that people could be imprisoned for things they say online opens up a larger free speech debate that touches on First Amendment protections.

I think it really highlights the kind of errors that can happen here, said John Elwood, a Washington, D.C.-based attorney who will argue the case on behalf of Counterman this week. The words coming out of someones mouth, he really did not understand them to be a threat. Here, there is a real reason to believe he didnt understand it in those terms.

For Whalen, her ordeal has now spanned more than a decade and nearly derailed her emerging career and upended her life.

Shes had to leave Colorado, change careers and push herself through fears she never thought were possible, like panicking about playing in front of people she cant see. She stopped doing live performances and waited to restart until she felt stronger.

I realized that trauma doesnt just heal because somebody goes to jail, she said. The damage had been done. What I anticipated was that I would be the person that I was before the trial and when the trial ended. And what I found was that I was not.

The months between when Counterman was arrested and when he was convicted and sentenced were among the most harrowing for Whalen, who knew that he could have been angry that she reported him to police.

He was out on the streets with me, she said.

At the suggestion of police detectives, Whalen took a concealed-carry class and began carrying around a gun something she had never done before. She varied her routes so she would be harder to follow.

And, increasingly, she found it extremely difficult to do what she loved best: sing and perform.

She began feeling terrified when performing in dark rooms where she couldnt see everyone.

At one particular performance in Dallas, her palms got clammy, she started seeing spots and was having trouble breathing. At the time, the now 43-year-old thought she was having a heart attack. She played one more song, sitting down, and then had to leave the stage. She went to a dressing room and cried hard for a very long time. When she finally came out to talk to her bandmates, she told them she didnt know if she could keep singing.

I told them, I don't know if any dream is worth feeling this terrible, she said.

During Countermans trial, she testified about the fear he put her through.

I decided to take the stand and that meant I had to prove that I suffered serious emotional distress, she said. I had to speak out loud in front of this man about all of the nightmares and sleepless nights and the canceled shows and not being able to go anywhere alone.

Once Counterman went to prison, Whalen thought shed be able to bounce right back to the performer she was before it all happened.

I thought that life would be mine again and sadly it wasnt, she said. We got this conviction but I still lost my dream. It was my dream and it wasnt his right to take that from me.

Whalen knew she needed to get out of Colorado and do something different. She accepted a marketing job on the East Coast, where she ended up meeting her husband and having two children.

I had changed so much, she said. Playing music, songwriting, performing, connecting with people in that way, thats who I am. Thats my dream. Thats what Ive always done. The fact that Im not playing much music these days is shocking to the people that have known me the longest. We're not just talking about a job that I lost here.

Whalen said it took years to heal.

I tried to find other ways to fulfill my passion, hoping that music would someday be available to me again, she said.

But she has just started to come back. She wrote a song about the experience called Stronger and she has even started playing live but only to small crowds, usually by invite only.

Then, she got the news that the U.S. Supreme Court was going to take a look at the constitutionality of the states decision to imprison her convicted stalker and whether those messages should have been protected speech.

I am just astounded, Whalen said. I cannot believe that this is happening to me again.

Whalen is torn about how to be present for the case now.

On one hand, she comes from a long line of public servants and she feels the responsibility to explain her side of the story and to convey how truly horrifying the years were when she was on the receiving end of so many unwanted messages.

One detective estimated that Counterman had sent her hundreds of thousands of messages maybe even one million of them. Whalen didnt read them all.

But shes worked so hard to get past the experience and doesnt want a major emotional setback. She decided not to go to arguments in person in Washington, D.C., on Wednesday. And she doesnt even know whether shell listen to them online.

We are here debating a law whose outcome could have serious implications for victims of cyber harassment and cyber stalking all over the United States, and reminding people that there are real humans whose lives are really damaged by this type of threatening speech, she said. Lawyers and justices can pull apart the single messages that he sent me. Was this one threatening? Was that one threatening? But the bigger picture, the lived experience is much more than that.

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One Colorado stalking victim never wanted to become the center of a First Amendment case at the US Supreme Court - Colorado Public Radio

If no settlement can be reached in Dominion Voting Systems' $1.6 billion defamation lawsuit against Fox News, the ensuing trial will prove to be one of the most important in the history of First Amendment law. On Sunday, the start of the trial was delayed by 24 hours, and reports of a possible settlement spread.

Defamation cases are notoriously difficult to win against media outlets because the plaintiffs must prove both that a claim was false and that it was made with "actual malice" that is, either"with knowledge that it was false or with reckless disregard of whether it was false or not." In this case, a number of factors favor Dominion. First, because Fox News' claims that Dominion had rigged the 2020 election against then-President Donald Trump were false, as withthe other tenets of the Big Lie, Davis ruled that Dominion only needs to prove that Fox News acted with "actual malice." Second, there is a wealth of evidencethat the key figures at Fox News knew that their public accusations against Dominion were false, yet made them despite that knowledge to please their audience. Finally, Fox News has already been scolded by the judgefor withholding important information about the title of board member Rupert Murdoch.

It is easy, amidst the high drama of a landmark free speech case, to lose sight of how we got where we are. The First Amendment of the United States Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." So what does it mean to "abridg[e] the freedom of... the press"? How can courts and policymakers remain faithful to the Constitution while protecting those who may be wronged by a dishonest or corrupt media outlet?

In this case, a number of factors favor Dominion.

Below are some key cases from American history that either have helped shape how that question is answered or which help illustrate the nuances of First Amendment law.

When Salon reached out to Leonard M. Niehoff, a professor at the University of Michigan Law School who specializes in the First Amendment, he replied that "it's tempting to answer your question not by citing three cases but by suggesting reading Sullivan three times. The decision casts a lot of light on the Dominion case."

Niehoff is alluding to New York Times Co. v. Sullivan,a landmark Supreme Court decision that simultaneously protected America's free press and stopped white supremacists from using frivolous litigation to silence their critics. The case's roots can be traced back to 1960 when The New York Times ran a full-page piece by Dr. Martin Luther King, Jr.'s supporters that criticized the police in Montgomery, Alabama for engaging in racist violence against civil rights protesters. White supremacists often responded to critical newspaper coverage by filing frivolous defamation lawsuits, usually by nitpicking an article's factual errors and suing to intimidate publishers into not running pro-civil rights content.

On this occasion, however, the wealthy right-wingers who lined up to back Montgomery police commissioner L. B. Sullivan's intimidatory litigation found their money was wasted. Despite winning early trials due to pro-Southern audiences that were openly hostile to civil rights first in an Alabama jury trial, then with the Supreme Court of Alabama the segregationists were shocked when the Supreme Court unanimously ruled against them in 1964. It found that in order to sustain a defamatory accusation, the plaintiffs must prove that the claim was false and that the individual(s) making it did so with either "actual malice" or recklessly.

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"Consider: Sullivan seeks to create room for the media to make good faith mistakes when telling important stories," Niehoff explained. "Is this a case of good faith mistakes? Were these journalists trying to get the story right but getting it wrong for understandable reasons? Or is this a different kind of case altogether?"

Niehoff also noted that, as with Sullivan,theDominioncase is also a microcosm of where America is at this point in its history."Sullivan had its origins in the civil rights movement and recognized the threat that southern officials would weaponize libel cases to resist it," Niehoff wrote to Salon. "Sullivan is a case about a great social struggle and the role of the media in advancing it. The Dominion case has its origins in a lie about an election outcome. It is a case about a great fraud, where the plaintiff claims the media helped perpetuate it. One can appropriately wonder what the Dominion case says about where we've strayed to as a society."

This is a situation where, although a court case did not directly set a legal precedent, it set a chill through an entire industry as effectively as if the court had ordered it.

"A psychiatrically-impaired POTUS is capable of doing so much harm," Dr. David Reiss, a psychiatrist and expert in mental fitness evaluations who along with Lee contributed to the book "The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President," told Salon. "In my opinion, it is irresponsible for mental health professionals not to inform the public and initiate discussion regarding concerns based upon objective facts (not speculation)."

"The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government," Black explained. "The press was protected so that it could bare the secrets of the government and inform the people. Only a free and unrestrained press can effectively expose deception in government."

"The decision is a bit of a libel buffet, offering up lots of principles that are somewhat disconnected from each other," Niehoff told Salon about the Gertzdecision. "But it seems to me possible that the case's approach to damages and other issues could prove important [toDominion]."

The story behindGertzbegins in 1968, when a lawyer named Elmer Gertz decided to represent the family of Ronald Nelson, who had been gunned down by Chicago police officer Richard Nuccio. Because Nuccio was ultimately convicted of second-degree murder, Nelson's family was suing him for damages. The John Birch Society opposed Gertz's advocacy, however, and falsely published that he was actually working for Communist front organizations as part of a conspiracy to destroy America's police force. They also falsely claimed that Gertz had rigged the trial to get Nuccio's conviction and that he himself had a criminal record. Gertz sued American Opinion (the publication which advanced these Bircher ideas) and, although he won a jury verdict and $50,000 award, lost his libel suit because a judge found he had not proved "actual malice." The Supreme Court later affirmed the lower court's ruling. As a result, America does not apply the standard of "strict liability" (holding someone accountable for the consequences of their actions regardless of their intentions) in defamation cases.

As the Gertzcase helps illustrate, one of the key variables in determining whether defamation occurred is ascertaining the presence or absence of "actual malice." While the courts found that Gertz did not meet that standard, the same was not true for Daniel Connaughton, a candidate for Hamilton, Ohio Municipal Judge in 1983. When it looked like Connaughton was going to win the election becausethe incumbent's Director of Court Services was arrested on bribery charges, a local newspaper owned by Harte-Hanks Communications that supported the incumbent decided to change that. Soon they ran a front-page story that falsely accused Connaughton of orchestrating the arrest through "dirty tricks." Among other things, it dishonestly stated that Connaughton had offered a member of the grand jury bribes in exchange for her assistance with the investigation. Connaughton sued Harte-Hanks and won both in a district court and in a Court of Appeals, as the evidence proved Harte-Hanks had intentionally published something false in order to harm Connaughton's reputation a clear example of "actual malice."

When Niehoff was asked to list important First Amendment cases, he made a point of singling Connaughton.

"There, the Supreme Court clarified the kinds of evidence that can show the presence of actual malice," Niehoff told Salon. "It turns out that the evidence looks a fair amount like the same sort of evidence a plaintiff would use in a simple negligence case. The actual malice standard provides important protection, but, once you get to trial, it's probably less protection than is generally understood. The case also clarifies how appellate courts should review adverse jury verdicts, which may ultimately be a factor here."

"In the present case, it is undisputed that Aequitron is a corporate plaintiff and that CBS is a media defendant," the judge ruled. "The defamatory material is a matter of legitimate public interest, as it affects the health and well-being of babies and is subject to federal regulation. Thus, the actual malice standard applies."

At the last second, however, the judge presiding over the case decided that the "veggie libel" law could not be applied in this case, forcing the plaintiffs to instead prove defamation under normal criteria instead of merely needing to prove financial losses. This was all that Oprah needed to prevail.

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First Amendment history hurts Fox News: How precedent helps ... - Salon