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Record shop owner Charles Freeman stands in handcuffs as a Broward detective searches him following his arrest in his store in Fort Lauderdale, Fla., June 9, 1990. Freeman was arrested for selling an undercover detective a cope of 2 Live Crew's album "As Nasty As They Wanna Be." A federal judge ruled the album obscene, but the 11th U.S. Circuit Court of Appeals reversed. (AP Photo/Doug Jennings, used with permission from the Associated Press)

Once dismissed as a fad, rap music has become a cultural mainstay and a billion dollar industry. The musical genre, a segment of which often features a hard-core assessment of societal woes in the inner cities, has come under threats of censorship through the years in a variety of contexts. Some government officials and others charged that certain rap lyrics were incendiary and contributed to violence. Case in point, the Federal Bureau of Investigation sent letters in 1989 to Priority Records about the rap group N.W.A.s hit song Fuck Tha Police.

Many other rappers have been threatened through the years with either obscenity charges or censorship efforts, including such rap pioneers as Ice-T and Too Short. Rap lyrics became the subject of a U.S. Supreme Court case, Elonis v. United States (2015), when the Court evaluated whether a man committed a true threat when he posted rap lyrics that allegedly threatened his ex-wife and others. However, the Court did not directly address the artistic merits, or lack thereof, of Elonis lyrics in issuing its decision.

In a high profile case, Broward County, Florida sheriff Nick Navarro prosecuted record store owners who sold the rap group 2 Live Crews album As Nasty As They Wanna Be, which contained many tracks filled with profanity and sexually laced language. Navarro believed that the album constituted obscenity.

Skyywalker Records, the record company of 2 Live Crews lead performer Luther Campbell, and the four members of the group filed a lawsuit in federal court, seeking a judicial declaration that their album was not obscene and that the actions of Navarro imposed an unconstitutional prior restraint on expression.

A federal district court judge declared the record obscene in Skyywalker Records v. Navarro (1990), applying the Miller Test from the U.S. Supreme Courts decision Miller v. California (1973). However, the plaintiffs appealed to the 11th U.S. Circuit Court of Appeals, which reversed in Luke Records v. Navarro (1992). The appeals court explained that the plaintiffs had submitted expert testimony that the album contained serious artistic value a contention not refuted by the sheriff by any expert testimony or other evidence other than a tape recording of the album.

A work cannot be held obscene unless each element of the Miller test has been met, the appeals court wrote. We reject the argument that simply by listening to this musical work, the judge could determine that it had no serious artistic value.

Another criticism of rap music, particularly the so-called gangsta rap genre, is that it can incite imminent lawless action. That was the essence of the argument filed by the attorneys for three family members of a slain Texas state trooper in Davidson v. Time Warner (1997). The state trooper was killed by Ronald Howard, who was listening to the rap album by Tupac Shakur entitled 2Pacalypse Now.

The plaintiffs contended that Time Warner, the producer of the album, was legally responsible for the death of Trooper Davidson, because the anti-police lyrics in 2Pacalypse Now caused Howard to kill the trooper. The plaintiffs argued that the music constituted incitement to imminent lawless action under Brandenburg v. Ohio (1969). They cited Tupac Shakurs claim that his music was revolutionary. Time Warner contended that the music was a form of protected expression under the First Amendment.

A federal district court in Texas sided with Time Warner and ruled that the album was protected by the First Amendment. Regarding the incitement allegation, the court explained: Calling ones music revolutionary does not, by itself, mean that Shakur intended his music to produce imminent lawless conduct. At worst, Shakur's intent was to cause violence some time after the listener considered Shakur's message. The First Amendment protects such advocacy.

There is a growing number of criminal cases involving the prosecutorial use of rap music as evidence in trials. Legal commentators Donald F. Tibbs and Shelly Chauncy write: There is a new form of policing and prosecutorial decisionmaking that is as dangerous as it is unconstitutional. It involves prosecutors using amateur rap music videos sometimes with scant additional evidence to prosecute and convict Black men. (35).

Prosecutors often seek to introduce the rap videos into evidence because they show the existence of a criminal enterprise, association with other members, familiarity with firearms, and a motive to commit certain crimes. Defendants often counter that the rap music videos are speech on matters of public concern, namely commentaries on urban life, the war on drugs, and the lack of hope in the inner city. However, courts often quote the hate crime case Wisconsin v. Mitchell (1993) for the proposition that the First Amendment does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.

For example, in U.S. v. Herron (2014), a federal district court in New York rejected the First Amendment arguments of Ronald Herron, a.k.a Ra Diggs, who sought to prohibit prosecutors from introducing rap music and rap-related videos. The court reasoned that the videos have bearing on issues in this case, i.e., charges of racketeering, racketeering conspiracy, murder in-aid-of racketeering, firearms offenses, etc.

Contrast that reasoning with the New Jersey Supreme Court in State v. Skinner (2014). The state high court ruled that the introduction of graphic rap lyrics into a murder trial was unduly prejudicial evidence that outweighed any potential relevancy of the material. While the court decided the case on evidence grounds, as opposed to the First Amendment, the state high court wrote: Fictional forms of inflammatory self-expression, such as poems, musical compositions, and other like writings about bad acts, wrongful acts, or crimes, are not properly evidential unless the writing reveals a strong nexus between the specific details of the artistic composition and the circumstances of the underlying offense for which a person is charged, and the probative value of that evidence outweighs its apparent prejudicial impact.

Rap videos and lyrics have been the subject of many free-speech disputes involving public school students and discipline by school officials. In Bell v. Itawamba County Sch. Bd. (2015), the Fifth U.S. Circuit Court of Appeals ruled that public school officials could discipline student Taylor Bell, whose rap persona was T-Bizzle, for his rap music video that he made off-campus after learning that two white teachers allegedly had sexually harassed several African-American students.

Bell contended that his off-campus artistic expression was protected speech under the First Amendment. However, school officials contended that the video was a form of an unprotected true threat and substantially disrupted school activities under the seminal standard from Tinker v. Des Moines Independent Community School District (1969). The Fifth Circuit majority reasoned that Bells recording was substantially disruptive, writing that threatening, harassing, and intimidating a teacher impedes, if not destroys, the ability to teach.

In Jones v. State (2002), the Arkansas Supreme Court upheld the delinquency adjudication of a student who was charged with making a terroristic threat towards a female student through rap lyrics. The student wrote the rap lyrics and handed it to the girl. The female student went to the school principal, who called the police.

After losing in the juvenile court, Jones appealed to the state high court. The state high court upheld his delinquency finding, reasoning that his lyrics were not protected by the First Amendment because they constituted a true threat.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.

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Rap Music and the First Amendment | The First Amendment ...

Lawyers for former President Donald Trump have filed a 78-page brief arguing that he should not be convicted by the Senate in an impeachment trial that begins Tuesday. Trump is charged with inciting an insurrection through various statements that allegedly encouraged the January 6 putsch targeting the US Capitol.

The briefs primary arguments are constitutional. It claims that the Constitution does not permit an impeachment proceeding against a former official. And the brief also argues that Trump is immune from impeachment because the actions which led to that impeachment are protected by the First Amendment.

The first argument is, at least, not entirely ridiculous. While the majority view among scholars is that a former official may be impeached and convicted by the Senate, there are non-frivolous arguments that a former president is beyond the impeachment power.

But the claim that impeaching Trump violates the First Amendment is risible. There are at least three separate reasons why the First Amendment does not protect Trump.

The first is that impeachment is, essentially, a human resources matter. The Constitution provides that Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office. So, with Trump out of office, the only question in his second impeachment trial is whether he should be permanently disqualified from certain federal jobs.

As the Supreme Court explained in Connick v. Myers (1983), the States interests as an employer in regulating the speech of its employees differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. Though the governments power to discipline employees (or former employees) for aberrant speech is not absolute, it is broad enough to allow Trump to be disqualified from office.

The second reason Trump cannot invoke the First Amendment is that many of the statements he made, which allegedly incited the January 6 attack on the Capitol, are lies. Trump accused Democrats of trying to steal the election, and he falsely claimed that he overwhelmingly won an election that he lost by over 7 million votes.

As the Supreme Court held in New York Times v. Sullivan (1964), the First Amendment does not protect individuals from defamation suits if they make a false claim with knowledge that it was false or with reckless disregard of whether it was false or not. For the reasons explained below, a similar rule should apply to Trump.

Finally, some of Trumps statements such as a January 6 speech where he told his supporters to fight like hell and that youll never take back our country with weakness. You have to show strength and you have to be strong may constitute incitement to imminent illegal action, which is not protected by the Constitution.

Although the First Amendment provides some protection to government employees, those protections are much weaker than those afforded to private citizens, at least when the government seeks to fire or otherwise take a job action against an employee.

Imagine, for example, that a public school hires someone to teach algebra, but this teacher refuses to follow the curriculum and instead spends their class time lecturing their students about 16th-century Japanese art. The First Amendment protects a private citizens right to speak about Japanese art, but the school district could discipline or even fire this teacher for failing to do their job properly even though their only offense was to engage in speech that is normally protected by the Constitution.

Moreover, while the First Amendment provides a relatively robust shield against workplace discipline to rank-and-file government employees, the Constitution offers very little protection to senior officials in political jobs. As a private citizen, for example, Secretary of State Tony Blinken is allowed to criticize President Joe Bidens foreign policy. But as one of Bidens top lieutenants, Blinken may be fired immediately if he makes a disparaging remark about Bidens policies.

As the Supreme Court explained in Branti v. Finkel (1980), if an employees private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the States vital interest in maintaining governmental effectiveness and efficiency.

Thus, Trumps private political belief that he, and not the lawful winner of the 2020 presidential election, should be president must yield to the States vital interest in maintaining governmental effectiveness and efficiency.

Trumps lawyers, for what its worth, primarily rely on the Supreme Courts decision in Bond v. Floyd (1966), which held that the Georgia House of Representatives violated the First Amendment when it prevented state Representative-elect Julian Bond from taking his seat ostensibly because of statements Bond made criticizing the Vietnam War. (Bond, an important civil rights leader, was one of the first Black representatives elected in Georgia after the passage of the Voting Rights Act of 1965; its fairly likely that the real reason he was excluded had less to do with his opinion of the war than the color of his skin.)

The Bond decision is more than a half-century old, and since then weve seen a whole line of cases involving First Amendment protections for government employees, including the Branti case. So its not entirely clear that Bond remains good law. To the extent that Bond is still valid, however, Trumps lawyers argue that cases like Branti only apply to appointed political officials and that Bond provides much more robust protections to elected officials.

Yet even if we accept that elected officials enjoy greater First Amendment protections than political appointees, the Bond case does not help Trump escape impeachment.

In 1960, civil rights activists ran an advertisement in the New York Times alleging that Alabama police used brutal tactics to suppress protests. In response to this ad, an Alabama police official filed a defamation suit against the Times, pointing to minor factual errors in the advertisements text. An Alabama jury handed down a $500,000 verdict against the Times.

But the Supreme Court tossed out that verdict in New York Times v. Sullivan (1964), a seminal decision holding that the First Amendment provides strong protections against defamation lawsuits that threaten free speech. Yet, while these protections are quite robust, especially when a defamation suit involves statements about a public figure that regard a matter of public concern, they are not unlimited.

At the very least, someone can still successfully be sued for defamation if they make a false statement with knowledge that it was false or with reckless disregard of whether it was false or not, according to New York Times.

Although New York Times was a case about defamation and not about the First Amendment rights of elected officials, the Court relied heavily on New York Times when it decided Bond. In explaining why Rep. Bonds rights were violated, the Court said that the central commitment of the First Amendment, as summarized in the opinion of the Court in New York Times Co. v. Sullivan is that debate on public issues should be uninhibited, robust, and wide-open.

Under Bond, the New York Times principle was extended to statements by a legislator.

Two years after Bond, the Court handed down its decision in Pickering v. Board of Education of Township High School District (1968), which established the modern framework governing First Amendment suits by government employees. Pickering involved a public school teacher, not an elected official, but it provides additional support for the view that government employees do not have a First Amendment right to lie.

In Pickering, the Court held that absent proof of false statements knowingly or recklessly made by him, a teachers exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.

New York Times, Bond, and Pickering, in other words, all suggest that a government employees First Amendment rights regardless of whether that employee is elected do not include a right to knowingly make false statements, or to make statements with reckless disregard as to whether they are true or not.

So when Trump riled up his supporters by falsely claiming that the 2020 election was stolen from him, he was not protected by the First Amendment.

In Brandenburg v. Ohio (1969), the Supreme Court held that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Thus, while speakers, including Trump, are protected even if they advocate illegal actions, this protection has limits. If such advocacy is made with the intent to incite imminent lawless action, and if such action is likely to result from a persons speech, then that speech is not protected by the First Amendment.

Brandenburg sets a high bar for incitement prosecutions. But Trumps statements immediately before the January 6 putsch were so egregious that they may overcome this high bar. In a speech that he gave right before his supporters attacked the Capitol, Trump told them that if you dont fight like hell, youre not going to have a country anymore, that they need to take back our country, and that they cant show weakness and have to be strong.

Writing in the Washington Post, Harvard law professor Einer Elhauge argues that these statements constitute constitutionally unprotected incitement, even under Brandenburg:

Although Trump tried to protect himself by stating that he was sure that the crowd would peacefully march to the Capitol, that does not alter the fact that he was inciting the crowd to forcibly stop Congress from counting the certified electoral votes once they got there.

Trump thus clearly incited lawless action (obstructing the operations of Congress is a crime) that was imminent (right after the speech, a short walk away). That he wanted to incite such lawless action is confirmed by reporting that for hours he watched the Capitol attack with pleasure and did not take any steps to stop it by calling out the National Guard or by urging his supporters to stand down.

Again, its far from clear that Trump could be prosecuted in a criminal court for his statements Brandenburg makes it extraordinarily difficult for prosecutors to win such cases. But thats not the issue in Trumps impeachment trial.

The issue in Trumps impeachment trial is whether, given the fact that the government has broad authority to make human resources decisions under the First Amendment, Congress may conclude that Trumps statements were so beyond the pale that he should be disqualified from holding high federal office in the future.

Setting aside these legal flaws in Trumps First Amendment argument, theres also a profound practical reason public officials should be subject to impeachment, even if theyve done nothing more than give an illiberal or anti-democratic speech.

Imagine that someday in the future, a new president is elected after campaigning on a fairly mainstream platform. Then, in the presidents inaugural address, they reveal that the entire campaign was a charade: I am a great admirer of Nazi Germany, the new president declares in their inaugural address, and I plan to use my presidency to build a Fourth Reich.

Should Congress really have to wait until this Nazi president takes some affirmative step to implement this agenda before they can be impeached and removed from office?

As George Mason University law professor Ilya Somin writes, the implication of Trumps argument that he cannot be impeached for his speech is that Congress could not impeach and remove a president who openly proclaimed his intention to turn the United States into a communist or fascist dictatorship, because speech advocating despotism is protected against criminal punishment by the First Amendment if uttered by a private citizen.

But Trump is wrong that he is protected by the First Amendment. The government has far more leeway when it makes personnel decisions than it does when it regulates speech by private citizens. And even if Trump had simply spoken as a private citizen, there is a strong argument that his conduct was so egregious that it could be prosecuted as incitement.

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Trump claims impeachment violates the 1st Amendment. Thats absurd. - Vox.com

An attack, an attempted coup against the U.S. government occurred in Washington, D.C. on Jan. 6, and Darrell Key in his letter published Jan. 11 called upon elected legislators to denounce the crimes committed against the U.S. Constitution and government.

The Greeneville Sun published an interview with Mr David Baker, employee of the 3rd Judicial District attorney generals office, in which Mr Baker stated: I went to Washington, D.C. alongside hundreds of thousands of others to show support for a fair democratic process I do not apologize for exercising my First Amendment right to show support for my political beliefs through peaceful and lawful demonstration while hundreds of thousands were there to protest the certification of the electoral college I got played like a fiddle. Baker also said he (had) removed a Dec. 21 post from his Facebook page, which said East Tennessee Patriots are on the road to fight back #MAGA.

Mr Baker is clearly cognizant that the intended purpose of the Jan. 6 Washington D.C. gathering was to interfere with the electoral college confirmation of Mr Bidens victory in the November 2020 presidential election, as 60 U.S. courts had found no credible evidence of election fraud.

Astute knowledgeable readers of this interview clearly recognized Mr Bakers after the fact and deliberate mischaracterization concerning his participation in this political insurrection, as being an expression of his First Amendment right to the self expression of his political views.

Interference with government functioning is not a First Amendment right, a fact Mr Baker is well aware of.

I personally challenge Mr Baker to clearly admit that his participation in the January 6th demonstration was improper, and that it violated his responsibility as an officer of the court, to demonstrate respect for the law and for the courts.

Admitting to a mistake in judgment, rather than falsely rationalizing and excusing his participation in an attempted government coup as being an expression of his First Amendment rights would go a long way towards demonstrating Mr Bakers level of knowledge, his honesty, his propensity for ethical or unethical behavior, and his fitness for or unsuitability of, his continuing to hold a position of public trust as a prosecutor in the Attorney Generals office.

Mr Bakers personal choices and actions do reflect upon his fitness to hold a position of trust as a representative of the interests of the public in legal matters. His stated rationalization for his presence in Washington, D.C., on Jan. 6 doesnt satisfy the credibility criteria level required by knowledgeable and critical readers.

As Mr. Richard Shakleford stated in his letter published Jan. 26, American history documentarian Ken Burns stated that in addition to the Civil War, The Depression and World War II, misinformation is the fourth crisis facing this great country.

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LETTER: Interference With Government Function Is Not A First Amendment Right - Greeneville Sun

Feb. 4, 2021 4:48 pm ET

In The Constitution Can Crack Section 230 (op-ed, Jan. 30), Philip Hamburger forgets how the First Amendment and Section 230 exist to create vibrant marketplaces for all kinds of expression. And both have done exactly that online and offline. Without Section 230 and its common-sense liability protections, the internet would likely become a one-size-fits-all cesspool. It would leave Americans with either an anything-goes, Wild West of an internet or an internet where aggressively moderated websites permit virtually nothing.

Section 230 prevents these dystopian outcomes. The law empowers platforms to compete for users by creating a variety of forumsfrom kid-safe and family-friendly to the more provocative and disturbing. It gives small businesses the chance to meaningfully compete against larger companies by saving them from the threat of devastating legal fees. That means Section 230 fosters a competitive internet where all users can engage in forums that best meet their unique needs.

Trace Mitchell

NetChoice

Washington

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First Amendment, Politics and Section 230 - The Wall Street Journal

As we approach the Senate trial on the impeachment of former President Donald Trump for incitement of insurrection against the Republic he swore to protect on Feb. 9, his lawyers and other defenders have made the astonishing claim that convicting him would somehow violate freedom of speech. Judicial Watchs Tom Fitton even asserted that convicting Trump would be devastating to the First Amendment because it would be a green light to remove others that engage in core political speech that would be criminalized if the Left doesnt like it.

As a constitutional lawyer who has defended the First Amendment for almost forty years, I agree with lawyer Chris Truax that these free speech claims are absurd. First, the First Amendment protects members of the public from having their speech suppressed or punished by the government, and does not shield government officials for accountability for their actions, even if they involve speech. A private citizen would have the First Amendment right to proclaim loyalty to Russia or China or to advocate the secession of Texas from the union. Does anyone seriously contend that free speech allows a U.S. president to violate his oath of office and do the same, and also escape accountability through impeachment for such treasonous acts? Apparently, Trump and his supporters do.

As the House impeachment managers have pointed out, moreover, even if Trumps actions were treated like those of a private citizen, and even if the First Amendment applied to Congressional efforts to hold a president accountable as it does to a criminal prosecution, the free speech defense would still fail. The Supreme Court ruled more than 50 years ago that the First Amendment does not protect speech when it is directed to inciting or producing imminent lawless action and is likely to do so. Trumps incendiary remarks just before the Jan. 6 violent insurrection at the Capitol, when he exhorted his followers to go to the Capitol and fight like hell, particularly when combined with evidence of his intent like reports that he was delighted as the riots were happening, could well be enough to warrant even a criminal conviction of Trump by a court. They are clearly enough to justify a conviction on impeachment in the Senate.

I have always believed that the First Amendment is first in our Constitution because, in important ways, free speech and the other rights it safeguards are crucial to protect our democracy. The attempt of a disgraced ex-president and his seditionist collaborators to try to hide behind free speech, as well as similar recent far right efforts to use freedom of speech to justify the violent actions at the Capitol on Jan. 6, truly dishonors our First Amendment.

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Free Speech Arguments Against Trump's Impeachment Dishonor The First Amendment - People For the American Way