Mediaboss Marketing

Former US national security adviser John Bolton is the latest ex-government official to rebuke the misconduct, ignorance and self-serving behaviour of the president, Donald Trump, in the form of a tell-all book. The Room Where It Happened details Trumps idiosyncrasies, offers of favours to authoritarian leaders, lack of basic knowledge, and obstruction of justice as a way of life.

Promoting the book in a series of interviews, Bolton told one reporter that hehopes it will be a one-term presidency: Two terms, Im more troubled about, he said.

Yet the battle around the publication is more than another Trumpian political scandal. It centres on the disclosure of US national security information, particularly the concept of prior restraint that allows the government to censor speech or expression before it has occurred.

The issues originate in whistleblowing in the 1970s when former officials spoke out against government wrongdoing. Bolton is certainly no whistleblower although the legacy of that era informs an ongoing struggle today around first amendment freedom of speech rights and state secrecy.

Beyond politics

In many respects, the case is emblematic of Trumps White House. Bolton was in post from April 2018 to September 2019, the longest-serving national security adviser under Trump, but now asserts the president lacks the competence to carry out the job and is not fit for office. When the first excerpts from the book emerged, Trump characteristically lashed out with a tweet full of insults and accusations.

The politics are certainly messy. Bolton, a hawkish Republican, is an opportunistic political operative. With the publication of the book, he has angered Trumps supporters. At the same time, his revelations have not won him friends among the presidents numerous opponents.

Boltonsrefusal to testifyduring the impeachment hearings at the beginning of the year, preferring to save his material for his book, has led to accusations that he was puttingpersonal interest before national interestas well as profiteering, andtrying to save his legacy.

Prior restraint

The crux of the matter is not individual politics but whether Bolton was authorised to publish the memoir. On June 20, Judge Royce C. Lamberth of the Federal District Court of the District of Columbia denied a last-ditch Justice Department motion to block its release. Noting that excerpts were already printed and the book widely in circulation, he stated that: the the damage is done. There is no restoring the status quo.

The author nonetheless remains in trouble. Thejudge concluded that: Bolton has gambled with the national security of the United States by potentially exposing secrets. The government could still sue Bolton for not following the prepublication review process that applies to everyone who signs a secrecy agreement.

The prepublication review system was created following awave of whistleblowingthat exposed government abuse in the 1970s. The most famous example was Daniel Ellsbergs revelation of thePentagon Papers, a top secret military report on US involvement in the Vietnam War. Other whistleblowers includingFrank Snepp, Philip Agee, and Victor Marchettiwrote books detailing their experiences working for the Central Intelligence Agency. Not all of them revealed secrets but the fact they were speaking publicly raised concerns.

In response, the US government created a process requiring all current and former national security officials to submit material intended for a public audience before it could be published. This vetting process was intended to protect classified information.

John Bolton. Photo: Reuters/Jonathan Ernst/File Photo

The system has beenriddled with problems from the beginning, including lengthy review processes and arbitrary decision-making around what can and cannot be published. The issues have afflicted both works that criticise and support US foreign relations. In 2019 the Knight First Amendment Institute and the American Civil Liberties Unionfiled a lawsuitchallenging the system as dysfunctional and placing too much power in the hands of reviewers.

Authors who refuse to submit work for prepublication review are liable to be prosecuted. After publishing a 1977 book without approval, Snepp wasordered by the Supreme Courtto forfeit all royalties to his former employer, the CIA. The court ruled that the book had caused irreparable harm to national security.

Boltonslegal team claimshe did not violate the secrecy agreement because he had satisfied all issues raised by the National Security Councils senior director for prepublication review.

But the nature of the secrecy system and the review process is nebulous and allows the executive branch significant room for manoeuvre. WhileTrumps assertionthat every conversation with me [is] highly classified is a stretch, the suggestion that Bolton broke the law and must pay a very big price for this, as others have before him is consistent with the broad authority afforded to presidents on national security matters.

The White House recently opened asecond prepublication review processof Boltons book. The outcome of this latest review, which will be overseen by Judge Lambert, will determine his fate. If the courts follow historical precedent and rule in favour of the government, like Snepp before him, Bolton stands to forfeit his reported $2 million advance, and could face criminal liability that includes the possibility of a jail sentence.

Speech rights

While the author remains in legal peril, Boltons revelations continue to receive widespread attention. That the press can report national security secrets is rooted in another seminal whistleblowing case, Ellsbergs release of the Pentagon Papers to the New York Times and other outlets. TheSupreme Court ruledthat prior restraint of the press was unconstitutional.

Daniel Ellsberg. Photo: Reuters

The First Amendment of the US constitution protects freedom of speech and freedom of the press from government interference. But when it comes to discussing national security information, thepress enjoys greater protection than government employees.

In hyper-partisan times, it can be hard to look beyond the immediate political stakes. Yet the issues raised by this episode predate Bolton and Trump and are likely to persist long after them.

This article first appeared onThe Conversation.Read the original here.

Here is the original post:
Bolton's Book the Latest in White House Disclosures to Test US First Amendment - The Wire

December 15, 1791, the First Amendment was adopted as one of the 10 amendments that constitute the Bill of Rights. It states, 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.

Our founding fathers created the First Amendment in response to two centuries of state-sponsored religious conflict and oppression in America, and with the keen understanding of the religious persecution in European nations resulting in official state religions and religious wars that were the norm.

Their understanding of the past is really all our founding fathers had to create a basic set of freedoms for each of us to have in our back pocket. Freedoms, we all use each and every day.

Although evolution and progress of a nation and its people is understood and expected, they could never have foreseen the internet. Or Social Media for that matter.

Since its inception in, social media has been at the core of Free Speech controversy. It has become common place for some users to berate, threaten, pick on, bully and/or share false information.

Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law and true threats.

The Communications Decency Act of 1996 provides immunity from liability for providers and users of an interactive computer service that publishes information provided by third party users. Basically, social media platforms such as Facebook, Twitter and Instagram have absolutely zero responsibility for what citizens share across them and how they may hurt another human being.

Fast forward to May 28, 2020. President Trump signed an executive order aimed at social media companies after Twitter called two of his tweets potentially misleading. The executive order puts to test the level of authority the White House has when it comes to Free Speech.

This also brings up the question, How much free speech should social media be allowed? And, should social media platforms be held responsible for content submitted by users? Its not as black and white as some may think.

The First Amendment, vague in its explanation, is so in order to allow growth. But when that growth alters the flow of accurate information, or the interpretation is changed, we owe it to our nation to get it right.

For all the good social media brings to us, it is here that it lets us all down daily. We dont know who to trust with factual information. We become confused with who is sharing factual information. So we end up sharing and spreading information we believe to be true whether is or is not, ultimately exercising our own right to Freedom of Speech.

Is it right to censor social media platforms to help decrease the flow of false information? Is it our right under the First Amendment to share information whether accurate or not? Is it OK that social media platforms have the right to censor its users?

The quote below was written by the 28th President of the United States, Woodrow Wilson, in 1917. No matter what your opinion of President Wilson is, when reading it, it almost feels as though it is describing our nation today.

I can imagine no greater disservice to the country than to establish a system of censorship that would deny to the people of a free republic like our own their indisputable right to criticize their own public officials. While exercising the great powers of the office I hold, I would regret in a crisis like the one through which we are now passing to lose the benefit of patriotic and intelligent criticism.

Read more here:
RICH MACKE: Social media and the First Amendment - Scottsbluff Star Herald

Note from Scott Hollifield: Please enjoy this previously published column from 2004 while I am away from the office.

While the First Amendment to the U.S. Constitution guarantees us all the opportunity to speak in tongues at the Rocky Creek Church of the New Revival and Second Coming if we so choose, it does not give any of us the right to own a goat named Sparky.

Im sorry, thats just the way it is.

A survey by the McCormick Tribune Freedom Museum found that people are all mixed up about the First Amendment, which gives us freedom of speech, freedom of religion, freedom of the press, the right to assemble and the right to petition for redress of grievances.

A telephone survey of 1,000 people found that more respondents knew Bart as a character on The Simpsons (61%), Simon as a judge on American Idol (49%) and Federal Express as the one to call when it absolutely, positively has to be there overnight (61%) than were aware that freedom of the press is included in the First Amendment (11%).

And many believe the First Amendment is much more expansive than it really is. Twenty-one percent said it guarantees each of us the right to own and raise pets (like a goat named Sparky), while 17% said the First Amendment affords us the right to drive a car.

We all need a civics lesson, but not one of those boring civics lessons where we lose interest and stare out the window at the girls track team and flunk the final and fail to get into a really good college and end up working at a newspaper and writing about goats, but an exciting civics lesson that applies the First Amendment to a real-life situation we can all understand.

Here we go. Lets say your pet goat Sparky sneaks next door and tears the trailer hitch off your cousin Eugenes Pontiac. Theres already bad blood between the two of you due to a property line dispute and Eugene, being the hothead that he is, says, Ill tell you what Im going to run for mayor and when I win Im going to pass me an ordinance outlawing goats.

Ill tell everybody I know not to vote for a goat-hating hothead! you exclaim. (Freedom of speech)

Frankly, though, youre not worried about Eugene becoming mayor since hes about as popular around town as a Danish cartoonist at an Islamic picnic. (Freedom of religion)

Then, Eugenes opponent is spotted in the background of a Kid Rock sex tape and withdraws from the race, his political career and marriage both in shambles.

GOAT-HATING HOTHEAD WINS MAYORS RACE reads the newspaper headline. (Freedom of the press)

Fearing the town will soon fall into anarchy due to Eugenes utter lack of leadership skills and functional illiteracy, you quickly tack these notices to telephone poles across the community: If you would like to help me get Eugene thrown out of office, meet me at the fellowship hall of the Rocky Creek Church of the New Revival and Second Coming on Tuesday at 8 p.m. (Freedom of speech, freedom of assembly, freedom of religion)

That night, you address the crowd.

If yall thats handling the snakes back there will give me your attention for a minute. Now, we all know a goat-hating hothead like Eugene shouldnt be the mayor. Lets circulate this petition that calls for his immediate removal from office due to his ineptness and goat bias. (Freedom of speech, freedom to petition for redress of grievances)

PETITION SUCCESSFUL GOAT-HATING HOTHEAD OUSTED, reads the newspaper headline. (Freedom of press)

So, heres what weve learned today: The First Amendment is good. It has nothing to do with owning and raising pets. And no one should ever elect a goat-hating hothead mayor.

Read more:
Hollifield: Another look at the First Amendment - Bristol Herald Courier

Protests of racial injustice and police brutality continued this weekend in Charlotte. As usual, Charlotte Mecklenburg police were on the scene, but they were operating under a temporary restraining order. A superior court judge on Friday signed the order halting the department's use of riot control agents like tear gas and flash bang grenades against peaceful protesters. That was a response to a lawsuit filed by groups including the local chapter of the NAACP, the ACLU of North Carolina and Charlotte Uprising. Alex Heroy helped to argue their case in court. He joins Morning Edition host Lisa Worf.

Worf: Good morning, Mr. Heroy.

Heroy: Good morning.

Worf: So how much does this restraining order change CMPD tactics? After all, CMPD says it has only used riot control agents like tear gas once people began throwing rocks and frozen water bottles at officers.

Heroy: I think it requires stricter adherence to their policy and puts limits on the policies. There's CMPD directives are, they're not always to set specific on the use of force continuum and sort of what's allowed and what's not allowed. So this is put in place. We filed a lawsuit to really protect the peaceful protesters that have been victims of, what we thought of as sort of a gross assault on their First Amendment rights, at least in particular on June 2.

Worf: So when you say it puts limits on some of their tactics, are you saying because it adds a certain level of scrutiny that wasn't there before, even though CMPD says this doesn't change that much?

Heroy: Yes. Yes. I mean, so on June 2, when you had three to four hundred protesters who are all largely acting very peaceful, marching with their hands up. No real issues that we've seen in the videos. And then the police boxed them in and gassed them and shot at them. That's not OK. That's across the line. That's way over the line. Even if CMPD says that there were some outliers throwing a water bottle or even a rock would justify that kind of use of force. And it doesn't justify that use of force indiscriminately against a large crowd of peaceful protesters exercising their First Amendment rights. That's just not allowed. It's not OK. And we had to put a stop to it and not let it, risk it happening again. That's what we had to move for this emergency restraining order to make sure it doesn't happen again.

Worf: No CMPD Deputy Chief Jeff Estes said Friday that the one difference it makes for the department is that it prohibits officers from using riot control agents like tear gas again against people who are destroying property. So officers would have to intervene physically to remove those people. Do you have concerns this could further escalate a situation?

Heroy: Well, I don't think this CMPD's communication was an accurate summary of the order. The restraining order restricts actions against peaceful protesters. If there is an individual who is causing a destruction during a peaceful protest, CMPD is supposed to go in and remove that that individual, if they're destroying property there's a use of force continuum that CMPD is allowed to use. It is not a, this is not a, an order that allows or forces CMPD to just simply let people go commit criminal activity. That is not it at all. It is a restriction on what use of force can be used against peaceful protesters gathering.

Worf: Now, this is a temporary restraining order until the lawsuit can be heard. What does the lawsuit itself seek?

Heroy: So the lawsuit itself seeks a permanent restraining order that the same thing. We're also asking for what's called a declaratory judgment against which would find that the dispersal order allegedly announced on June 2 was ineffective and did not comply with CMPD policy.

Worf: And beyond the use of tear gas and other riot control agents, how did the groups you represent want to change police tactics when it comes to handling protests?

Heroy: I say that, you know, there's a lot of groups that are plaintiffs in the lawsuitm it's a lot of different opinions. So I don't want to speak for the entire group because it's a range with a lot of things that need to be changed with police. But I think the overarching issue is the respect and lack of respect and improving that, greatly improving that and community relations with the police.

Worf: That's Alex Heroy, who helped argue the case in court on behalf of groups, including the local chapter of the NAACP, the ACLU of North Carolina and Charlotte Uprising.

Read more here:
Lawyer On How Restraining Order On CMPD Will Protect Protesters' First Amendments Rights - WFAE

Well folks another opinion day has come and gone at the US Supreme Court with no ruling yet on the bigBarr v. AAPCchallenge to the TCPA.

Traditionally the Supreme Court clears its April docket with rulings by the end of June. With a set Monday calendar to release opinions and a likely additional release date this Thursday, that leaves only TWO days left (the 25th and the 29th) for the Supremes to enter their final vote on the fate of the TCPA. If the traditional calendar sticks that is

Truth is, with two (traditional) opinion dates left the Supreme Court is still sitting on fourteen (14!) unissued rulings so this may end up slipping into July (although I certainly hope not since I have a big webinar to discuss the ruling set up next Tuesday, June 30, 2020. Ha!) Notably, the Supremes seem to be issuing opinions in rough order of argument, which means there are still six cases ahead of AAPC on the docket. Obviously, however, the Supreme Court canand willissue opinions in any order as they are finalized so this isnt a first come first served (TCPA) world.

But since we are all waiting with baited breath, lets go through a few possible outcomes here. As a refresher, the Supreme Court is reviewing the TCPA inAAPCon a challenge by a political consulting organization arguing that the TCPAs government-backed debt exemption is unconstitutional. There are a number of permutations to the challengeas was made clear at oral argumentand it is not entirely clear whether the Supremes will scrutinize only the exemption or the restriction itself.

Since TCPAWorlddwellers are becoming constitutional law scholars, lets also recall a couple basics of First Amendment jurisprudence:

While there is no doubt that a content specific statute must meet strict scrutinya very high test it is unclear whether that scrutiny is properly applied to the exemption in this case or to the restriction itself. The briefing of the parties below focused solely on the exemption but in the briefing on appeal to SCOTUS and in oral argument there has been noticeable creep toward arguments (for and against) applying scrutiny to the TCPAs restrictionsashift that may or may not be entirely attributable to my loud-mouthery.

So with all of this recalled, here are the possible outcomes in no particular order:

Why this might happen:AsProfessor Epps explained inUnprecedented14the doctrine of content neutrality has expanded greatly over the past few decades, arguably spiking to exhaustion inReed.It is possible that the Supreme Court usesAAPCas a vehicle to roll back (perhaps significantly) on the application of strict scrutiny in First Amendment challenges and re-focuses its application solely to instances of viewpoint specificity. (Translation: the Supreme Court might use the TCPA as an opportunity to give Congress more power to regulate speech in a neutral manner.)

Why it shouldnt/wonthappen:I mean, the TCPA is content-specific under existing case law so the Supreme Court would really have to depart fromReedin a clear and decisive way to get here. And judging by thequestions of the Justices at oral argument, this just isnt going to happen.

Why this might happen:This would be a pretty weird outcome because it would require the Supreme Court to find collecting government-backed debt is a compelling governmental interest, which is tacky to say the least. Still some district courts have reached this conclusion so it is not impossible.

Why it shouldnt/wonthappen:The Government did not even advance this argument and none of the Justices seemed slightly interested in it at oral argument. This seems like the most unlikely outcome.

Why this might happen:Really this is what should happen. The focus here would be on the restrictioni.e. the TCPAs ban on the use of ATDS/pre-recorded voice messages to call cell phonesand not the exemptioni.e. the ability of government-debt collectors to make calls. This makes more analytic sense since the First Amendment prohibits restrictions on speech not permissions (is that a word?) on speech. Plus the TCPA really should survive even strict scrutiny if the TCPAs ATDS restriction is read narrowly. So this approach allows for First Amendment doctrine to be logically applied AND for the TCPA to be upheld. I mean, feels like a win/win (since presumptively the Supreme Court does not want to strike down the popular statute.)

Why this shouldnt/wont happen:No one else thought of it but me? This actually seems to be the right answer here, but it simply wasnt briefed or argued and none of the Justices asked any questions about it from the bench. Right or wrong, the focus inAAPCseems to be primarily on applying scrutiny to the exemption and not the restriction and the assumption seems to befor whatever reasonthat the level of scrutiny to be applied to the restriction would be lower intermediate scrutiny because the content-specificity arises in the exemption and not the restriction itself. (Translation: everyone is elevating form over substance for some reason and it doesnt seem like thats going to change now.)

Why this might happen:Well, this is what the two courts of appeals below did so why wouldnt the Supreme court just do the same thing? This seems to be the odds on favorite for most observers but I think it is relatively unlikely (as I explain below). But the ruling here would come down to Congressional intent the TCPA includes a severance provision suggesting that Congress intended the exemption to be cast aside if it was unconstitutional. So the Court should do what Congress intended, right? But really this is theeasiestway for the Supreme Court to uphold the popular TCPA it is effectively a punt.

Why this shouldnt/wont happen:There are a bunch of problems with it. First, it applies scrutiny to the exemption rather than the restriction which is just flat the wrong analysis in a First Amendment case as opposed for instanceto an Equal Protection challenge. Second, it would result in the Supreme Court expanding a restriction to cover more speech, in a manner that it has never done before. Third, it would impact the substantive speech rights of non-parties to the case without notice or an opportunity to be heard. Fourth, it would afford a remedy to the Plaintiff that it did not seek and lacked standing to seek. Fifth, it would deny any remedy to a successful Plaintiff challenging a statute on First Amendment grounds. Sixth, there is nothing wrong with the exemption standing aloneagainst the First Amendment does not ban permissions on speech it bans restrictions so striking it makes no logical sense. Setting all of that aside, it just doesnt make sense that the Supremes would grant cert. on this issue when there was no split of authority below. There was areasoncert. was granted here and it wasnt just to rubber stamp what the appellate courts did.

Why this might happen:If the Supreme Court applies scrutiny to the exemption this is the result that makes the most doctrinal sense. The restriction is being applied unevenly by virtue of the exemption. Striking the exemption works violence to logic and law (see above) so there is really no other coursethe restriction must fall.

Why this shouldnt/wont happen:The TCPA is a popular statute and the Supreme Court doesnt want to allow a bunch of robocalls. There really is no doctrinal hold up here it is the right thing to do, assuming scrutiny is applied to the exemption that is.

Why this might happen:This is likely for the same reasons as 5. given thatno onehas raised the fact that certain provisions in the TCPA are not effected by the government-backed debt exemption and the issues of content-specificity it creates. Plus the entire dang statute is riddled with content specificity issues the FCC has created a number of content-specific exemptions and provisions like the DNC restrictions on marketingplainlylimit speech based on the content of the message.

Why this shouldnt/wont happen:Here is where the doctrine of severance properly comes into play. Plaintiffs below did not challenge any other content-specific provision of the TCPA other than the government-backed debt exemption. So only those restrictions of the TCPA impacted by that exemption should be struck down and severed from the statute. If folks have problems with he rest of the statute theyll just have to bring their own Supreme Court appeal. Still though, it is a little odd that this was never briefed or argued leading to a surprisingly high (15%) chance that the entire statute is gone.

Why this might happen:None of the other results are all that satisfying. Perhaps we see a carve out for political speech. Perhaps we see a remand for further fact-finding on the impact of robocalls. Perhaps there is further information needed on government-backed debt. Perhaps Justice Breyers approach of all law is speech and whats the First Amendment anyway? (not a real quote) is accepted and the TCPA brings down the freedom of speech entirely. Who knows.

Why this wont happen:Not sure why it would. The Supreme Court generally doesnt go off the rails where it doesnt have to and there was very little discussion of middle ground approaches at oral argument. Not much reason to suspect a screwball here, but you never know.

So adding it all up:

Oh and in case you missed our great coverageor just want to re-live anything our LIVE feeds of the oral argument arehereandhere. Our definitive analysis of the oralargument is here.

Stay tuned.

Read more:
What the US Supreme Court Might Do With the TCPA - The National Law Review