Mediaboss Marketing

(The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.)

Austin Sarat, Amherst College

(THE CONVERSATION) What happens to the rule of law when even the top law enforcement official in the land refuses to obey it?

Thats the question raised in a stinging rebuke of Attorney General William Barr and his Justice Department that came from an unusual source earlier this year: Federal Appeals Court Judge Frank Easterbrook.

Easterbrook excoriated Barr and the department for defying an order issued by his court.

The order in question concerned the case of Jorge Baez-Sanchez, a man living in the U.S. illegally, who was convicted of aggravated battery of a police officer and scheduled to be deported. Easterbrook quoted a letter from Attorney General Barr to the Justice Departments Board of Immigration Appeals saying that the Seventh Circuit decision stopping that deportation was incorrect and need not be followed.

Responding to Barrs assertion, Easterbrook insisted that while executive branch officials are free to maintain that our decision is mistaken until the court reverses itself the Executive Branch must honor that decision. Easterbrook said the Constitution gives courts the right to make conclusive decisions, which are not subject to disapproval or revision by another branch of government.

As someone who has studied what happens when public officials violate the law, I findBarrs defiance reminiscent of other times in American history when powerful figures challenged the authority of the courts. Such challenges risk undermining the authority of the Constitution in the eyes of everyday Americans.

Challenging courts

The courts authority to interpret the law is derived from an 1803 Supreme Court decision, Marbury v. Madison, not from the Constitution itself. William Marbury, who had been appointed a justice of the peace by outgoing President John Adams, was denied the official commission for that office by James Madison, secretary of state in the incoming Jefferson administration. Marbury asked the Supreme Court to order Madison to deliver his commission. The court held that the Judiciary Act of 1789, which Marbury said gave it the power to do so, violated the Constitution. As a result, it could not provide the relief Marbury sought.

And, since that decision, from time to time political leaders have questioned the courts authority.

President Andrew Jackson mounted one of the most important of those challenges when he refused to enforce an 1832 Supreme Court ruling that the states could not regulate Native American land.

After that ruling, Jackson took a swipe at, the courts chief justice: John Marshall has made his decision, now let him enforce it.

Moreover, that same year, Jackson vetoed an act of Congress granting a charter for the Second Bank of the United States on the grounds that the bank was unconstitutional. He did so despite an 1819 Supreme Court decision affirming its constitutionality.

In his veto message, Jackson invoked the separation of powers and said, The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the president is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

Jacksons effort to stop the National Bank ultimately prevailed when it was replaced by an independent federal treasury system.

Blocking Brown

A little more than a century later, in the immediate aftermath of the 1954 landmark school desegregation ruling, Brown v. Board of Education, Southern political leaders, including members of Congress, followed Jacksons example.

In 1956 they issued a Southern Manifesto, which called Brown a clear abuse of judicial power. The manifesto commended states for resisting forced integration of schools and claimed states had the right to defy federal court orders that they regarded as incorrect.

One of the most blatant examples of such resistance occurred in Little Rock, Arkansas, in 1957. Responding to a federal district court which ordered the immediate integration of the schools, Governor Orval Faubus called out the National Guard to stop black children from attending Central High School.

When lawyers for those black children sought help from the United States Supreme Court, the court anticipating Easterbrooks response to Barr rebuked the Arkansas governor and reaffirmed the desegregation order.

Justice Felix Frankfurter wrote that Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law.

And, despite his own reservations about the Brown decision, President Dwight Eisenhower sent federal troops to Little Rock to enforce the court order.

Resisting rights

In 2015, a deeply divided Supreme Court ruled that the Constitution protected the right of same-sex couples to marry.

Opposition to the decision came quickly. Some local officials announced that, because same-sex unions violated their religious beliefs, they would not issue marriage licenses to gay and lesbian couples.

One of the resisters, Katie Lang, county clerk of Hood County, Texas, said that the Supreme Court had fabricated a new constitutional right which could not diminish, overrule, or call into question the First Amendment rights to free exercise of religion that formed the first freedom in the Bill of Rights in 1791.

She was supported by Texas Attorney General Ken Paxton, who told county clerks and judges that they did not have to issue same-sex marriage licenses or conduct wedding ceremonies if they have religious objections to doing so.

Courting contempt

Separation of powers, states rights and religious freedom each have been invoked as a justification for official noncompliance with court orders. Attorney General Barr adds his broad view of executive power to that list of reasons.

Yet no matter what the reason, any time government officials defy the courts, they undermine the Constitutions authority and send a powerful message to citizens. Today many Americans seem ready to heed that message, with a quarter of the respondents to national surveys now saying that a president should be able to disobey court decisions with which he disagrees.

While the rule of law survived Jackson, massive resistance in the South, and defiance of the Supreme Courts gay marriage decision, there is something particularly perilous when the attorney general defies the courts. As a 1980 opinion of the departments Office of Legal Counsel noted, it is his responsibility to defend and enforce both the Acts of Congress and the Constitution.

That danger is compounded at a time when the president repeatedly expresses his view that judges are really nothing more than partisans in black robes and derides them and their decisions.

Supreme Court Justice Louis Brandeis correctly observed almost a century ago that, In a government of laws, the existence of the government will be imperiled if it fails to observe the law scrupulously. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

[Deep knowledge, daily. Sign up for The Conversations newsletter.]

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/barr-isnt-the-first-powerful-official-to-defy-the-courts-and-risk-legitimizing-contempt-for-the-law-132499.

See the original post:
Barr isn't the first powerful official to defy the courts and risk legitimizing contempt for the law - Shelton Herald

There are few things more intimate than a personalized license plate. Yet California's Department of Motor Vehicles (DMV) rejects tens of thousands of applications for individualized plate slogans each year for being offensive to "good taste and decency."

Yesterday, the Pacific Legal Foundation (PLF), a public interest law firm, filed a lawsuit against state DMV director Steve Gordon alleging his department's license plate policy violates the First Amendment's free speech protections. The DMV, they are arguing, is using a dangerously expansive definition of "government speech" to unconstitutionally censor motorists' expression.

"Our lawsuit is about vague laws that give government bureaucrats unbridled discretion to regulate speech, and that inevitably leads to arbitrary results," says Wen Fa, an attorney with PLF. "It's basically at the DMV's whims what might be offensive and what isn't."

In 2018, the state DMV rejected 30,000 of the roughly 249,000 personal plate applications they received. PLF is representing five people who've similarly had their plate applications rejected.

That includes Paul Ogilvie, an army veteran, who wanted to combine his military nickname 'OG' with childhood nickname 'Woolf' to make an 'OGWOOLF' license plate. The DMV rejected this for supposedly being offensive.

They did the same thing to Amrit Kohli, a gay computer programmer and musician, whose application for a license plate saying "QUEER"a reference to Kohli's own identitywas rejected for being "insulting, degrading, or expressing contempt for a specific group or person," according to the PLF complaint.

James Blair is also suing the DMV after being told that his proposed "SLAAYRR" platea reference to the metal band Slayerwas "threatening, aggressive, or hostile" and therefore violated the department's prohibition on offensive plates.

In addition, PLF is representing English pub owner Paul Crawford, whose proposed "BO11LUX" license plate was turned down for being too sexual, and motorcycle enthusiast Andrea Campanile for a rejected "DUK N A" license plate (a reference to Ducati motorcycles and her first name).

This is not the first time California's personal plate regulations have come under attack. Last year PLF sued the department on behalf of university professor Jon Kotler who'd likewise had his application for a personalized plate rejected.

The state DMV argued in that case that because it was the one issuing the plates, it was the government speaking, and not the private citizen requesting the plates. Therefore, it was up to the discretion of the department which messages it would allow.

A judge for the U.S. District Court for the Central District of California rejected this argument in denying a government motion to dismiss the case, writing that it "it strains believability to argue thatviewers perceive the government as speaking through personalized vanity plates."

That case was resolved in January 2020 when the DMV decided to issue Kotler the initially rejected plate. However, the department has kept its regulations about offensive plates on the books, prompting PLF to file a second lawsuit.

"The government speech doctrine has very wide implications for free speech in general. The government is increasingly relying on that doctrine to say individuals have no free speech rights at all, and therefore the government can ban speech it finds offensive or hateful," says Fa. "If the DMV's logic were correct, then the government could censor offensive speech in public parks, which is also government property."

Read more:
Do You Have a First Amendment Right to a Slayer-Themed License Plate? - Reason

So now President Donald Trumps re-election campaign is filing SLAPP suits against news organizations that is, libel suits with no legal merit whose goal is to intimidate rather than to expose the truth.

The lawsuits have targeted The New York Times, The Washington Post and CNN, all of which have the resources to defend themselves. But the Trump campaigns tactics raise a larger question: Will these suits embolden others to weaponize the courts against media outlets that lack the financial wherewithal to fight back against deep-pocketed opponents?

SLAPP stands for strategic lawsuits against public participation. A typical example might involve a developer whos seeking to build a controversial strip mall and who files a frivolous libel suit against neighborhood critics or a small local newspaper in order to silence them. According to the Reporters Committee for Freedom of the Press, 31 states, including Massachusetts, have anti-SLAPP laws aimed at discouraging such suits. There is no federal anti-SLAPP law.

For a president's political operation to sue news organizations for libel is virtually unprecedented but not surprising coming from Trump, who said during the 2016 campaign that he wanted to open up our libel laws so that it would be easier for public figures to collect damages. The lawsuits involve four opinion pieces all of which, as Jacob Gershman notes in The Wall Street Journal, contain passages implying Donald Trump sought or welcomed Russia's intervention in the 2016 presidential election or the 2020 race.

The articles in question were written by Max Frankel, former executive editor of the Times; two Post opinion journalists, Greg Sargent and Paul Waldman; and CNN contributor Larry Noble, a former general counsel at the Federal Election Commission.

Without going into too much detail, the pieces all assert that the Trump campaign had sought help from the Russians during the 2016 campaign and that it appeared to be willing to do so again. (Noble links to an ABC News interview with Trump in which the president all but invited foreign interference in 2020.) Among other things, the Trump campaign cites the Mueller Report as evidence that there was no collusion between the campaign and Russia.

Yet the Frankel commentary was published several weeks before the mostly unredacted version of the Mueller Report was released. Moreover, U.S. District Judge Reggie Walton last week lambasted Attorney General William Barr for mischaracterizing the Mueller Report in his initial summary, writing that Barr had sought to obscure ties between the Trump campaign and Russia as well as multiple episodes of possible obstruction of justice. You could almost say that it sounds like collusion.

As for 2020, the Times recently reported that Russia is attempting once again to help Trump (as well as Bernie Sanders, according to the Post). Trumps indifference and even outright hostility to efforts aimed at curbing that influence could certainly be characterized as welcoming Russian interference.

All this is by way of arguing that the lawsuits are publicity stunts aimed at stirring up the Trumpist base. Not only are they outrageous in and of themselves, but they could also pose a threat to the First Amendment.

Im not a lawyer, but the constitutional principles at issue are well understood. First, there is the fact that the articles in question are opinion pieces. Opinion is protected by the First Amendment. As the Supreme Court put it in Gertz v. Robert Welch (1974), there is no such thing as a false idea. Of course, if you make a defamatory statement about someone that could be proven false, merely labeling it as opinion is no protection, as the court ruled in Milkovich v. Lorain Journal (1990). But the facts laid out in the Mueller Report, as well the Trump interview with ABC News cited by Noble, cut against the Trump campaign's legal argument.

More important, the three news organizations are protected by the 1964 precedent set in New York Times v. Sullivan, in which the court found that public officials would have to prove actual malice in order to win a libel suit; that standard was later extended to public figures as well. Because of the Times decision, the Trump campaign would have to show that the media outlets published the four pieces in question despite knowing or suspecting they were false. (As I wrote last year, Justice Clarence Thomas has said that he would like to weaken the Times v. Sullivan protections. But of course.)

Not only would the Trump campaign find it virtually impossible to prove that the Times, the Post and CNN knew what they were publishing was false there are mountains of evidence to suggest that what they published was true.

In other words, these are the presidential equivalent of SLAPP suits, designed solely to harass and intimidate.

So what is the solution? Judges are strongly encouraged to throw out frivolous libel suits at the earliest possible stage because of the chilling effect that they have on news organizations and others seeking to exercise their First Amendment rights. That is exactly what should happen with the Trump campaigns suits.

More broadly, the suits should serve as a wake-up call. The libel laws are intended as a way for people who have been harmed by false, defamatory statements to obtain compensation. But libel can also be used to silence critics or, in the case of the Times, the Post and CNN to discredit them in the eyes of Trumps supporters.

Not only do the courts need to throw out these suits as quickly as possible; they also must take steps to ensure that the Trump campaigns actions dont trickle down to the state and local levels, which would encourage the widespread abuse of the courts for partisan political advantage.

One possible answer: Passing anti-SLAPP laws in places that dont have them, including the federal courts. And, where necessary, strengthening them to make sure they have real teeth.

WGBH News contributor Dan Kennedys blog, Media Nation, is online at dankennedy.net.

See the original post here:
How The Trump Campaign Is Weaponizing Libel And Threatening The First Amendment - wgbh.org

The First Amendment is the foundation of all of our freedoms. That is why it stands atop our Bill of Rights, which spells out strict limits on the governments power to crush individuals and deny them their liberty.

Under the First Amendment, Congress and, by extension, state legislatures shall make no law abridging freedom of the press.

Freedom of the press has been of incalculable value to the people of the United States. It has brought to light corruption and other problems that powerful officials would rather have suppressed. It has informed the American people about the issues so that they may govern themselves. It has righted injustice and championed justice.

Given the hunger for power reflected in the gnawing desire of some politicians to micromanage peoples lives the First Amendment provides an essential check against tyranny. Many politicians would like nothing better than to shut up the public and have their way. Certainly, this is how authoritarian regimes function.

Members of the Rhode Island legislature should understand all that. If they do not, it seems clear that our civics education is even worse than advertised.

Last week, we learned that four senators, all Democrats Sandra Cano, of Pawtucket; Elizabeth Crowley, of Central Falls; Ana Quezada, of Providence; and Harold Metts, of Providence sponsored legislation that on its face was an assault on the First Amendment.

It sought to dictate to the press what must be reported.

As the bill ludicrously put it: The state has a compelling interest to compel the press to promote the objective truth for the sake of the viability of democracy and for the safety, health, and welfare of our communities and in keeping with the spirit of the Due Process Clause of the Fourteenth Amendment and to stop the press from serving as a slander machine.

Needless to say, such an approach would be blatantly unconstitutional. As Steven Brown, executive director of the Rhode Island chapter of the ACLU, noted, These types of efforts to control the press have absolutely no place in a democratic society.

Sponsoring an assault on the peoples most basic freedoms for whatever reason is a black eye to those members and should be of concern to the voters in their districts.

Fortunately, even the sponsors backed off late last week.

According to Senate spokesman Greg Pare, Senator Cano sponsored the Senate legislation as a favor to Rep. Grace Diaz, D-Providence. Ms. Diaz said she withdrew her House bill after a colleague told her, you are setting yourself up for a headache.

Senator Cano then withdrew her bill and vowed in a tweet, My family came to this country for the freedoms of the 1st Amendment & I will do better in defending it!

It is, of course, the responsibility of the news media to strive to be fair and balanced.

But, for obvious reasons, you dont want politicians and bureaucrats dictating whats fair and what isnt in news coverage. And, under our glorious First Amendment, they may not.

Read the original:
Editorial: Preserving the First Amendment - Opinion - The Providence Journal

Two years ago, the U.S. Supreme Court ruled that government workers may not be mandated to pay union dues as a condition of employment. The ruling was a victory for free speech and free association.

Now, in a lawsuit out of Maine, the justices have another opportunity to rein in the power of labor organizations to force workers to accept their representation. The case could have major ramifications for many states, including Nevada.

The legal action brought by Jonathan Reisman, an associate professor of economics in the University of Maine system involves the common practice of governments granting public-sector unions exclusive workplace bargaining rights. Mr. Reisman argues that this runs afoul of the Constitution because it prevents him and other like-minded individuals from speaking for themselves in contract negotiations and forces him to associate with an organization that acts contrary to his beliefs.

If the state cannot compel public employees to financially support union advocacy how can states require these same public employees to accept representation from unions that many of them have chosen not to join? an attorney for Mr. Reisman asked.

Mr. Reisman, according to news accounts, was formerly a union officer, but came to object to many of the policy positions for which his labor group advocated. A federal appeals court rejected his arguments, but the Supreme Court is now considering whether to accept the case.

The matter is ripe for review. As Ilya Shapiro, Trevor Burris and Michael Collins wrote last month for the Cato Institute, arrangements involving exclusive representation restrict a number of individual freedoms.

Exclusive representation simply cant be justified by any state interest, let alone a compelling one, that would validate the serious impingements it imposes on dissenting nonmembers associational rights, they argue. Put plainly there is no labor law exception to the First Amendment, and labor laws that violate constitutional principles must be held to heightened judicial scrutiny.

Indeed, union complaints about free riders nonmembers who dont pay dues yet nevertheless enjoy the wages and protections negotiated during union contract talks are legitimate only because of exclusive representation powers that many states have granted public-sector labor groups. There are no free riders if independent workers are able to represent themselves as they see fit.

Gov. Steve Sisolak last year signed legislation allowing state of Nevada workers to bargain collectively. It will eventually bust the budget, but it also grants exclusive representation rights to labor. Lets hope the Supreme Court recognizes the constitutional difficulties inherent in such a provision.

View original post here:
EDITORIAL: No labor law exception to the First Amendment - Las Vegas Review-Journal