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Police confront 'First Amendment auditors' - Post Register
The Modern Law Library
Posted August 3, 2017, 11:55 am CDT
By Lee Rawles
Legendary civil rights attorney Floyd Abrams joins the ABA Journals Lee Rawles to discuss his book The Soul of the First Amendment in this episode of the Modern Law Library. Abrams shares how First Amendment jurisprudence changed over time, and what dangers he sees ahead for free speech in the era of fake news and a presidential administration that is hostile to the press.
Floyd Abrams
Floyd Abrams is senior counsel at Cahill Gordon & Reindel. Abrams has a national trial and appellate practice and extensive experience in high-visibility matters, often involving First Amendment, securities litigation, intellectual property, public policy and regulatory issues. He has argued frequently in front of the U.S. Supreme Court, most recently on behalf of Sen. Mitch McConnell as amicus curiae in Citizens United v. Federal Election Commission.
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First Amendment defender Floyd Abrams warns of threats to free speech in 'fake news' era (podcast) - ABA Journal
Certainly subsequent White House news has pushed Donald TrumpDonald TrumpBorder patrol was ordered not to engage with congressmen, lawyers during travel ban Trump says he never called White House 'a dump' Trump to sign memo on Chinese intel property trade practices Friday: report MORE Jr.s June 2016 meeting with a Russian lawyer allegedly pedaling Hillary ClintonHillary Rodham ClintonCongress wants Trump Jr. phone records related to Russia meeting Zuckerberg hires top Clinton pollster amid rumors of presidential run: report Democrats new 'Better Deal' comes up short for people of color MORE dirt to the sidelines. But as more details emerge, even Trump Jr.s brother-in-law, Jared Kushner, has tried to distance himself from the meeting in a statement before his recent closed-door testimony to the Senate intelligence committee.
Some have dubbed the Russia meeting a category 5 hurricaneand many have called for a federal prosecution of the Presidents son. Still, the debate has ignored the First Amendment, a constitutional bulwark that may save the younger Trump.
The right to free speech shields the receipt and dissemination of information. Indeed, truthful information about candidates for high office lies at the heart of constitutional protection. In this case, there is no suggestion that Trump Jr. thought the Russians would feed him falsehoods about Democratic presidential hopeful Clinton. He wanted to learn and perhaps disseminate facts damaging to his fathers opponent.
The First Amendment exists in part to serve this very function the disclosure of truthful information about the people seeking to govern us. As James Madison put it, a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both.
What makes this situation complicated is that the Russian government might have obtained the information by breaking hacking or espionage laws in the first place.
Trump Jr. says Russian attorney Natalia Veselnitskaya did not actually have any meaningful information in the June 9, 2016 meeting. But for the sake of argument, lets assume the worst about Trump Jr.s state of mind going into the meeting.
Lets assume he thought he was going to receive information that he knew the Russians obtained through criminal activity.
As long as Trump Jr. did not participate in or encourage the Russian governments illegal activity and there is no evidence in the public domain that he did he has a strong argument that the First Amendment immunizes his conduct. He was just agreeing to receive truthful information.
The Supreme Court considered a similar situation in Bartnicki v. Vopper, a 2001 case in which a journalist received a tape of a conversation among union leaders that someone had recorded in secret, in violation of federal wiretap laws. The journalist did not put anyone up to the illegal recording. The journalist did, however, publicize the recording, and the Court assumed that the journalist knew that the person who made the recording broke the law.
Drawing on the famous Pentagon Papers Case, the 1971 decision that allowed the media to publish classified documents about the Vietnam War, the Bartnicki Court held that the First Amendment protected the journalists right to publicize the recording.
In the current situation, Trump Jr. stands in the shoes of the journalist in Bartnicki, and the Russian government stands in the shoes of the illegal recorder. Like the recorder, the Russian government may have obtained the information illegally.
Like the journalist, Trump Jr. may have known or strongly suspected that the information was obtained illegally, but there is no evidence at present that he participated in or encouraged any illegality.
If special counsel Robert Mueller in his investigation of Russian interference in the 2016 election sought to prosecute Trump Jr. for the meeting, he would likely rely on a campaign finance law that criminalizes accepting money or other thing of value from foreign nationals.
Surely a thing of value means that a campaign cannot accept stocks, bonds, bars of gold, and Renoir paintings from foreign nationals. But deciding whether truthful information about a competing presidential candidate is a thing of value under the statute is more complicated.
The question is so thorny that judges would likely rely on a doctrine called constitutional avoidance. That rule posits that if a statute is ambiguous between two meanings, one of which is potentially unconstitutional and one of which is safely constitutional, the court should opt for the more narrow, and safely constitutional, interpretation.
A narrow reading of the term thing of value that does not criminalize mere information avoids any potential First Amendment problem. Courts would likely adopt that reading of the law. Good news for Don Jr.
To be sure, trouble may lie ahead for the Presidents first born if evidence emerges that he encouraged or participated in Russian criminality. Perhaps Mueller has or will find statements to the Russians from Trump Jr. or others in the campaign like this is greatget me more. The First Amendment does not protect people who join or abet a crime. Or perhaps the presence of Rinat Akhmetshin, a possible Russian spy, at the meeting will lead to evidence that Trump. Jr. was colluding in espionage.
If anyone in the campaign or the family actually were recruited, that would be a serious crime, but the emails released to date suggest that Trump Jr. had no idea that Akhmetshin would attend.
Such is the irony, and the power, of the right to free speech. It protects to everyone, even members of President Trumps inner circle who may well hold the First Amendment in contempt. The elder Trumps disdain for the media is legendary, and he was just sued for First Amendment violations related to his Twitter account.
The Trump family may not like the First Amendment, but they are going to need it.
David M. Shapiro is the director of appellate litigation for the Roderick and Solange MacArthur Justice Center, a clinical assistant professor of law at Northwestern Pritzker School of Law, Chicago, and a Public Voices Fellow through The OpEd Project. He worked previously as a First Amendment and media lawyer in private practice.
The views expressed by contributors are their own and not the views of The Hill.
Continue reading here:
How the First Amendment could save Don Jr. - The Hill (blog)
Furthering its efforts around the First Amendment, the Radio Television Digital News Association has joined more than 20 organizations in launching the U.S. Press Freedom Tracker, a website dedicated to documenting abuses against journalists.
The tracker is a repository of data tracking incidentsarrests of journalists, equipment searches and physical attacks among themat a time when journalists in the U.S. are facing increasing hostility, RTDNA said.
Reporters covering protests in Washington and North Dakota, for instance, are among 19 journalists charged with crimes so far this year. Ten are currently facing charges, RTDNA said.
Twelve journalists have been subject to equipment searches, and 10 have been physically attacked, the tracker shows.
The tracker shows data collected from news reports and submissions. The Columbia Journalism Review, Investigative Reporters & Editors and Knight First Amendment Institute are among partnering organizations.
RTNDAs support of the tracker is part of the groups larger multi-faceted initiative fighting the range of threats, from limits to ugly rhetoric, that impede journalists from doing their jobs. The group launched a First Amendment task force earlier this year.
See the rest here:
RTDNA Joins Free Press Groups in Tracking First Amendment Abuse - Broadcasting & Cable
Editors note: This commentary is by Peter Berger, an English teacher at Weathersfield School, who writes Poor Elijahs Almanack. The column appears in several publications, including the Times Argus, the Rutland Herald and the Stowe Reporter.
Over recent decades, public schools have been drafted to play Hemingway while the rest of us have taken turns impersonating Joyce.
This brings us in a roundabout way to the First Amendment.
The Founding Fathers were adamant that free speech and a free press are essential for the health and survival of a free republic. I agree with Benjamin Franklin that there is no such thing as public liberty without freedom of speech. In a day where we see the press corralled, berated and threatened at campaign rallies, and where the president echoes Stalin and Mao to declare our free press the enemies of the people, Im especially leery about any abridgement of anyones free speech rights.
However, I tell my students that the First Amendment doesnt mean you can say whatever you want whenever you want to. The government limits citizens speech all the time without violating the Constitution in a judges courtroom, in my classroom during instruction and tests, and, borrowing from Justice Holmes, by barring us from knowingly and falsely shouting Fire in a crowded theater.
The nexus of free speech and classrooms is important to me as a teacher not only because of my ardor for the First Amendment, but also because it illustrates societys failure to grasp classroom reality which brings us back to Joyce and Hemingway.
Courts have clarified students free speech rights in several signal decisions. In a Vietnam-era student protest case, the Supreme Court ruled that students and teachers dont shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, and that schools can suppress student political speech only if that speech would materially and substantially interfere with the schools mission and operation.
One concurring opinion stipulated that students free speech rights are not the same as or co-extensive with those of adults. A dissenting justice expressed what he considered the courts consensus that school officials should be granted the widest authority in maintaining discipline and good order unless their limitations on students speech are motivated by their own political opinions. Going further in his dissent, another justice warned that the courts decision effectively compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students.
Two decades later the court clarified its position in a case involving a student who used sexually suggestive language and lewd innuendo in a campaign speech at a school assembly. This time the courts majority held that while the First Amendment protects some offensive forms of speech for adults, the same latitude of expression is not permitted to children in a public school. Officials concern for the sensibilities of other students constitutes a legitimate reason to limit student speech.
These precedent-setting rulings bear on a more recent case that affords a look at decisions that officials including judges make and how they dont reflect but do affect real students and teachers like me. The case this time featured breast cancer awareness bracelets bearing the inscription I (heart) boobies. Administrators banned the bracelets as vulgar and inappropriate for middle school. When two female students defied the ban and were suspended, they sued the district for violating their First Amendment right to free speech.
The schools attorney argued that the I love boobies message pushes the limits of propriety in public schools, undercuts efforts to maintain reasonable decorum, and disrupts the schools proper focus on education. He asserted that administrators should be able to prohibit the use of lewd language to convey political or social messages when the same message can be conveyed in a more decorous manner without lewd language.
The ACLU lawyer representing the students countered that I love boobies did not reasonably pose a substantial material disruption to learning and middle school student behavior.
A series of federal courts eventually concluded that the boobies bracelets were not plainly lewd and were protected as a commentary on a social issue, specifically breast cancer. The Supreme Court declined to hear the case on appeal, which left standing the lower courts decision and overturned the districts ban.
Its worth noting that at the same time this federal court in Pennsylvania was outlawing the ban, a federal court in Indiana was ruling that a school in its jurisdiction could impose a ban on the same boobies bracelets.
Lets set aside the vagaries of our federal court structure, and the image of 13 robed federal jurists discussing boobies for a full hour. Lets also agree that fighting breast cancer is worthwhile.
The principal of the school, herself a breast cancer survivor, banned the bracelets as imposing a substantial risk of disruption and distraction. In contrast, while conceding that there are always immature boys, one of the student plaintiffs opined, But I dont think its that disruptive.
Who should get to decide how much disruption is too much a seventh-grader or the school principal?
Before you answer, consider the T-shirt promoting testicular cancer awareness, also in current circulation, that bears the message, I love balls. How about the bisexual female high school student who came to school wearing a shirt declaring I Enjoy Vagina? Do we allow this as protected speech regarding her sexual preference? Do we allow a male student to wear the same shirt? How about the male football team?
The courts have ruled that administrators decisions must turn on whether they can reasonably forecast that the speech in question will disrupt education, violate other students rights, or obstruct appropriate discipline. No one can better judge what could likely disrupt a particular school than the principal and teachers who work there, the people entrusted with educating our children in the first place.
If you cant trust me to decide about bracelets and T-shirts, how can you possibly trust me to disseminate ideas?
As for our distinguished jurists, anybody who cant predict that many adolescents will have a disruptive, harassing field day with slogans that include reproductive organs and allied body parts shouldnt be in the position of deciding whats reasonable.
Once again your public schools have been rendered impotent.
Smirking vulgarity has triumphed in the name of free speech.
The courts and the general public will cluck their tongues at the further decline of public education.
Deal with it, Hemingway, theyll demand as they duck for cover.
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