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What can powerless, concerned citizens do in response to President Trump's move to withdraw the United States from the Paris Climate Agreement?

Here's a pretty good answer from Sen. Sheldon Whitehouse, D-R.I.:

If you haven't joined an environmental group, join one. If your voice needs to be heard, get active. If you are a big corporation with good climate policies that has shied away from engaging politically, it's time to engage.

Taken from his official statement on the withdrawal, Whitehouse describes exactly the type of activity the First Amendment was written to protect. When government takes action that citizens find objectionable, the First Amendment protects their right to organize, petition, and speak out. In other words, it protects the right to "get active."

Unfortunately, Whitehouse has spent his political career promoting efforts to hamper just this sort of civic engagement.

He uses the megaphone that comes with his position of power to rail against the rights of advocacy groups that choose to respect the privacy of their donors. And he supports bills that would cripple all but the most well-funded groups.

Whitehouse has introduced the so-called "DISCLOSE Act" multiple times now. DISCLOSE is a contrived acronym for "Democracy Is Strengthened by Casting Light on Spending in Elections."

Whitehouse and his allies say this bill would increase transparency. But the "light" that would be cast would not shine on those in power, such as senators. We wouldn't know anything about what groups or persons he meets with behind closed doors.

Rather, the bill targets citizen groups that seek to hold those in power accountable. Whitehouse would like us to believe that the legitimate interest in government transparency necessitates exposing the personal information of private citizens who choose to join groups and advocate for social change.

Disclosing the names, addresses, occupations, and employers of citizens who give to advocacy groups exposes people to potential intimidation and harassment. So if his bill became law, fewer are likely to want to join an environmental group. The loss of privacy increases the costs of civic engagement.

The laws drive up compliance costs for groups too. Disclosure laws are very complex. They require groups to file frequent, detailed reports to government agencies. To stay in compliance, groups must hire expensive lawyers and spend resources on exhaustive record-keeping. As a result, Whitehouse is promoting laws that would directly hinder citizens' willingness and ability to "get active."

The DISCLOSE Act is just one part of Whitehouse's endless crusade against the free speech rights of groups he likes to call "dark money" organizations. The pejorative term "dark money" refers to money spent on speech by groups that do not have to publicly report the private information of their donors to the government.

One such "dark money" group is the Sierra Club. Among the most well-known environmental advocacy groups in the nation, it is presumably one of the groups Whitehouse would encourage concerned citizens to join.

The Sierra Club explicitly offers to protect the privacy of its donors, including corporate donors. So, it clearly has supporters who desire anonymity and with good reason. Surely, some of those supporters would choose not to donate if they no longer had this option.

Whitehouse's call for increased political engagement from corporations highlights his apparent myopic view that the First Amendment only applies to advocacy he agrees with as well.

Whitehouse makes no attempt to hide his animus toward corporate political speech. He has repeatedly co-sponsored a constitutional amendment that, among other abominations it would do to the First Amendment, seeks to grant Congress unlimited power to prohibit any corporate entity from spending money on political speech.

No word on whether he favors an exception for corporations with "good" policies on climate change.

It is heartening to see that Whitehouse is now encouraging citizens (and corporations) to engage in political speech instead of yet again attempting to silence opposing viewpoints.

His statement demonstrates that he does indeed understand the value of First Amendment-protected advocacy. However, the statement is also an example of the far too common tendency among many politicians to view only friendly advocacy as legitimate.

The First Amendment protects the right of every American to privately support an environmental group. It also supports the right of every corporation to speak in opposition to the president's actions regarding climate policy.

But Whitehouse must realize that the First Amendment also protects the right of citizens, nonprofit groups, and corporations to engage in political speech he opposes. In the end, his anti-speech objectives will harm the First Amendment rights of his allies as much as his opponents.

Alex Baiocco is a Communications Fellow at the Center for Competitive Politics in Alexandria, Virginia.

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Sen. Sheldon Whitehouse is a hypocrite on the First Amendment - Washington Examiner

When Zachary Wood arrived at Williams College his freshman year, he had high hopes for an academic environment that challenged his views. Now going into his senior year, Wood says he has faced backlash from students and administrators for inviting controversial speakers to campus.

Wood appeared before the Senate Judiciary Committee on Tuesday, part of a panel discussing free speech on college campuses.

Wood describes himself as a liberal Democrat, but he brought provocative speakers representing diversepolitical ideologies to campus. He wanted to expose students to ideas they disagree with.

One such speaker invitation prompted the Williams College administration to cancel the event and revise the campus speaker policies.

Wood said this was impermissible, undemocratic, and antithetical to the intellectual character of the college

Williams College is not alone in disinviting speakers. The Foundation for Individual Rights in Education (FIRE) has tracked attempts to disinvite college speakers since 2000. It documented an upward trend. In 2016, FIRE recorded 43 incidents in which students or administrators attempted to cancel a planned speech.

Senator Ted Cruz lambasted college administrators for acting as speech police.

If universities become homogenizing institutions that are focused on inculcating and indoctrinating rather than challenging, we will lose what makes universities great, Cruz said.

The issue of disinviting speakers gained national attention in February when violent protests broke out at the University of California, Berkeley in response to a scheduled talk by alt-right provocateur Milo Yiannopoulos.

More recently, Berkeley cancelled a talk by commentator Ann Coulter amid more threats of protest.

Ranking Democrat Sen. Dianne Feinstein pointed to these violent demonstrations as justification for college administrators cancelling speeches. The senator from California said university police forces often do not have the training and resources needed to handle these situations.

Feinstein argued that Berkeley has a right to protect its students from demonstrations once they become acts of violence.

While there was consensus among panel members on the importance of free speech on campus, the issue came to the application of that right in practice.

UCLA Law professor Eugene Volokh said it was important to punish violent protesters to ensure that they dont continue to disrupt speeches. He said this will sometimes require bringing in more law enforcement.

If you violate the law and by this I mean laws against vandalism, laws against violence, laws against physically shouting people down, then in that case you will be punished rather than having your goals be achieved, Volokh said.

Feinstein pushed back on the suggestion of more law enforcement to control college protests. She asked whether any lessons were learned fromthe 1970 Kent State shooting, in which Ohio National Guardsmen shotand killed four students and injured nine others.

Frederick Lawrence, secretary and CEO of the Phi Beta Kappa Society, said colleges must start with a strong presumption in favor of the speech but make judgements based on the circumstances. As a former president of Brandeis University, Lawrence said it is greatly exaggerated to expect colleges to have the resources to deal with all types of violent protests.

Lawrence said that no matter the speakers beliefs, colleges should find ways to host the event. He suggested making speeches private events if needed, closed to people outside the university community.

Over the past few months, several states have taken up the issue of free speech on campus. A bill passed the North Carolina House in April that would ensure public universities be open to all speakers. It also would require sanctions on protesters who disrupt events.

Panelist Floyd Abrams, a prominent First Amendment lawyer, said he was apprehensive about state legislatures getting too close to the university campuses. Abrams said state legislatures should not dictate what colleges can teach or cannot teach.

On the federal level, a bipartisan resolution calling for the protection of free speech was introduced in the U.S. House of Representatives in May. If passed, the resolution would condemn university free speech zones and restrictive speech codes. The Senate does not have any similar legislation.

Calling himself a small government guy, Sen. Ben Sasse said he wants to see as little of this adjudicated by coercion and power and possible. The Nebraska senator and former college president called on college administrators to defend free speech on their campuses.

Following the hearing Sen. John Kennedy agreed with Sasse, making clear to reporters that federal intervention was not needed to solve the problem.

I dont want the government to have to come in and say this is acceptable and this isnt, Kennedy said. I want a university president to do his job and to have the guts to do it. And if he cant do it he ought to quit.

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Balancing the First Amendment and Students' Safety - Roll Call

On Monday in Packingham v. North Carolina,the justices unanimously (minus Gorsuch) voted to invalidate a North Carolina statute making it a felony for a registered sex offender to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages. But Justice Alito, joined by Roberts and Thomas, concurred only in the judgment. All eight Justices agreed that the statute wasnt sufficiently tailored. Both opinions emphasized the possible application of the statute to Amazon.com, washingtonpost.com, and webmd.com.

So where did the opinions differ? The central disagreement between the two opinions is how judges applying the First Amendment should respond to the changing nature of cyberspace. From the majority:

While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

And from the concurrence:

The Court is correct that we should be cautious in applying our free speech precedents to the internet. Ante, at 6. Cyberspace is different from the physical world, and if it is true, as the Court believes, that we cannot appreciate yet the full dimensions and vast potential of the Cyber Age, ibid., we should proceed circumspectly, taking one step at a time. It is regrettable that the Court has not heeded its own admonition of caution.

The majoritys point that that what [courts] say today might be obsolete tomorrow is an important one that I discussed in the Internet context almost 20(!) years ago in Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process.

But I want here to highlight a slightly different point. When it comes to changing phenomena (like cyberspace), what is the best default position with respect to the First Amendment? Should judges err on the side of starchy application of free speech tests, or a more flexible approach? This are not new questions. For instance, back in 1996, in Denver Area Education Telecommunications Consortium, Inc. v. FCC, the Supreme Court considered regulation of indecency on public access and leased access channels. Justice Souter wrote a concurrence suggesting that, in the fast-changing world of telecommunications, judges should heed the admonition First, do no harm. Justice Kennedy responded: Justice Souter recommends to the Court the precept, First, do no harm. The question, though, is whether the harm is in sustaining the law or striking it down. As I noted in a different article, the injunction [f]irst, do no harm provides little guidance unless we can identify what the do no harm position is.

In Mondays case, Justice Kennedys majority opinion, consistent with his concurrence in Denver Area and his First Amendment jurisprudence more generally, treats broad and rigorous application of First Amendment tests as the do no harm position in the ever-changing world of cyberspace. Justice Alitos concurrence wants a default that takes smaller steps and gives judges (and thus legislatures) more flexibility. Obviously there is no ineluctable answer here. But, once again, baselines are doing a lot of work.

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What is the 'do no harm' position on the First Amendment in cyberspace? - Washington Post

Progressive hysterics highlight the beauty of the First Amendment

American free speech is a wonderful thing, even when the speech is stupid

Free speech is indeed the great American right; our freedom of speech regime is perhaps the most liberated in the world. It is exceedingly difficult to get in trouble for saying something in America. This is a good thing.

Its a good thing even when the speech in question is irritating, hateful or profoundly stupid. Such was the case recently at the University of Georgia, where the colleges Young Democrats called for the beheading of congressional Republicans. The group of students was actually playing off of a professors earlier call for the firing-squad execution of Republicans. Both the professor and the students were demanding that Republicans be killed due to their efforts to repeal Obamacare and replace it with Trumpcare. (It seems to be an accepted part of the American political order that the Left, when confronted with politics they dont like, will often quickly and happily resort to violence or the threat of violence.)

There are several ways to look at this incident. On the one hand, this is simply an instance of childish political hysterics, something the American body politic must deal with every time theres a Republican in the White House. On the other hand this kind of thing could be an indication of a much more deep-seated political dysfunction, a sign that liberals are increasingly incapable of operating within the bounds of normal, healthy, rational political discourse.

But more broadlyand more importantlywe might look at this stupid dust-up as a key indicator of the free state of American speech and expression. The level of protection that speech is afforded in this country is frankly astonishing, not just compared to the tyrannies and tinpot dictator republics across the globe but even when stacked up against the relatively enlightened countries of Western Europe and the member states of the British Commonwealth. When a university professor and a group of college students can espouse this kind of reprehensible rhetoric free from the fear of prosecution, it says something special about our country (even as it says something rather dismal about the state of progressive politics).

Our college campuses, of course, have in recent years become hotbeds of censorship and anti-free-speech agitation, though such efforts have primarily been directed atconservativespeech: if a right-wing professor or a group of College Republicans had made these comments, you can be assured that the Office of Civil Rights would be mounting several investigations into the matter, and the campus mobs would have instituted a 24-hour vigil against the offenders. Culturally and sometimes legally, free speech is often a one-way street at American universities, and that is a disgrace. But in the country at large, we are more or less entirely free to speak our minds. And that is a blessing.

MORE: Berkeley op-ed: safety of marginalized more important than free speech

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Progressive hysterics highlight the beauty of the First Amendment - The College Fix

The federal government has violated the First Amendment by refusing to register trademarks that officials consider disparaging, the Supreme Court ruled unanimously Monday in a decision that provides a boost to the Washington Redskins efforts to hang on to the teams controversial name.

The ruling came in a case that involved an Asian American rock group called the Slants, which tried to register the bands name in 2011. The band was turned down by the U.S. Patent and Trademark Office because of a law against registering trademarks that are likely to disparage people or groups.

In a ruling against the government, the court said the disparagement clause of the federal trademark law was not constitutional, even though it was written evenhandedly, prohibiting trademarks that insult any group.

This provision violates the Free Speech Clause of the First Amendment, Justice Samuel A. Alito Jr. wrote in a section of the opinion supported by all participating justices. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

[Will bands First Amendment argument resonate with Supreme Court?]

The ruling and a second one Monday that struck down a North Carolina law restricting registered sex offenders from social-media sites bolsters the reputation of the Supreme Court as protector of First Amendment rights.

At a time when some have claimed that speech may and should be regulated or censored if it is offensive, hurtful, or dangerous, the justices firm insistence that governments may not silence messages they dislike is noteworthy and important, Notre Dame law professor Richard W. Garnett said in a statement.

Redskins owner Daniel Snyder was more succinct in a statement: I am THRILLED. Hail to the Redskins. The team was not involved in the case at hand, although the court several times mentioned an amicus brief filed by the Redskins.

The case centered on the 1946 Lanham Act, which in part prohibits registration of a trademark that may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.

But the founder of the Slants, Simon Tam, said the point of the bands name is just the opposite an attempt to reclaim a slur and use it as a badge of pride.

In a Facebook post after the decision, Tam wrote: After an excruciating legal battle that has spanned nearly eight years, were beyond humbled and thrilled to have won this case at the Supreme Court. This journey has always been much bigger than our band: its been about the rights of all marginalized communities to determine whats best for ourselves.

Tam lost in the first legal rounds. But then a majority of the U.S. Court of Appeals for the Federal Circuit said the law violates the First Amendments guarantee of free speech. The government may not penalize private speech merely because it disapproves of the message it conveys, a majority of that court found.

(Jorge Ribas/The Washington Post)

Free-speech advocates had supported the Slants, and the courts decision seemed likely from the oral arguments.

But some ethnic and minority groups worried about what kinds of trademarks the government would now be forced to register. It seems this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful marks, said Lisa Simpson, an intellectual-property lawyer in New York.

While unified on the bottom line, the two groups of justices wrote separate opinions in support of the ruling.

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate, Alito wrote in part of the opinion, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Stephen G. Breyer.

Justice Anthony M. Kennedy wrote a concurring opinion that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all, Kennedy wrote.

The Slants were not happy to be associated with the Redskins band members oppose the team mascot but the band and the team have argued that the law was unevenly applied and gave too much control to the government.

The Supreme Court vindicated the teams position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the governments opinion, Lisa Blatt, a lawyer representing the Redskins, said in a statement.

The teams trademark registration was canceled in 2014 after decades of use. The team asked a district judge in Virginia to overturn the cancellation and was refused. The case is now in the U.S. Court of Appeals for the 4th Circuit in Richmond, awaiting the Slants decision.

The Native Americans challenging the team were disappointed, said their attorney Jesse Witten.

Nothing in the opinion undermines the decision of the [Patent and Trademark Office appeal board] or the District Court that the term redskin disparages Native Americans, Wittens statement read.

Justice Neil M. Gorsuch did not take part in Matal v. Tam.

The court showed no hesitation in striking down the North Carolina law, which was meant to keep registered sex offenders off social networks and websites that could bring them into contact with potential targets.

Kennedy said the law was far too broad, enacting a prohibition unprecedented in the scope of First Amendment speech it burdens.

By prohibiting sex offenders from using those websites, with one broad stroke North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge, Kennedy wrote.

Lester Gerard Packingham is one of about 1,000 people prosecuted under the law. As a 21-year-old in 2002, he had sex with a 13-year-old girl and pleaded guilty to taking indecent liberties with a child. As a registered sex offender, he was prohibited from gaining access to commercial social-networking sites.

But in 2010, he celebrated the dismissal of a traffic ticket on his Facebook profile:

No fine, no court cost, no nothing spent. ... Praise be to GOD, WOW! Thanks JESUS.

One North Carolina court struck down the law and his conviction, but the state Supreme Court reversed, saying the law was carefully tailored to meet the states goals.

None of the justices agreed with that. A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more, Kennedy wrote. He was joined fully in his opinion by the courts liberals: Ginsburg, Breyer, Sotomayor and Kagan.

Gorsuch did not take part in the case.

The rest of the court agreed North Carolinas law could not stand. But Alito said Kennedy had gone too far in his musings and risked sending the message that states are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites.

He was joined by Roberts and Thomas in that concurring opinion.

The case is Packingham v. North Carolina.

Ian Shapira contributed to this report.

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Supreme Court: Rejecting trademarks that 'disparage' others violates the First Amendment - Washington Post