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First Amendment

By Debra Cassens Weiss

December 17, 2019, 2:17 pm CST

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A federal appeals court decision criticized for its potential to chill protests is no longer unanimous.

The 5th U.S. Circuit Court of Appeals at New Orleans had unanimously ruled in April that a Louisiana police officer could sue the organizer of a Black Lives Matter protest for a serious injury caused when a different protester threw a heavy object, the Advocate had reported at the time.

On Monday, one of the panel members, Judge Don Willett, wrote that he had a judicial change of heart and issued a partial dissent. How Appealing and the Volokh Conspiracy noted the Dec. 16 opinion.

The American Civil Liberties Union has asked the U.S. Supreme Court to hear the case, the Washington Post reported Friday. Civil liberties lawyers have criticized the 5th Circuit decision for its potential to chill protests and impact activists First Amendment rights.

Willett, an appointee of President Donald Trump, said he had changed his mind on the First Amendment issue.

The officers complaint is skeletal, and it does not plausibly assert that [organizer DeRay] Mckesson forfeited First Amendment protection by inciting violence, Willett said. He cited NAACP v. Claiborne Hardware Co., a 1982 Supreme Court decision. The case held that the First Amendment protects fiery words that dont provoke or incite acts of violence, Willett said.

Before reaching the First Amendment issue, Willett said, the 5th Circuit should ask the Louisiana Supreme Court whether Louisiana law imposed a duty on the protest organizer to protect the officer from the criminal acts of others.

If theres no negligence, theres no case, Willett wrote. And if theres no case, theres no need to fret about the First Amendment.

But Willett did consider the First Amendment ramifications with references to pro-democracy protests in Hong Kong, tea party protests by American colonists, and civil rights marches by Martin Luther King Jr.

Willett wrote: Dr. Kings last protest march was in March 1968, in support of striking Memphis sanitation workers. It was prelude to his assassination a week later, the day after his Ive Been to the Mountaintop speech. Dr. Kings hallmark was nonviolent protest, but as he led marchers down Beale Street, some young men began breaking storefront windows. The police moved in, and violence erupted, harming peaceful demonstrators and youthful looters alike. Had Dr. King been sued, either by injured police or injured protesters, I cannot fathom that the Constitution he praised as magnificenta promissory note to which every American was to fall heirwould countenance his personal liability.

The officer suing Mckesson had alleged that he did nothing to calm Baton Rouge protesters throwing water bottles and led them onto the highway where he was injured. The protesters were responding to the July 2016 shooting death of Alton Sterling, who was shot by officers investigating a report of a man with a gun.

The 5th Circuit majority responded to Willett in its new opinion, which held that Mckessons speech was not necessarily protected by the First Amendment.

Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders and demonstrators, said the majority opinion by Judge E. Grady Jolly.

Claiborne Hardware doesnt insulate Mckesson from liability for his own negligent conduct simply because he intended to communicate a message, Jolly said.

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5th Circuit judge has 'judicial change of heart' in case that could chill protests - ABA Journal

Should these witnesses testify, they can resist certain questionsfor example by invoking executive privilege or their own Fifth Amendment rightsand they would surely insert do not recalls into the record, but they would face consequences for lying. The president often characterizes his public comments on pending investigations as freedom of speech or fighting back, but his aides have no First Amendment right to lie under oath, and perjury is never excused by self-defense. As the Supreme Court stated in the Bryson case 50 years ago: Our legal system provides methods for challenging the Governments right to ask questionslying is not one of them.

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In many religious and moral traditions, bearing false witness constitutes the most serious form of deception and occasions the most dire punishment. Even if the solemn nature of an oath no longer instills fear of eternal damnation, breaking that oath does warrant a felony charge. Among the 4,000-plus federal crimes, at least 300 address various forms of deception. Perjurywillfully making a false statement under oath about facts material to an official proceedingis the most significant of the federal dishonesty offenses. Perjury goes way back: In legal texts from the ancient world and medieval codes, it was punishable by death. In the 16th-century common law that is the precedent for Americas criminal statute, perjury was declared infamous and detestable. Since the First Congress, in 1790, lying under oath has been proscribed under federal law, and all 50 states now have statutes criminalizing perjury.

The elements required to prove perjury are stringent and specific. Under Title 18, United States Code, Section 1621, prosecutors must demonstrate that the sworn statement is false, that the lie is willful and deliberate, and that the statement could influence the proceeding. Cases can be difficult to prosecute and prove, because perjury requires clear and direct questions and brazenly untrue responses. The law does not prohibit trivial falsehoods or carelessness, statements that are misleading but literally true, or statements that are incomplete and merely evasive.

The general perjury statute covers false evidence presented to tribunals other than courts that act with the authority of law, including Congress. Should witnesses lie to Congress, they could laterup to five years later, given the statute of limitationsface a criminal indictment in court. Impeachment proceedings have intersected with perjury charges before. Both President Richard Nixons chief of staff, H. R. Haldeman, and his attorney general, John Mitchell, served time in prison for perjury committed before the Senate Watergate Committee. And one of the articles of impeachment against President Bill Clinton arose from his testimony to the grand jury and sworn deposition in Paula Joness civil suit.

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Why Republicans Are Refusing to Testify - The Atlantic

Timothy Zick believes the principles involved in the lessons hes drawing about the First Amendment in the current era are useful for readers to know and to embrace regardless of their political beliefs. (WYDaily/Courtesy of W&M Law School)

Writing his latest book on the First Amendment his fourth in 10 years William & Mary Law ProfessorTimothy Zickdecided to try something a little different. His new volume would be slimmer, more accessible to general audiences, and ripped from the latest headlines.

And as of Oct. 28, its also in eager readers hands.

InThe First Amendment in the Trump Era,Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School, not only examines the growing number of First Amendment controversies in the past three years, but also connects present concerns to episodes throughout American history. He also relates recent First Amendment controversies to the concept of dissent.

Indeed, dissent looms large, beginning when Zick dedicates his book to all the noisy dissenters past, present, and future.

Zick believes that dissenters deserve a significant amount of credit for doing the hard work of checking governments and influencing citizens, often at considerable cost to their own safety and livelihoods. Although he has not chosen the path of activism, Zicks First Amendment scholarship highlights public contention and dissent.

I am a true believer in the power of dissent to facilitate social, political and constitutional change, Zick said.

Zick wrote his most recent book with minimal legal jargon or extensive discussions of cases or doctrines. He wants it to be read by people whether they support the current president or not.

I think the principles involved in the lessons Im drawing to the current era are useful to know and to embrace regardless of your partisan stripe, Zick said. I didnt want to write a book that was anti-Trump so much as pro-First Amendment.

Cracks in that amendment were forming well before the 2016 election, the result of what Zick refers to as preexisting conditions. Among them were the weakening of the institutional press, heightened political polarization, the rise of the Internet and the distrust of experts and institutionsall of which the President took advantage of when the time arose.

Digitized culture gives you democratic speech cheap and efficient speech, Zick said. But it also gives you a culture that trades on instant conflict, hate and take-downs; its a very mixed bag. Zick added, Trump is an archetype of the erahyper-communicative, hyper-combative and deeply polarizing.

Witnessing increasingly strident speech before and during the 2016 campaign, Zick knew a book was imminent. He noted that candidate Trump incited his supporters to rough up protesters, promised to open up the libel laws, and even proposed shutting down parts of the Internet to thwart terrorists. Many of these themes and patterns continued after Trump became president.

As of a year into his presidency, I thought there was already enough material for a book, Zick said. And the President just kept on talkingand tweeting.

With more and more examples piling up after the publication of the book, and the possibility of a second Trump administration, Zick does not rule out a second edition with, at the very least, an updated introduction or prologue.

I dont know if Trump will emphasize new themes or issues if he is re-elected or just go back to the old attacks, Zick said, So you just might get more examples of things that I point out in the book. Even so, the presidents views on free press and speech, and those of his supporters, are worth examining.

As noted, this book is very different from Zicks previous works. His other books include, Speech Out of Doors: Preserving First Amendment Liberties in Public Places, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties and The Dynamic Free Speech Clause: Freedom of Speech and Its Relation to Other Constitutional Rights. These books were written primarily for academic audiences. The current book is aimed at a much broader audience and is about events happening in real time.

Its happening in front of you, and that poses challenges for trying to write with some dispatch, but it also means that the book connects to current and timely concerns, Zick said.

Pondering an audience beyond the academy, Zick hopes that readers will learn about the many misperceptions people have about the First Amendment. Its one thing, for example, for a president to speak about a subject from a bully pulpit, Zick says, but its quite another for him to coerce others or regulate speech.

And then there is the misunderstanding about the press in general the idea that there is a separate Constitutional provision the Free Press Clause that gives the institutional press a broad set of rights or immunities. The reality is that the institutional press does not generally have any special rights and privileges. The press rests on far shakier constitutional ground than many Americans realize.

I think its important to remember that the press has always been both problematic and essential, Zick says. Its always had excesses like any other institution, but its also been critically important to self-government, the search for truth, and other First Amendment values.

Above all, Zick hopes readers learn about the value of dissent. He notes that noisy dissent has long been considered part of the American ethos, but the reality is that the citizenry have an increasingly low tolerance for opinions that they dont agree with, from those who attend Trump rallies to students on college campuses.

Although headlines seem more clamorous as a new election looms, Zick nevertheless feels cautiously optimistic, particularly given the evidence that people still exercise their right to disagree and disrupt. He cites as examples the March for Life, the Womens March after the 2016 election, and protests at airports after the initiation of the Muslim travel ban.

These were pockets that suggest dissent is very much alive, and people havent caved into efforts to suppress public contention, Zick said.

Early reviews of The First Amendment in the Trump Era have been favorable. Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School, says the book makes a truly important contribution to our understanding of the contemporary First Amendment. Nadine Strossen, the John Marshall Harlan II Professor of Law at New York Law School and past president of the ACLU, calls the book a must read and says, Zicks book shows how the lessons of the past can helpfully guide us through the unique First Amendment challenges we face today.

Zick says his next project might be about public protests. In the meantime, he is enjoying talking about his latest book and sharing it with others.

I have friends and neighbors who are reading it, and asking questions, Zick says. Those conversations have been gratifying, and I hope others will learn about the First Amendment by reading the book.

Zick graduatedsumma cum laudefrom Indiana University andsumma cum laudefrom Georgetown University Law Center, where he received the Francis E. Lucey, S.J. Award for graduating first in his class. While at Georgetown, he was a Notes and Comments editor of theGeorgetown Law Journal. Following law school, he was an associate with the law firms of Williams and Connolly in Washington, D.C., where he assisted in the defense of congressional term limits in the Supreme Court of the United States, and Foley Hoag in Boston.

Zick served as a law clerk to the Honorable Levin H. Campbell of the United States Court of Appeals for the First Circuit. He also served as a trial attorney in the Federal Programs Branch of the United States Department of Justice, where he defended the constitutionality and legality of a variety of federal programs and statutes.

A frequent commentator in local, national, and international media regarding public protests and other First Amendment concerns, Zick testified before Congress on the Occupy Wall Street protests and rights of free speech, assembly and petition. He received the Plumeri Award for Faculty Excellence in 2011, 2013 and 2017.

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W&M professor's new book examines the First Amendment in the Trump era - WYDaily

CharlesDickensunwittingly described our current political situationwhen writingA Tale of Two Cities:It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness.

United States citizens live in an age of unprecedented rights. Our Supreme Court in 2015upheld the right for gay people to get married.Recently,civil asset forfeitureis being reconsidered, and theapparatuses supporting the war on drugs arebeginning to be dismantled.The currentgenerationhas upheldtheimportance of Miranda Rightsin Florida v. Powelland more broadly questioned the importance of the police state. Thecourts agree that speech includes the right to spend money onadvertising ideasand that corporationsalso are entitled tospeechprotection.This generation realizes that patriotism should not stifle dissent. In fact,the United States Supreme Court recognizes in Snyder v. Phelps that one isevenable tolegallypicket a service members funeral.More charter schoolsare becoming another school choicefor poorer Americansand,as a result,are producing better-educated students.The death penalty is illegal in 21 states,andthe First Step Act is a good start to sentencing reform. In many ways, were living in the best of times.

On the other hand,all is not well in theUnited States. Thecurrent president workedvigorouslyto deport millions of undocumented immigrants, wanted to use extreme vetting of Muslim immigrants and tried toencouragea Muslim registry. His efforts todecry independent mediaandhis support for the death penalty andfor unconstitutionalstop-and-friskpoliciesaredisgustingremnants of a worse time.However, thedandyDemocratsare no lesser of a poison.Rather than condemn authoritarianism, the DemocraticParty has looked toward ways of making power polite.ElizabethWarrens specific brand of economic populism callsfor wealth taxes,which will increasegovernment intrusion into the lives of citizens ina way never before seen. Additionally, Warren calls for eliminating charter schools,which primarily benefit poorer children,while ironicallysending her son to a private school. OtherDemocratic darlingslikeBetoORourke claim that theyre forcibly going to be taking guns from the American populace.

Outside the larger political scene, First Amendment rights have been largely upheldby the Supreme Courtin the 2010s.Janus v. AFSCME successfully argued that labor unions collecting fees fromnon-union members violates the First Amendment provisions relating to free association and freedom of speech.In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court upheld the right of conscience relating to artistic and religious freedom. In 2017, Lee v. Tam upheld the right of trademarking an offensive name.In Trinity Lutheran Church of Columbia v. Pauley, the freedom to be associated with a religious group does not make one ineligible for government benefits and thus upholds free association.Another landmark win for free expression took place in 2017 whenPackinghamv. North Carolina struck down the statute that prohibited sex offenders from accessing social media. In Arizona Christian School Tuition Organization v. Winn, tax breaks and grants were further allowed to be given to churches and other religious organizations. Furthermore, Hosanna-Tabor Evangelical Lutheran Church and Schoolv. Equal Employment Opportunity Commission established that discrimination laws do not apply to organizations selections of religious leaders. In 2012 notably, United States v. Alvarez struck down exceptions to the First Amendment relating to stolen valor.

The trend through the 2010s showsan increasingly broad look on rights. By denying restrictions on churches, free assembly, artistic freedom, etc.,we strengthen the values of dissent and discourse that allow our country to thrive.

However, outsideof the Supreme Courtthe First Amendment has fared worse.Former PresidentBarackObama actively encouraged IRS action against conservative nonprofit organizations. In 2013, journalists protested the exclusion of press photographers from news events and criticized the first amendment case of Citizens United. Thats not to say that our current president has done any better.President Trump frequently bashes the mediaas fake news andwants to change libel laws. Also, our students are increasingly hostile to freedom of speech. According to a Brookings Institution poll, 40% of students believe the Constitution does not protecthate speech. Nineteen percentof students said that physical violence is an acceptable way to deal with offensive speech,and 50% of students said the appropriate response to speech they disagree with is to shut it down.

Overall, while the First Amendment is increasingly being upheld by higher courts, the cultureand political will upholding expressionhas weakenedand needs to be bolstered.

Disclaimer: The views and opinions expressed by individual writers in the opinion section do not reflect the views and opinions of The Daily Campus or other staff members. Only articles labeled Editorial are the official opinions of The Daily Campus.

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First Amendment rights in the 2010s - UConn Daily Campus

PLAINVILLE The state says justices should reject a petition by Michelle Carter to appeal to the U.S. Supreme Court, because there is no First Amendment issue to decide in the landmark texting-suicide case.

Lawyers for Michelle Carter, 23, who is currently in jail serving a 15-month sentence, argued that her text messages and calls were protected free speech and that she was not responsible for the suicide of Conrad Roy III.

In their response filed last month, the state Attorney Generals office says the courts verdict in Carters speech is consistent with previous decisions by the nations highest court regarding speech integral to criminal conduct.

Inasmuch as petitioners wanton or reckless conduct causing Roys death was carried out by speech, that speech was therefore un-protected because it was integral to the commission of involuntary manslaughter, according to the state attorneys generals response.

Carter filed what is called a certiorari petition. Experts say the court accepts about 1.2 percent of the petitions they receive.

Roy, 18, of Mattapoisett, killed himself in July 2014 by breathing in toxic carbon monoxide from a gas-powered water pump in placed in his pickup truck. Carter, then a 17-year-old at King Phillip Regional High School, was at her Plainville home at the time and spoke twice by phone to Roy in addition to text messages.

Before Roys suicide, prosecutors argued that Carter and Roy shared an intimate online relationship over several months and that she coerced him into killing himself.

Presiding over Carters jury-waived trial, Taunton Juvenile Judge Lawrence Moniz ruled that Carter caused Roys death when she instructed him to get back in his truck as it was filling with toxic gas after he changed his mind about killing himself.

Carter told friends she could hear the motor from the water pump and Roy moaning before he stopped responding to her calls.

The state Supreme Judicial Court unanimously upheld her conviction in a landmark decision criticized by free speech advocates and legal scholars.

In the state attorney generals 29-page response, it argued that the SJCs decision was correct.

The document was written by state Attorney General Maura Healey, state Solicitor Elizabeth Dewar and assistant attorney general Maria Granick, argues that the justices should deny Carters petition.

In the response, Healey also argued that Carters due process rights were not violated and that the states manslaughter statute is not unconstitutionally vague as applied to her conduct.

Carters lawyers also argued the state SJC created a conflict with at least three other state supreme courts about the application of the First Amendment in such circumstances. But the attorney generals office said there is no conflict. Carter was convicted in 2017 and sentenced in February. Earlier this year, a former Boston College student was indicted by a Suffolk County grand jury for involuntary manslaughter in a similar texting suicide case.

David Linton may be reached at 508-236-0338.

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State argues there is no First Amendment issue in Michelle Carter case - The Sun Chronicle