Mediaboss Marketing

The U.S. border has been thrown into the spotlight these last few months, with border agents detaining travelers for hours, demanding travelers unlock devices, and even demanding passwords and social media handles as a prerequisite for certain travelers entering the country. As the U.S. government issues a dizzying array of new rules and regulations, people in the U.S. and abroad are asking: are there meaningful constitutional limits on the ability of border agents to seize and search the data on your electronic devices and in the cloud?

The answer is: Yes. As well explain in a series of posts on the Bill of Rights at the border and discuss in detail in our border search guide, border agents and their activities are not exempt from constitutional scrutiny.

In this first post, well focus on the First Amendment.

The First Amendment is meant to safeguard five fundamental rights: speech, assembly, religion, press, and petition to the government for redress of grievances. The First Amendment also protects the right to exercise these basic rights anonymously because, as Supreme Court Justice John Paul Stevens wrote:

But when border agents scrutinize the massive volume of sensitive information in our digital devices or in the cloud, they infringe on First Amendment rights in at least four distinct ways.

Border searches of our digital devices and cloud data thus implicate core free speech rights. Therefore, border agents should at least be required to obtain a warrant supported by probable cause before any such search of our private digital information.

Indeed, the First Amendment requires even more. For example, when police officers demand purchasing records from booksellers (implicating the right to access information anonymously), the First Amendment requires not only probable cause, but a compelling need, the exhaustion of less restrictive investigative methods, and a substantial nexus between the information sought and the investigation. Given that a digital device search is far more invasive upon First Amendment rights than disclosure of what books a person buys at a single bookseller, border agents should be required to do the same.

And the government should take special care with respect to journalists. The Privacy Protection Act prohibits the government from searching or seizing a journalists materials without probable cause that the journalist has committed a crime. While the statute exempts border searches for the purpose of enforcing the customs laws, it does not exempt border searches for other purposes, such as a criminal investigation.

Unfortunately, so far, courts have refused to recognize the free speech implications of digital border searches. But we hope and expect that will change as courts are forced to weigh the increasing amount of sensitive information easily accessible on our devices and in the cloud, and the increasing frequency and scope of border searches of this information.

Without First Amendment protections at the border, the threat of self-censorship looms large. Travelers faced with the risk of border agent intrusion into such sensitive data are more prone to self-censorship when expressing themselves, when considering private membership in political groups, or when deciding whether to access certain reading or media material. This is especially true for people who belong to unpopular groups, who espouse unpopular opinions, or who read unpopular books or view unpopular movies.

Likewise, confidential sources that provide invaluable information to the public about government or corporate malfeasance may refrain from whistleblowing if they fear journalists cannot protect their identities during border crossings. This is why EFF is calling for stronger Constitutional protection of your digital information and urging people to contact Congress on this issue today.

Were also collecting stories of border search abuses at: borders@eff.org

The good news is theres a lot you can do at the border to protect your digital privacy. Take the time to review our pocket guides on Knowing Your Rights and Protecting your Digital Data at the border. And for a deeper dive into these issues, take a look at our Border Search Guide on protecting the data on your devices and in the cloud.

View post:
The Bill of Rights at The Border: The First Amendment and the Right ... - EFF

We are in an unprecedented era when it comes to the First Amendment and what happens in the next few years could decide the limits of our right to free speech for generations to come. Part of what makes this time feel so foreign is the amount of outlets people now have access to for exercising free speech. The internet has given rise to social media platforms like Twitter and Facebook, where open public discourse can happen easily and frequently. And nobody has taken advantage of the power of social media more than President Donald Trump through his infamous Twitter account. But this era is also unprecedented because of the unique way in which President Trump has tried to suppress the press so early in his presidency.

The President has a very strained relationship with the truth and has shown his capacity to use his influence by branding media outlets who dont align with his reality as Fake News. President Trump has even called what is known as the mainstream media the enemy of the American people. Breitbart a heavily right-winged outlet whose wanton reports more often than not instigate the Presidents Twitter tirades is getting preferential treatment over outlets like CNN. Both conservatives and liberals have agreed that the Presidents suppression of the media is troubling. Former President George W. Bush recently said that the media is indispensable to democracy and necessary for holding people in power accountable.

While the Loyolan is a university publication, we are responsible for truly expressing our First Amendment rights. In the world of today, the press is an easy target. If someone doesnt like something written about them, they blame the media for their image rather than themselves. As a college paper, it is our duty to ensure that the First Amendment remains vital to the people, calling attention to wrongs that the people cannot fight themselves. It is our job to make the world more transparent and try to keep the government honest in this age of confusion.

We at the Loyolan are not the only journalists who have cause for concern. In light of the current political climate and President Trumps clashing relationship with the media, the Washington Post updated its slogan in Feb. to Democracy Dies in Darkness. True though that slogan may be, we maintain that the Loyolan is Your Home. Your Voice. Your News. Especially in this nation where our president is constantly trying to shut out and shut down the press, it is crucial that people in positions of power, like Trump, understand that at the end of the day, we are just that, Your Voice.

This week marks the Loyolans annual First Amendment Week. However, this doesnt necessarily imply a celebration. While the current administration is trying to strip our freedoms from us, we must use events like these to open a discussion within the community so that we can all reach a common understanding of what the role of the media is.

Americas freedom of the press serves as a pillar to the First Amendment. In regards to the media and journalism in the face of the Trump administration, Oscar Wilde once said, In America, the President reigns for four years, and Journalism governs forever and ever. With this in mind, take this week to reflect on the importance of our First Amendment rights and how pertinent freedom of the press is to our democracy here in the U.S.

More:
Board Editorial: What will happen to the First Amendment? - Los Angeles Loyolan (subscription)

PORTSMOUTH

More than 75 people, including politicians and public arts advocates, gathered around the steps of the Portsmouth Main Library on Wednesday for the unveiling of the sculpture Our First Freedom.

The work by Sue Landerman, commissioned by Support Portsmouth Public Art, honors the First Amendment and longtime Virginian-Pilot columnist Ida Kay Jordan, pictured bottom left at the event.

Landermans sculpture is based on Jordans desk at the newspapers former Portsmouth office and includes a manual typewriter, a pair of glasses, a notepad and, of course, a stack of newspapers.

On top of the pile is an issue of Currents, in which Jordan still has a weekly column.

Members of the arts group, as well as Landerman, Jordan and Mayor John Rowe addressed the crowd.

Teri Winslow, The Pilot

Read this article:
Virginian-Pilot columnist Ida Kay Jordan honored with First Amendment sculpture in Portsmouth - Virginian-Pilot

While it is unlikely that Barack Obama would sue President Trump for libel, he very likely has a strong case.CreditPHOTOGRAPH BY DOMINICK REUTER / AFP / GETTY

One of the strangest sentences in American law comes from Justice Lewis F. Powell, Jr. Under the First Amendment, he wrote, in 1974, there is no such thing as a false idea. That is not a decree that the world brims with truth. He meant that we rely on the marketplace of ideas, rather than on judges and juries, to sort out truth from falsehoodand to continually check our understanding of the truth. The Justice was restating the central tenet embraced inNew York Times v. Sullivan, in 1964, the Supreme Courts most important decision about freedom of speech and of the press. The Court extended the scope of the First Amendment to libel law and held that, even if a citizen stated or a newspaper published criticism about a public official that was incorrect, that mistake could be punished as libel only if the critic knew or suspected that the criticism was false. In 1967, the Court applied this rule to public figures as well.

The premise of the marketplace applies broadly, not just to libel law. The First Amendment protects a lot of harmful speech, including much that is incendiary, offensive, and untrue. That protection covers President Trump, even if he does not believe the torrent of falsehoods he has uttered. Experts on crowd size estimate that his Inauguration attracted a crowd of about a hundred and fifty thousand, but Trump is free to say that there were as many as a million and a half people there. Public officials who oversaw the 2016 election reported that there were scant numbers of votes cast illegallyvirtually none compared to the more than 137.7 million ballots castin totalbut Trumpcan claim that, had it not been for massive voter fraud, he would have won the popular vote, which Hillary Clinton won by 2.9 million votes, or 2.1 per cent of the total.

Justice Oliver Wendell Holmes introduced this concept into American law almost a century ago, writing that the best test of truth is the power of the thought to get itself accepted in the competition of the market. That includes Trumps views that journalists are among the most dishonest human beings on Earth and the enemy of the American people, and that the federal appeals-court ruling that struck down his first travel ban, a month ago, jeopardized the security of the country.

A wide body of scholarship has poked holes in Holmess idea. Fifty years ago, Jerome A. Barron, of George Washington University Law School, instructed that the marketplace fails because it assumes incorrectly that all citizens have access to it, that truth is always among the ideas in the marketplace, and that citizens are rational and will see the truth, rather than being irrational or simply subjective.

Frederick Schauer, of the University of Virginia, summarized the case against the marketplace concept: placing faith in the superiority of truth to persuadeover the authority of a speaker, the frequency with which he makes an assertion, the consistency between the assertion and what a listener believes, and other factors, such aswhether an assertion is illustrated or notrequires an almost willful disregard of the masses of scientific and marketing research to the contrary. (Elizabeth Kolbert wrote last month about new cognitive research that shows the limits of reason.) Schauer wrote that the belief that a good remedy for false speech is more speech, or that truth will prevail in the long run, may itself be an example of the resistance of false factual propositions to argument and counterexample.

These days, the most obvious problem with the notion of a marketplace of ideas is balkanization: instead of there being an overarching marketplace where truth can vanquish falsehood, there are at least two very separate marketsfilter bubbles, as Amanda Hessdescribedthem in theTimesfor Trump supporters and opponents, resulting from the tendency of social networks like Facebook and Twitter to lock users into personalized feedback loops, each with its own news sources, cultural touchstones and political inclinations.

There is also the problem that some bubbles are more counterfactual than others. This was clear from the proliferation of bogus news in support of the Trump campaign,likewhat came out of the Macedonian town of Veles, with its 100 pro-Trump websites, many of them filled with sensationalist, utterly fake news, during the Presidential election, asWiredreported. That counterfeit content energized Trumps partisans, the scholars Michael C. Dorf and Sidney Tarrow wrote recently, and may have been decisive in securing Trumps victory.

Regardless of all the evidence underscoring the limitations of the marketplace concept, it remains good law and the ideas underlying it generally shield Trump. While his claims about the size of his inaugural crowd and voter fraud are clearly wrong, they are, arguably, opinions, and hyperbolic, and they do not disparage anyone directly. Even if we are convinced that they are lies and regard them as damagingif we believe, as the Times columnist David Leonhardt wrote, that Trump lies in ways that no American politician ever has beforethe premise of the marketplace is that our society is better off permitting some lying than censoring all of it. Trumps characterizations of the press are clearly opinions, and obviously polemical, though they are ominous, as the Republican Senator John McCainsaidlast month, because attacks on the press like Trumps are how dictators get started.

But, with a series of tweets early this monthbeginning with Terrible! Just found out that Obama had my wires tapped in Trump Tower just before the victory. Nothing found. This is McCarthyism!Trump crossed an important line. The President used the power of his office to accuse his predecessor, without any proof, of ordering a wiretap, which would be illegal. Last week, Senator Richard Burr, the Republican chairman of the Senate Select Committee on Intelligence, and Senator Mark Warner, the Democratic vice-chairman of that committee, released a letter saying that, based on the information available to us, we see no indications that Trump Tower was the subject of surveillance by any element of the United States government either before or after Election Day 2016. This week, F.B.I. Director James B. Comey testified before Congress that the Bureau has no information to support Trumps claim that Obama wiretapped Trump Tower. Admiral Michael S. Rogers, the director of the National Security Administration, testified, Ive seen nothing on the N.S.A. side that we engaged in such activity, nor that anyone engaged in such activity, and said that he had no information to support Trumps claim that British intelligence wiretapped him at Obamas request.

While it is unlikely that former President Barack Obama would sue Trump for libel, he very likely has a strong case. The First Amendment scholar Geoffrey Stonewrotein theChicago Sun-Timesthat there seems no doubt that Trumps statement was false, defamatory, and at the very least made with reckless disregard for the truth. That is the test for damaging the reputation of a public figure or official: Trump either made his assertions with knowledge of their falsity or with disregard of a high degree of probability that they were false. Obama, Stone is confident, could prove that Trump made his false charge, as the Supreme Court defined the standard, with actual malice.

But his charge of McCarthyism against Obama points in a different direction. In 1954, Senator Joseph McCarthy was censured by the Senate, 6722, for bringing it into dishonor and disrepute and obstructing the constitutional process. The scale of the damage that McCarthy did during his four-year witch hunt for communists in the federal government dwarfs what Trump has done so far, in less than two months in office. The nature of what Trump did, however, by accusing his predecessor of an illegal act without providing any support for the charge, amounts to the same offense that the Senate condemned McCarthy for: abuse of power.

While the libel against Obama as a former President is serious damage, even worse is the damage that Trump did by increasing distrust about his own ability to serve as President. The Constitution reposed a stunning amount of power in the Presidency, the legal scholar Akhil Amar wrote. To retain it, a President must preserve the confidence of the American people that he is exercising it with integrity. Lying destroys that confidence and subverts democratic government.

In the current issue of TheNew York Review of Books, David Cole, the legal director of the A.C.L.U.,writes, The best argument for protecting speech is not that the free marketplace of ideas will lead us to truth, but that it is superior to all the alternatives. The free-speech and free-press clauses of the First Amendment give citizens and journalists protection to criticize public officials, including the President. The reason for that protection, the Supreme Court wrote inNew York Times v. Sullivan,is the peoples distrust of concentrated power, and of power itself at all levels. It is a weighty form of ballast, giving citizens and journalists the freedom to check the tendency of government officials to abuse the authority that voters entrust to them.

See the original post:
How the First Amendment Applies to Trump's Presidency - The New Yorker

5546566

Few would question my zeal when it comes to First Amendment rights. Back in the 1980s I was the lead plaintiff in a First Amendment challenge to a Washington, DC law that made it a crime to hold-up signs or banners within 500 feet of an embassy if the signs or banners contained a message critical of the foreign government housed at the embassy. The Supreme Court struck down the DC law in a case known as Boos v. Barry. Since graduating from law school in the mid-1990s, I have put my legal skills to work advancing First Amendment rights, most notably I was co-counsel for Citizens United in the landmark case Citizens United v. FEC. I have also served as counsel for litigants and amici (friends of the court) in numerous other First Amendment cases across the country. So, when it comes to the First Amendment, I know a little something.

One of the things my many years of experience has taught me is that the First Amendments Establishment Clause is no basis for striking down President Trumps newly-issued Executive Order on immigration.

The Establishment Clause prohibits the government from making laws respecting an establishment of religion. It has been interpreted as prohibiting too much interplay between government and religion.

According to those challenging Executive Order 13780, the order stigmatizes and discriminates against Muslims because Trump publicly expressed hostility toward Muslims as a candidate for President and vowed to enact a Muslim immigration ban if elected. They claim anti-Muslim religious discrimination is the real motivation for the orders restrictions on immigration from six predominately Muslim nations, not the national security concerns articulated in the order itself.

So far, two federal judges, Judge Derrick K. Watson of the U.S. District Court for the District of Hawaii and Theodore D. Chuang of the U.S. District Court for the District of Maryland, have bought that line of reasoning tooth and nail. Both judges were appointed by President Barack Obama.

In his March 15 decision enjoining enforcement of the immigration order Judge Watson acknowledges that the order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion, yet he concludes the order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose. Judge Chuang adopted a similar line of reasoning calling the national security purpose articulated in the order a secondary post hoc rationale.

The two judges have applied the wrong legal standards in evaluating Trumps order. American courts owe great deference to the President on immigration matters.

Kleindienst v. Mandel is a case precisely on point. During the Nixon Administration a group of American university professors challenged the Administrations refusal to grant a visa to a Marxist journalist who had been invited to speak at several university campuses across the country. The professors complained that the visa denial violated their First Amendment rights. The Supreme Court flatly rejected the professors contentions.

In Mandel, the Court acknowledged that the denial of the visa to the foreign journalist implicated the First Amendment rights of the American professors who desired to hear him speak, but said that was not dispositive of the case, because:

the power to exclude aliens is inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers a power to be exercised exclusively by the political branches of government.

The Court resolved the case, not by engaging in a balancing test that pits the purported justification for denying entry to the country against the First Amendment interests of those who desired to interact with the excluded person. Instead, it drew a bright line, admonishing the lower courts not to look behind (i.e. second guess) the exercise of Executive Branch discretion in immigration matters that implicate the First Amendment. Where a facially legitimate and bona fide reason has been articulated for denying an alien entry into the country, the Court instructed the lower courts to uphold the Executive Branch action despite the possibility that the First Amendment rights of Americans may be implicated.

Executive Order 13780 easily passes muster under Mandel. It was issued pursuant to section 212(f) of the Immigration and Nationality Act of 1952, which authorizes the President to deny entry into the United States to any aliens or of any class of aliens that he deems to be detrimental to the interest of the United States. On its face the order articulates legitimate and bona fide national security reasons for its issuance. The order states that conditions in each of the covered countries present heightened threats. It continues: Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organization, or contains active conflict zones. Those are unquestionably facially legitimate and bona fide justifications for the order.

But instead of following the Supreme Courts clear and precise instructions, the two Obama-appointed judges have applied the type of First Amendment balancing test applicable to domestic matters, such as religious displays on public property. That type of test, as the Court made clear in Mandel, is wholly inapplicable to immigration and foreign policy matters.

In short, what Judges Watson and Chuang have done are classic examples of judicial activism. Where Supreme Court precedent doesnt meet the desired outcome, either ignore it, as did Judge Watson, or treat it as if it doesnt fit, as did Judge Chuang. Their improvidently issued injunctions against President Trumps immigration order should not be allowed to stand.

Mr. Boos is the Executive Vice President and General Counsel for Citizens United. He has been a licensed attorney practicing constitutional law since the mid-1990s.

Follow this link:
Immigration Order Injunctions Rest On Flimsy 1st Amendment Grounds - Daily Caller