FIRST YEAR FIRST AMENDMENT
Las Vegas, Acrylic on Panel, 26.5" x 35", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
As women around the country marched in unity and protest on the first anniversary of Mr. Trump's swearing an oath to protect and defend the Constitution (his last lie before becoming POTUS), I attended the annual Board of Directors retreat for my local ACLU affiliate. http://www.acluutah.org/ I was assigned to present on recent First Amendment issues. My handout, below, was collected from a number of public sources.
-WHAT IS A CAKE?
-THE HECKLER’S VETO
-A TARGET RICH ENVIRONMENT
-ATTACKS ON THE PRESS
-Fake News Awards
-KNOW YOUR RIGHTS: SOCIAL MEDIA BLOCKING
Following are sections from the recent North Carolina case discussing the First Amendment's application to partisan gerrymandering:
Common Cause v. Rucho, United States District Court, Middle District of North Carolina, January 9, 2018 https://www.brennancenter.org/sites/default/files/legal-work/CCLWVvRuchoMemorandumOpinion_01.09.18.pdf
Rather than seeking to advance any democratic or constitutional interest, the state legislator responsible for drawing the 2016 Plan said he drew the map to advantage Republican candidates because he “think[s] electing Republicans is better than electing Democrats.” . . . But that is not a choice the Constitution allows legislative mapdrawers to make. Rather, “the core principle of [our] republican government [is] that the voters should choose their representatives, not the other way around.” Ariz. State Leg., 135 S. Ct. at 2677.
Regarding the First Amendment, Common Cause Plaintiffs assert that the 2016 Plan’s disfavoring of voters who previously opposed Republican candidates or associated with non-Republican candidates or parties amounts to viewpoint discrimination and passes constitutional muster only if narrowly tailored to serve a compelling state interest. . . . . According to Common Cause Plaintiffs, the General Assembly’s use of individuals’ past voting history to assign such individuals to congressional districts with the purpose of advantaging Republican candidates on a statewide basis constitutes evidence of viewpoint discrimination. Common Clause Plaintiffs further contend that Legislative Defendants have provided no compelling interest justifying such viewpoint discrimination.
For the reasons that follow, we reject Legislative Defendants’ standing and justiciability arguments. We further conclude that the 2016 Plan violates the Equal Protection Clause because the General Assembly enacted the plan with the intent of discriminating against voters who favored non-Republican candidates, the plan has had and likely will continue to have that effect, and no legitimate state interest justifies the 2016 Plan’s discriminatory partisan effect. We also conclude that the 2016 Plan violates the First Amendment by unjustifiably discriminating against voters based on their previous political expression and affiliation. Finally, we hold that the 2016 Plan violates Article I by exceeding the scope of the General Assembly’s delegated authority to enact congressional election regulations and interfering with the right of “the People” to choose their Representatives. . . .
[begins at page 152 of 205] Next, we consider Plaintiffs’ claims under the First Amendment. The First Amendment, through the Due Process Clause of the Fourteenth Amendment, prohibits states from making any law “abridging the freedom of speech.” U.S. Const. amend. I. Partisan gerrymandering—again, “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power,” Ariz. State Leg., 135 S. Ct. at 2658—implicates First Amendment rights because “political belief and association constitute the core of those activities protected by the First Amendment,” Elrod v. Burns, 427 U.S. 347, 356 (1976). The First Amendment “has its fullest and most urgent application to speech uttered during a campaign for political office.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339–40 (2010) (internal quotation marks omitted). To that end, the First Amendment protects “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Williams, 393 U.S. at 30–31 (emphasis added).
Several lines of precedent bear on the application of the First Amendment to partisan gerrymanders. To begin, by favoring one set of political beliefs over another, partisan gerrymanders implicate the First Amendment prohibition on “viewpoint discrimination.” See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995); Vieth, 541 U.S. at 314 (Kennedy, J., concurring in the judgment) (“First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views.” (emphasis added)). The First Amendment prohibits the government from favoring or disfavoring particular viewpoints, and, therefore, “[t]he government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger, 515 U.S. at 829. “At its most basic, the test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed.” Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (Kennedy, J., concurring in part and concurring in the judgment). Viewpoint discrimination is “presumptively unconstitutional,” Rosenberger, 515 U.S. at 830 (internal quotation marks omitted), and therefore subject to “strict scrutiny,” McCullen v. Coakley, 134 S. Ct. 2518, 2530 (2014) (explaining that a governmental action amounting to viewpoint discrimination survives strict scrutiny only if the action is “the least restrictive means of achieving a compelling state interest”).
Relatedly, by seeking to dilute the electoral speech of supporters of disfavored parties or candidates, partisan gerrymandering runs afoul of the First Amendment’s prohibition on laws that disfavor a particular group or class of speakers. Citizens United, 558 U.S. at 340 (explaining that “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content”). The First Amendment prohibits such laws because “[b]y taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice.” Id. at 340–41. In the context of political speech, in particular, the Supreme Court repeatedly has applied the First Amendment’s prohibition on “restrictions on certain disfavored speakers” to strike down electoral laws that disfavor a particular group of speakers. Id. at 341; First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 784 (1978). And when, as is the case with a partisan gerrymander, a restriction on one group of speakers “suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended.” Belotti, 435 U.S. at 785–86 (footnote omitted). Like viewpoint discrimination, governmental actions that discriminate against a particular group or class of speakers are subject to “strict scrutiny.” See Citizens United, 558 U.S. at 340.
Third, by disfavoring a group of voters based on their prior votes and political association, partisan gerrymandering implicates the First Amendment’s prohibition on burdening or penalizing individuals for engaging in protected speech. Vieth, 541 U.S. at 314 (2004) (Kennedy, J., concurring in the judgment) (explaining partisan gerrymandering violates “the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views”). The Supreme Court has explained that the government cannot “penalize” a person for engaging in “constitutionally protected speech or associations” because such indirect regulation of speech would “allow the government to produce a result which it could not command directly.” Perry v. Sinderman, 408 U.S. 593, 597 (1972) (internal quotation marks and alterations omitted). The Supreme Court’s First Amendment retaliation jurisprudence represents a specific application of the general principle that even when the law affords the government the authority to make discretionary decisions—like firing or promoting an employee or allowing public use of a governmental facility—the government may not exercise such discretion “in a narrowly partisan or political manner.” Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 870–71 (1982) (plurality opinion). For example, although the government retains discretion to curate public school libraries, “[i]f a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books.” Id.; see also id. at 907 (Rehnquist, J., dissenting) (“I can cheerfully concede all of this.”). Courts have distilled a three-prong test from the Supreme Court’s First Amendment retaliation jurisprudence, examining whether (1) the plaintiff’s “speech was protected;” (2) “the defendant’s . . . retaliatory action adversely affected the plaintiff’s constitutionally protected speech;” and (3) “a causal relationship exists between [the plaintiff’s] speech and the defendant’s retaliatory action.” See, e.g., Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000). Examining these considerations, the Supreme Court repeatedly has struck down as violative of the First Amendment government actions that burden or penalize an individual or group for engaging in political speech. See, e.g., Rutan v. Republican Party of Ill., 497 U.S. 62, 65 (1990) (concluding that First Amendment prohibits government employers from making “promotion, transfer, recall, and hiring decisions involving low-level public employees . . . based on party affiliation and support”); Elrod, 427 U.S. at 373 (holding that First Amendment prohibits government officials from discharging or threatening to discharge lower-level public employees based on their political affiliation).
Finally, partisan gerrymandering implicates First Amendment precedent dealing with electoral regulations that have the potential to burden political speech or association. See, e.g., Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 460 U.S. 780 (1983). The First Amendment demands judicial scrutiny of state election regulations because regulations that “govern the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affect—at least to some degree—the individual’s right to vote and his right to associate with others for political ends.” Anderson, 460 U.S. at 788. Because states’ “important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions,” id., the Supreme Court applies “sliding-scale” scrutiny to state election regulations, see Burdick, 504 U.S. at 433–34. In particular, “[a] court considering a challenge to a state election law must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Id. at 434 (quoting Anderson, 460 U.S. at 789, Tashjian v. Republican Party of Conn., 479 U.S. 208, 213–14 (1986)). Under this test, “[e]lection regulations that impose a severe burden on associational rights are subject to strict scrutiny.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008). By contrast, “[i]f a statute imposes only modest burdens . . . then ‘the State’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.’” Id. at 452 (quoting Anderson, 460 U.S. at 788).
Applying that test, the Court has “repeatedly upheld reasonable, politically neutral regulations that have the effect of channeling expressive activity at the polls.” Id. at 438 (emphasis added). By contrast, the Supreme Court has repeatedly struck down as violative of the First Amendment facially neutral electoral regulations that had the effect of burdening particular parties, candidates, or groups of voters. See, e.g., Tashjian, 479 U.S. at 225 (concluding that state’s enforcement of statute requiring closed primaries, against the will of the Republican party, violated First Amendment); Anderson, 460 U.S. at 806 (striking down state candidate filing deadline because it posed unjustified burden on third-party candidates and voters who supported such candidates, where the “interests of the voters who chose to associate together” for political ends constituted the Court’s “primary concern”). These cases reflect the governing principle that “in exercising their powers over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections,” including enacting “election laws [that] so impinge upon freedom of association as to run afoul of the First and Fourteenth Amendments.” Kusper v. Pontikes, 414 U.S. 51, 56–57 (1973).
Against these many, multifaceted lines of precedent, the First Amendment’s applicability to partisan gerrymandering is manifest. How can the First Amendment prohibit the government from disfavoring certain viewpoints, yet allow a legislature to enact a districting plan that disfavors supporters of a particular set of political beliefs? How can the First Amendment bar the government from disfavoring a class of speakers, but allow a districting plan to disfavor a class of voters? How can the First Amendment protect government employees’ political speech rights, but stand idle when the government infringes on voters’ political speech rights? And how can the First Amendment ensure that candidates ascribing to all manner of political beliefs have a reasonable opportunity to appear on the ballot, and yet allow a state electoral system to favor one set of political beliefs over others? We conclude that the First Amendment does not draw such fine lines. . . .
WHAT IS A CAKE?
Masterpiece Cakeshop v. Colorado Civil Rights Commission: What follows is a Washington Post article that addresses some of the complexity of the competing constitutional issues (equal protection, speech, religion). Colorado's public access law prohibits discrimination based on sexual orientation. The owner of the Cakeshop challenged its constitutionality after the Colorado Civil Rights Commission agreed with the couple.
It may be the most important case for LGBT people since the Supreme Court’s 2015 ruling that marriage is a constitutional right afforded to same-sex couples. It also may be the most important case since then for religious people who object to gay marriage but do business in the public square.
The Supreme Court on Tuesday heard arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In 2012, a same-sex couple, Charlie Craig and David Mullins, was denied a wedding cake by Lakewood, Colo., baker Jack Phillips. The baker said he would sell the gay couple other kinds of cakes, but he could not in good conscience sell them a wedding cake, since same-sex weddings violate his religious beliefs.
The couple filed a complaint with the Colorado Civil Rights Commission, which found that the cakeshop violated the state’s anti-discrimination law. When the state’s Supreme Court agreed with the gay couple, the baker appealed to the Supreme Court.
In a move that some believe threatened to roll back Obama-era protections for gay and lesbian people, the Department of Justice in September filed a brief on behalf of Phillips, arguing that it forced him to create expression for and participate in a ceremony that violates his religious beliefs and invades his First Amendment rights.
The Alliance Defending Freedom, an advocacy group representing the baker, and the American Civil Liberties Union, which is representing the gay couple, both agree that important issues are at stake. Both sides, however, disagree as to precisely what is at stake.
At the heart of the baker’s case, his lawyers argue, is a battle over expression: not religious, per se, but artistic.
“Phillips is willing to serve any and all customers. He objects only to expressing certain messages through his custom art,” said ADF Senior Counsel Jim Campbell in a statement. “Jack should have that basic freedom.”
Any law that would otherwise compel him is bad for artists, said ADF’s Kristen Waggoner. Such “laws are being used not only to silence, not only to punish, but to ruin creative professionals that don’t agree with the government’s ideology on marriage.”
The First Amendment protects expressions that are made without the use of words. A Supreme Court decision in the 1995 Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston case held that “the Constitution looks beyond written or spoken words as mediums of expression.”
A group of nearly 500 artists filed a brief ahead of Tuesday’s arguments reminding the court that “artistic expression — regardless of the medium employed — finds full protection under the First Amendment.” They are concerned that the case could open the door to the “state forcing [artists] to convey objectionable messages through their art.”
Some might scoff at the idea that a cake, sans verbiage, could be considered a sincere artistic expression. But the court is going to take it seriously. In fact, says Walter Olson, constitutional scholar and senior fellow at the Cato Institute, the lasting influence is not primarily which side wins, but where to draw the line between what is and is not expression.
“It’s hard to take cake seriously — it’s just cake,” he says. But it’s part of spectrum of a wide range of wedding services. “Most people agree that a chauffeur is not communicating a message, and nearly everyone agrees that the person performing the ceremony is communicating lots and lots of messages.”
Floyd Abrams, a celebrated First Amendment lawyer, signed a brief arguing that the defense of expression doesn’t matter in this case. “Artists who sell their creations to the public are, like other commercial actors, bound by a variety of generally applicable laws, including laws that forbid businesses to refuse service on certain grounds.”
Indeed, for Louise Melling of the ACLU, this case is neither about artistic expression nor messaging. It’s about discrimination.
“Charlie and Dave walked into the cakeshop and were turned away because of who they are,” she said in a statement. “The stakes could not be higher.”
Freedom of expression “does not protect the right to discriminate,” Melling told The Washington Post, citing precedent-establishing court cases, such as the landmark 1968 Newman v. Piggie Park Enterprises. When Maurice Bessinger, head of the National Association for the Preservation of White People, was sued for refusing to allow an African American in his restaurant, he argued that he was compelled by his religious beliefs to oppose integration. The court ruled against Bessinger.
Abraham Hamilton III, general counsel to the American Family Association, is wary of arguments comparing Phillips’s refusal to make a wedding cake for gay people to racial discrimination. “As an African American man myself, I think to conflate issues concerning marital preferences as something as easily identifiable as skin color is offensive.” The reason Hamilton believes “the two are not remotely on the same page” is that skin color is a “readily discernible characteristic” and sexual orientation is not.
Ryan T. Anderson, senior research fellow at the Heritage Foundation, says it would be wrong to compare Phillips’s principled refusal to bake a wedding cake with any kind of racial discrimination. He said that while there are “reasons for supporting [heterosexual marriage] that have nothing to do with hatred or condescension,” the same cannot be said of opposition to integration.
“When the Supreme Court struck down bans on interracial marriage, it did not say that opposition to interracial marriage was based on ‘decent and honorable premises’ and held ‘in good faith by reasonable and sincere people here and throughout the world.’ It did not say it because it could not say it,” he said.
Anderson noted that the Supreme Court decision that legalized gay marriage included a statement in the majority opinion from Justice Anthony M. Kennedy that the First Amendment protects religious people who may “advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
Where faith leaders fall
. . . More than 500 Christian leaders signed a statement declaring that “religious freedom should never be used as a justification for discrimination.”
“For me as a Christian pastor,” Jennifer Butler, Presbyterian minister and CEO of the advocacy group Faith in Public Life who signed the statement, told The Washington Post, “what’s at stake is the heart of the Christian faith. We can’t be following Jesus if we’re slamming doors in our neighbor’s faces.”
Butler said she believes that Phillips’s supporters are trying to win back political ground from LGBT activists.
“Conservatives are still fighting the culture wars,” she said. “They don’t like the fact they’ve lost on gay marriage, so they want to chip away at protections for LGBT people. What’s really sad about that is they’re using a beautiful principle like religious freedom to denigrate other people.”
AFA’s Hamilton sees arguments like Butler’s as a “bit of hyperbole,” and even “emotional alarmism.”
“The Founding Fathers, in their establishment of our country, enshrined religious liberty — and I’d include freedom of conscience — in our Constitution,” he said. “If the court rules against Jack Phillips, it will set the nation reeling backwards toward things the Founders didn’t want.”
The United States Conference of Catholic Bishops also believes the Masterpiece case poses potentially dire consequences for American religious life. In a brief, the bishops urged the court to uphold an individual’s right to follow his conscience.
Catholic priest James Martin, whose recent book, “Building a Bridge,” encourages open dialogue between LGBTs and religious people, agrees that Christian ethics protects the rights of individual consciences, adding that “it also protects the rights of those who feel marginalized.” Martin also thinks it’s important to consider whether “religion is being used as a mask for simple homophobia?”
“Once we started inserting religious dimensions into what is essentially a commercial transaction, we run into complicated questions of discrimination,” said Martin. “I don’t envy the Supreme Court on this one.”
While roughly 4 in 10 Americans support permitting wedding-based businesses to refuse their services to same-sex couples, 53 percent oppose it, according to a recent poll by Public Religion Research Institute. Majorities of Republicans (67 percent) and white evangelicals (65 percent) believe these businesses should be allowed to refuse services to gay couples.
“One of the most notable features of American attitudes on this issue is the racial divide among Protestant Christians,” says Robert Jones, CEO of PRRI. While white evangelicals strongly believe that businesses providing wedding services should be allowed to refuse services to same-sex couples, a majority of black Protestants remain opposed to these religiously based service exemptions.
THE HECKLER’S VETO
This discussion quotes from my September 2017 blog post addressing the importance of protecting unpopular speech, speech on the margins.
It is taxing, at times nearly impossible, to recognize their right to advocate xenophobic, racist, bigoted and faux-Chiristian/religious views. The debate, however, allows us to study, reject and counter these views and their holders, a process that hopefully results in their marginalization to the extreme fringes where they live and belong: from time to time, social advancement comes with setbacks. The more Trump engages in false equivalency and refuses to denounce these haters, the more they praise their chief executive for his advocacy and endorsement. And the more Trump isolates himself to the margin. Dismaying perhaps, but a win-win nonetheless—his public approval (and disapproval) ratings are headed the right direction. And by the way, protecting haters’ right to engage in such speech preserves the rights of us all to engage in a nearly limitless array of speech, some of which others, even a majority, may disagree with.
Anyone, including protesters and counter-protesters, who threatens, incites or engages in physical violence or otherwise violates the law at or during an event (including candidates for national office) should be arrested and prosecuted. Where permits are required, those applicants with demonstrated history of physical violence ought to be carefully scrutinized and properly denied under the police power.
As I explained in a prior post, however, the First Amendment is, in my view, the most significant line of defense for preserving our form of open self-governance:
My personal opinion is the First Amendment contains the most significant protections and assurances toward open self-governance, and is [h]ugely more important than the putative constitutional checks and balances. We all know politics and greed (power, money) often prevail over oaths of office in the three separate but equal political branches of government, undermining the idea that said branches serve as legitimate checks on the others’ power and abuses. . . .
I don’t want to discount the importance of the ballot as a constitutional check on government power and its abuses—absent sabotage it can and has served the people well. But the democratic process is and continues to be undermined by gerrymandering, Russia and, shall we say, laws and tactics meant to suppress the vote of those who would throw those bastards out of office.
Charlottesville, the ACLU’s role on behalf of those on the extremes and its continued effort at content-neutral advocacy of the anti-majoritarian principles preserved within the Bill of Rights will be dissected and repackaged for years to come. Central to the debate, which is not a new one, is the deployment of limited resources, the extent to which the underlying constitutional principle is at risk, and the likelihood that absent the ACLU’s involvement the desired speaker will have his/her day in court:
A recurrent theme of late is hate speech on public college campuses and the anticipated and organized counter-protests: Shapiro; Coulter; Yiannopoulos; Horowitz; Bannon. Antifa.
Berkeley’s latest is a perfect example of the heckler’s veto. If a public institution of higher learning that fosters academic freedom chooses to accommodate student organizations, it must remain neutral in providing those speakers the organizations invite (and their respective viewpoints) a safe but open forum. Crush the egg shells. Stop worrying about the tender sensibilities of students who are or may be offended by the subject matter or content of the speech. If they are not interested in hearing others’ points of view, extreme, obscene and/or detestable as they may be, they shouldn’t attend. If students are interested in not being offended and only in confirmation bias, go to a tech school or a university that is not within a public system. Learn to navigate the world in a bubble.
Protect the speech. Call out the National Guard. But protect the speech.
A TARGET RICH ENVIRONMENT
This section, taken from another of my blog posts, discusses Trump's blather about loosening the libel laws to make it easier (for him) to sue the media.
Even if Trump could, through some mystical power, “open up” the libel laws to make it easier for him to sue the “fake” media, truth is an absolute defense to a claim of libel. Whenever he opens his mouth Trump demonstrates himself unable to recognize facts or tell truth even when doing so might help him. In contrast, the media has the ability to fact check what he says and, excepting Fox and its comrades in propagandistic misinformation, fervidly gathers and banks verifiable evidence. All to say, in the legal realm, where facts and truth must be defended with evidence, Trump can’t challenge the media on the merits of its Trump-related reporting with any hope of prevailing.
I hope the Trumps didn’t deplete too much of the national treasury on expensive DC lawyers to research just how to go about “changing the First Amendment” when they “looked into it” (after all, what would they do with all that free time if the government could no longer afford to pay for their travel?). Interested parties who know something, anything, about the United States government and history, took fifth grade civics, and/or know how to Google might recall the existence of Article V of the Constitution. A quick refresher:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment . . . shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
One might ask why loosening the libel laws would require changing the First Amendment. I guess it wouldn’t if Trump packed the Supreme Court with idiots elevated via a confirmation process conducted (which means bungled) by an equally mentally challenged majority of the Senate. Until recently, such a specter didn’t seem all that plausible.
Short of that [apocalyptic clown car], I’m guessing the First Amendment Speech and Press Clauses have sufficient status as the most compelling checks on power under the Constitution to prevent proponents from garnering the two-thirds and three-fourths. My personal opinion is the First Amendment contains the most significant protections and assurances toward open self-governance, and is yugely more important than the putative constitutional checks and balances. We all know politics and greed (power, money) often prevail over oaths of office in the three separate but equal political branches of government, undermining the idea that said branches serve as legitimate checks on the others’ power and abuses. A few recent examples? Bush v. Gore; Chaffetz and the House Oversight Committee; emoluments; Nunes and United States Permanent Select Committee on Intelligence; Sessions.
I don’t want to discount the importance of the ballot as a constitutional check on government power and its abuses — absent sabotage it can and has served the people well. But the democratic process is and continues to be undermined by gerrymandering, Russia and, shall we say, laws and tactics meant to suppress the vote of those who would throw those bastards out of office.
Libel and slander — defamation — are recognized under personal injury law as harm arising from false publications. The law of libel (written) and slander (verbal) does this delicate dance with the First Amendment. The United States Supreme Court has recognized the need to avoid the “chilling effect” libel laws could have on debate, dialogue and the dissemination of truth about public affairs, public officials and public figures. “Opening up” libel laws the way Trump says he wants would result in self-censorship, discouraging both lawful and unlawful conduct. Individuals and the media, fearing they were wrong (or distrusting authority’s competence or willingness to find them correct), would err on the side of remaining silent, which silence, in my opinion, should be mostly limited to people responding to police interrogations. Trump’s inability to self-regulate the endless absurdities his “very smart brain” excretes would condemn him to lawsuits ad infinitum.
Political speech enjoys the highest level of protection under the First Amendment. The Court imposes a high constitutional standard to give “breathing space” to the political process. In order to ensure debate is “uninhibited, robust, and wide open,” the Court established a very difficult standard for public officials and public figures to meet in order to recover for libel or slander. In a unanimous 1964 decision the United States Supreme Court ruled in favor of the “failing” New York Times, holding that a “public official” must show that the newspaper acted “with ‘actual malice’ — that is, with actual knowledge that it was false or with reckless disregard” for truth. “[A] little falsehood must be tolerated so that citizens will not engage in self-censorship for fear of criminal prosecution or a ruinous civil suit.”
As it should the First Amendment protects various additional forms and types of speech, particularly in the political realm, such as opinion, fair comment and criticism and parody and satire which blur the lines between truth and outrageousness. See Hustler v. Falwell, for which we all owe that smut peddler who spewed verbal sewage Larry Flynt (not to be confused with Jerry Falwell) an extreme debt of gratitude for championing First Amendment rights after he parodied Jerry Falwell’s first sexual experience. As offensive as that was to many, including Mr. Falwell whose feelings were hurt — along with his mother’s I suspect, and possibly a goat’s — mocking leaders and political figures is an important form of dialogue that enjoys First Amendment protection. Trump should be careful what he asks for if he wishes to continue to worship at the feet of the Limbaughs, O’Reillys, Hannitys, Joneses, Murdochs, Putins and Dutertes.
As grandiose as Trump imagines himself to be, he can’t “change” the First Amendment, even if doing so is on his to-do list of despotic goals. And any claim that he can simply verifies George Will’s latest diagnosis of a very dangerous mind. Mr. Trump simply does not know what it means to know something.
ATTACKS ON THE PRESS
Flake News: Chris Cillizza, CNN Editor-at-Large. identifies and comments on what he believes are the 20 most important quotes from Jeff Flake's recent speech on the Senate floor:
"For without truth, and a principled fidelity to truth and to shared facts, Mr. President, our Democracy will not last."
Flake, right from the start of the speech, is talking about BIG stuff — like the future of democracy. And, he's right: Without an agreed-upon set of truths — and a group of people trusted to fairly judge whether people adhere to those truths or not — democracy starts to fall apart.
"2017 was a year which saw the truth — objective, empirical, evidence-based truth — more battered and abused than any other in the history of our country, at the hands of the most powerful figure in our government."
As of last week, President Trump had said more than 2,000 things that were either totally false or misleading, according to a count kept by the Washington Post. That's more than 5.5 factually inaccurate or incorrect statements a day. Every day.
"It was the year in which an unrelenting daily assault on the constitutionally-protected free press was launched by that same White House, an assault that is as unprecedented as it is unwarranted."
It's important to harp on this point from Flake. All White Houses — and all politicians — don't love the way the media covers them. They want the coverage to focus much more on what they've done as opposed to what they've failed to do. But, what Trump has done is well beyond that sort of territory. He has embarked on a comprehensive and purposeful attempt to vilify and discredit the media for his own political purposes.
"It is a testament to the condition of our democracy that our own president uses words infamously spoken by Josef Stalin to describe his enemies."
This is the line that has drawn the most attention — and controversy — from Flake's speech. "Sen. Flake, turn on the news," tweeted Republican National Committee Chair Ronna Romney McDaniel. "It's wall-to-wall with biased coverage against @POTUS. He has every right to push back. Comparing the leader of the free world to murderous dictators is absurd. You've gone too far."
"The president has it precisely backward — despotism is the enemy of the people. The free press is the despot's enemy, which makes the free press the guardian of democracy."
This is a Republican senator — albeit one who is retiring — basically calling the Republican President of the United States a "despot." Stunning. Even in an age in which that word has lost almost all meaning.
"When a figure in power reflexively calls any press that doesn't suit him "fake news," it is that person who should be the figure of suspicion, not the press."
CORRECT. And, an important point: Trump uses the phrase "fake news" to describe stories he doesn't like. That, of course, doesn't make them fake.
"Mr. President, so powerful is the presidency that the damage done by the sustained attack on the truth will not be confined to the President's time in office."
If Trump's presidency ended today, there is NO doubt that his lasting legacy on the office, our politics and our country would be his disdain for facts and his attempts to vilify the media for trying to do its job. The idea — forwarded by Trump — that objective truth simply doesn't exist and everything is a matter of opinion and perspective is hugely corrosive for democracy.
"Here in America, we do not pay obeisance to the powerful — in fact, we question the powerful most ardently."
One of my favorite quotes about journalism comes via Finley Peter Dunne: "The job of the newspaper is to comfort the afflicted and afflict the comfortable."
"No matter how powerful, no president will ever have dominion over objective reality."
Trump is putting this argument to the test. He may not have dominion over objective reality but he is working very hard to make the case that objective reality doesn't even really exist.
"A major difference between politicians and the free press is that the press usually corrects itself when it gets something wrong. Politicians don't."
This is especially true with Trump. While the media has made errors in the Trump era, those mistakes have been addressed and there have been consequences for them. Trump has said more than 2,000 things that are misleading or false and hasn't once apologized for doing so or stopped saying the thing that isn't true.
"No longer can we compound attacks on truth with our silent acquiescence. No longer can we turn a blind eye or a deaf ear to these assaults on our institutions."
While much of Flake's speech is meant for Trump, this line is clearly targeted at Flake's Senate colleagues — many of whom throw up their hands and say nothing every time Trump lies or commits some new outrage. That reaction isn't enough in the face of such an existential threat, according to Flake.
"An American president who cannot take criticism — who must constantly deflect and distort and distract — who must find someone else to blame — is charting a very dangerous path."
Trump's thin-skinnedness is somewhat remarkable given that he has spent almost his entire adult life in the public eye.
"2018 must be the year in which the truth takes a stand against power that would weaken it."
Flake is actively calling for a revolt against Trump by his own party — in an election year no less!
"Together, united in the purpose to do our jobs under the Constitution, without regard to party or party loyalty, let us resolve to be allies of the truth — and not partners in its destruction."
I am going to make a prediction here: The Senate won't be throwing aside party loyalty any time soon.
"To be very clear, to call the Russia matter a 'hoax' — as the President has many times — is a falsehood."
Already in 2018, Trump has sent out three separate tweets deriding the Russia investigation as a "hoax."
"Every word that a president utters projects American values around the world."
This is both a) objectively true and b) something that Trump appears to either not grasp or not care to grasp.
"Between the mighty and the modest, truth is the great leveler."
My favorite line of the speech — by far.
"Not only has the past year seen an American president borrow despotic language to refer to the free press, but it seems he has in turn inspired dictators and authoritarians with his own language."
We tend to focus on the impact Trump's words have on American society and our politics. But, as Flake catalogs in his speech, it's quite clear that Trump's norm-busting is being watched by authoritarians the world over as they seek to diminish the idea of objective truth and put their own political goals into the vacuum created.
"In our own country, from the trivial to the truly dangerous, it is the range and regularity of the untruths we see that should be cause for profound alarm, and spur to action."
This is spot-on. What has amazed me in the first year of Trump's presidency is not his willingness to fib about big things but the little white lies he tells about stuff that's laughably easy to check — and in so doing prove him wrong.
"If we compromise the truth for the sake of our politics, we are lost."
Partisanship and politics has become not only the over-arching concern for lots of politicians but the only concern. The reaction by the White House to Trump's "shithole" comments — this will play well with our base! — was the epitome of this politics-over-everything view.
Fake News Awards: This New York Times article discusses Trump's long-awaited Fake News Awards:
WASHINGTON — President Trump — who gleefully questioned President Barack Obama’s birthplace for years without evidence, long insisted on the guilt of the Central Park Five despite exonerating proof and claimed that millions of illegal ballots cost him the popular vote in 2016 — wanted to have a word with the American public about accuracy in reporting.
On Wednesday, after weeks of shifting deadlines, and cryptic clues, Mr. Trump released his long-promised “Fake News Awards,” an anti-media project that had alarmed advocates of press freedom and heartened his political base.
“And the FAKE NEWS winners are …,” he wrote on Twitter at 8 p.m.
The message linked, at first, to a malfunctioning page on GOP.com, the Republican National Committee website. An error screen read: “The site is temporarily offline, we are working to bring it back up. Please try back later.”
When the page came back online less than an hour later, it resembled a Republican Party news release. Headlined “The Highly Anticipated 2017 Fake News Awards” and attributed to “Team GOP,” it included a list of Trump administration accomplishments and jabs at news organizations presented in the form of an 11-point list.
The “winners” were CNN, mentioned four times; The New York Times, with two mentions; and ABC, The Washington Post, Time and Newsweek, with one mention apiece.
Taken as a whole, Mr. Trump’s examples of grievances came as no surprise to anyone who has read his complaints about the media on Twitter.
The various reports singled out by Mr. Trump touched on serious issues, like the media’s handling of the investigation by the special counsel Robert S. Mueller III into the Trump campaign’s possible ties to Russia, and frivolous matters, like the manner in which journalists conveyed how the president fed fish during a stop at a koi pond on his visit to Japan.
The first item on the list referred not to a news article but to a short opinion piece posted on The Times’s website at 12:42 on the night Mr. Trump became president: “The New York Times’ Paul Krugman claimed on the day of President Trump’s historic, landslide victory that the economy will ‘never’ recover,” the entry read.
What Mr. Krugman actually wrote was this: “If the question is when markets will recover, a first-pass answer is never.” Mr. Krugman concluded his election night take by predicting that a global recession was likely, while adding the caveat, “I suppose we could get lucky somehow.”
Three days later, Mr. Krugman retracted his prediction of an economic collapse, saying he overreacted.
The next target was Brian Ross of ABC News, who was suspended by the network last month because of an erroneous report.
ABC apologized for and corrected Mr. Ross’s report that Michael T. Flynn, the former national security adviser, planned to testify that Mr. Trump had directed him to make contact with Russian officials when Mr. Trump was still a candidate.
In fact, Mr. Trump had directed Mr. Flynn to make contact after the election, when he was president-elect.
At the time of Mr. Ross’s suspension, Kathleen Culver, the director of the Center for Journalism Ethics at the University of Wisconsin-Madison, said that the president was likely to use the mistake as ammunition against his political opponents — an observation that seemed borne out by the “Fake News Awards.”
The third entry on the GOP.com list went after CNN, a favorite target of the president, for reporting incorrectly last month that the president’s eldest child, Donald Trump Jr., had received advance notice from WikiLeaks about a trove of hacked documents that it planned to release during last year’s presidential campaign.
In fact, the email to the younger Mr. Trump was sent a day after the documents, stolen from the Democratic National Committee, were made available to the general public. The correction undercut the main thrust of CNN’s story, which had been seized on by critics of the president as evidence of coordination between WikiLeaks and the Trump campaign.
Another entry on the list took on The Washington Post, claiming that it had “FALSELY reported the President’s massive sold-out rally in Pensacola, Florida was empty. Dishonest reporter showed picture of empty arena HOURS before crowd started pouring in.”
The reporter in question was David Weigel, who had posted the photo in question on his Twitter account before quickly deleting it. The Post itself did not publish the photo or a report on the size of the crowd at the Trump event. The “Fake News Awards” entry, however, conflated a reporter’s tweet with the publication itself. It also omitted the fact that Mr. Weigel deleted his tweet and apologized for it when it was pointed out to him that it was misleading. Further, it did not mention that Mr. Trump had called for Mr. Weigel to be fired over the tweet. (He was not.)
The content of the 11-point list was perhaps less notable than its premise: a sitting president using his bully pulpit for a semi-formalized attack on the free press.
In two subsequent tweets on Wednesday night, Mr. Trump added that there were “many great reporters I respect” and defended his administration’s record in the face of “a very biased media.”
The technical anticlimax seemed a fitting end to a peculiar saga that began in November when Mr. Trump floated the bestowing of a “FAKE NEWS TROPHY.”
The idea matured into the “Fake News Awards,” which the president initially said in a Jan. 2 Twitter post he would give out on Jan. 8 to honor “the most corrupt & biased of the Mainstream Media.”
With the date approaching, Mr. Trump wrote on Twitter that the event would be moved to Wednesday because “the interest in, and importance of, these awards is far greater than anyone could have anticipated!”
From the beginning, the awards were the sort of Trumpian production that seemed easy to mock but difficult to ignore. Members of the news media joked about the speeches they would prepare, the tuxedos and gowns they would fetch. It would be an honor, they said, just to be nominated.
Here, it seemed, was the opéra bouffe climax of Mr. Trump’s campaign against the media, a bizarro-world spectacle that both encapsulated and parodied the president’s animus toward a major democratic institution.
Late-night comedy shows created satirical Emmys-style advertising campaigns to snag what some referred to as a coveted “Fakey.”
“The Late Show With Stephen Colbert” bought a billboard in Times Square, nominating itself in categories like “Least Breitbarty” and “Corruptest Fakeness.” Jimmy Kimmel, who has emerged as a Trump bête noire, called it “the Stupid People’s Choice Awards.”
Politico reported that the awards could even pose an ethical issue for White House aides, with some experts arguing that the event would breach a ban on government officials using their office to explicitly promote or deride private organizations.
And press advocates cringed at the prospect of a gala dedicated to the phrase “fake news,” which has already helped corrode trust in journalism in the United States and around the world. In response to Mr. Trump’s endeavor, the Committee to Protect Journalists this month recognized the president among the “world leaders who have gone out of their way to attack the press and undermine the norms that support freedom of the media.”
Two Republicans from Arizona, Senator John McCain and Senator Jeff Flake, denounced Mr. Trump’s anti-press attacks, with Mr. Flake noting in a speech on the Senate floor on Wednesday that the president had borrowed a term from Stalin to describe the media: “enemy of the people.”
The buzz around the president’s latest anti-press stunt has contributed to a larger shift in American attitudes toward the press.
In a study released this week by Gallup and the Knight Foundation, 66 percent of Americans who were surveyed said most news organizations blurred opinion and fact, up from 42 percent in 1984. “Fake news” was deemed a threat to democracy by a majority of respondents.
Mr. Trump’s list did not mention BuzzFeed, a media outlet that drew his ire last year when it published a salacious and largely unsubstantiated intelligence dossier that purported to lay out how Russia had aided the Trump campaign. On Jan. 8, President Trump’s longtime lawyer, Michael D. Cohen, filed a defamation lawsuit in federal court against Fusion GPS, the firm behind the report, as well as a separate lawsuit against BuzzFeed in state court.
Mr. Trump also did not mention Michael Wolff, the author of the slashing, if error-specked, best seller, “Fire and Fury: Inside the Trump White House,” although a lawyer working on his behalf had sent a letter demanding that the publisher Henry Holt and Company halt publication of the book.
“Fire and Fury” did not come out until Jan. 5, so perhaps the author will receive a prominent mention next January, if the president sees fit to give out the 2018 Fake News Awards.
KNOW YOUR RIGHTS: SOCIAL MEDIA BLOCKING
The following is taken from the local affiliate's website:
The ACLU of Utah believes official social media pages for elected leaders and government organizations are public forums, and that blocking individuals may be an unconstitutional restriction on their right to free speech under the First Amendment.
Have you been blocked on social media?
Check out this brand new "Know Your Rights" update from the ACLU of Utah about what you can do if elected officials, their offices, or government organizations block you from official social media platforms.
You should also read the national ACLU's recent blog post on this topic: "Can a Government Official Block You on Twitter?"
Here are three steps that you can take to protect your First Amendment rights online.
Step 1) Send the ACLU of Utah a screenshot or photograph with the evidence that you were blocked on a social media page by an elected leader or government agency. Be sure to include the name and/or address of the social media page. Email those screenshots to email@example.com
Please note that asking for or receiving these materials does not imply that the ACLU of Utah is pursuing legal action on your behalf or in any case. This information is requested by the ACLU of Utah exclusively for documentation and record-keeping purposes.
Step 2) Contact the office of the elected leader or government agency and request your access be unblocked. You can include references to the ACLU of Utah’s August 2017 press release in your communications or the three recent legal cases from Virginia, Indiana, and Hawaii described in the PDF.
Step 3) When contacting an elected leader, their offices, or government organizations, request a copy of the social media policy guidelines for the page that blocked you. If social media policy guidelines are not available, urge the office or person to create social media guidelines.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed nearly 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in lastamendment.com are hers.