First Amendment – Page 2

Trump tries to game the legal system in his bogus Iowa lawsuit; plus, a ‘60 Minutes’ update

For a brief moment Monday, it looked like Donald Trump had given up on his ridiculous lawsuit against The Des Moines Register and pollster Ann Selzer.

You may recall that Trump claimed they had committed consumer fraud because of a poll taken just before Election Day showing Kamala Harris with a 3-point lead in the Hawkeye State. Notwithstanding Selzer’s sterling reputation, Harris ended up losing Iowa by 13 points, which is about what you’d expect. She was wrong, and the error may have hastened her retirement, but the notion that she put out a false poll to help Harris is transparently ludicrous.

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Well, Monday’s good news didn’t last. It turns out that Trump withdrew his suit from the federal courts and refiled it in state court one day before an Iowa anti-SLAPP law was scheduled to take effect, William Morris reports for the Register. SLAPP stands for “strategic lawsuits against political participation,” and it’s designed to give judges a reason to throw out garbage suits such as Trump’s. No such luck since Trump beat the deadline.

This isn’t the first time Trump has sought to have his Iowa case heard in state court. Apparently his lawyers believe the federal courts are unlikely to tolerate his foolishness. To its credit, the Register’s corporate owner, Gannett, has hung tough. A spokesperson for the paper, Lark-Marie Anton, said in a statement:

After losing his first attempt to send his case back to Iowa state court, and apparently recognizing that his appeal will be unsuccessful, President Trump is attempting to unilaterally dismiss his lawsuit from federal court and refile it in Iowa state court. Although such a procedural maneuver is improper, and may not be permitted by the court, it is clearly intended to avoid the inevitable outcome of the Des Moines Register’s motion to dismiss President Trump’s amended complaint currently pending in federal court.

The Foundation for Individual Rights and Expression, which is representing Selzer, said on social media that Trump’s attempt to move the case to state court was “a transparent attempt to avoid federal court review of the president’s transparently frivolous claims,” according to The Washington Post.

Meanwhile, there have been some developments in one of Trump’s other legal attempts to intimidate the press. According to media reporter Oliver Darcy, all seven correspondents at CBS News’ “60 Minutes” have sent a message to their corporate owner, Paramount, demanding that it stand firm in fighting Trump’s lawsuit over the way the program edited an interview with Harris last October. Darcy writes:

They pointedly expressed concern that Paramount is failing to put up a fierce and unrelenting fight in the face of Trump’s lawsuit over the program’s Kamala Harris interview, which has been widely denounced by the legal community as baseless, according to the people familiar with the matter. They said Trump’s allegations against the storied program are false and ripped his lawsuit as baseless. And they warned in no uncertain terms that if Paramount were to settle with Trump, it will stain the reputation of the company and undermine the First Amendment.

Trump is claiming consumer fraud in a Texas federal court under the state’s Deceptive Trade Practices Act, alleging that “60 Minutes” edited its interview with Harris to make her appear more coherent, thus helping her campaign. “60 Minutes” has defended the editing as normal and routine. The interview has been nominated for an Emmy in the editing category, no doubt to send a message to the White House.

Unfortunately, Darcy reports that Paramount continues to lurch toward a settlement with Trump in order to pave the way for federal approval of a merger with Skydance Media.

Trump’s court victory over the AP may be provisional, but it could set the stage for something worse

Trump meets the press. 2019 photo by the Trump White House.

A three-judge panel of the U.S. Court of Appeals in Washington has ruled that, at least for now, the White House can exclude The Associated Press from coverage of presidential events in most venues. The 2-1 ruling puts on hold a decision by a lower court in favor of the AP.

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The decision is 55 pages long, and I’ve simply scanned it for a few highlights. But it appears that the court’s main argument is grounded in the number of media organizations that would like to gain access to President Trump’s events. It’s not so much that the White House is kicking out the AP as it is that they’re letting someone else in instead. Here’s how Judge Neomi Rao puts it in her majority decision:

The White House is likely to succeed on the merits because these restricted presidential spaces are not First Amendment fora opened for private speech and discussion. The White House therefore retains discretion to determine, including on the basis of viewpoint, which journalists will be admitted. Moreover, without a stay, the government will suffer irreparable harm because the injunction impinges on the President’s independence and control over his private workspaces.

In a strongly worded dissent, Judge Cornelia Pillard writes:

In granting a stay, my colleagues assert a novel and unsupported exception to the First Amendment’s prohibition of viewpoint-based restrictions of private speech — one that not even the government itself advanced….

Make no mistake as to why it matters that the panel majority accepts these theories. In the short term, the court allows the White House to rely on viewpoint to exclude the AP from the Press Pool pending a final decision on the merits, a process that typically takes months. And, looking further ahead, if any merits panel were to accept those theories, the result would be a Press Pool — and perhaps an entire press corps — limited during Republican administrations to the likes of Fox News and limited to outlets such as MSNBC when a Democrat is elected.

As you may recall, the Trump regime banned the AP from many of its events after the wire service refused to go along with President Trump’s absurd insistence that the Gulf of Mexico be referred to as the “Gulf of America.” Map services from Apple, Microsoft and Google quickly toed the line, as did several news organizations; the AP, though, held firm.

But as Zach Montague and Minho Kim report for The New York Times, Trump changed the facts on the ground, possibly making it easier for the the president to prevail in a lawsuit brought by the AP. Most notably, the regime ended the practice of allowing the White House Correspondents’ Association to determine which news outlets would be included in the press pool.

The White House now has the discretion to decide for itself. And though announcing that the AP was being banned might not withstand constitutional scrutiny, saying that the pool will include NewsMax, Breitbart and Catturd, and “oh, sorry, there are no more slots” is an assertion that might hold up. It’s a complicated decision, since the majority ruled that the AP must be allowed into press briefings where there is some give-and-take with the president but may be excluded from merely observational events, such as those that take place in the Oval Office.

Needless to say, this is fairly disastrous for democracy since it allows Trump to decide who will cover him. Excluding the AP is particularly outrageous since so many news outlets are dependent on the wire service for coverage of national and international affairs; indeed, the service provides news to about 15,000 media organizations around the world. It is for that reason that the AP had always been included in the press pool.

The AP’s own story on the stay, by media reporter David Bauder, calls Friday’s stay “an incremental loss.” But as Judge Pillard notes, it could take months for the full Court of Appeals to render a decision, and then there’s the prospect of the case winding up before the Supreme Court. If nothing else, the Court of Appeals’ endorsement of viewpoint discrimination should not be allowed to stand. It would be yet another lurch down the road to authoritarianism if the high court ultimately decides that Trump has found a way to censor the AP without violating the First Amendment.

More: As I’ve mentioned before, we now have access at Northeastern to Claude, a leading AI chatbot from Anthropic. Though I have deeply mixed feelings about AI, I also think it’s worth experimenting with. I asked Claude to produce a 1,200-word summary of the decision, and you can read it here. I can tell you that reading Claude’s handiwork did lead me to go back and add a tweak to this post.

SCOTUS won’t consider a teen’s failed attempts to wear an anti-transgender T-shirt to school

Liam Morrison wearing the second of his banned T-shirts in the spring of 2023. Handout photo via Nemasket Week.

Last October, I wrote that I would be surprised if the U.S. Supreme Court agreed to hear a middle school student’s appeal of a ruling that local officials had a right to ban him from wearing an anti-transgender T-shirt. But the way this court is heading, I have to say that maybe I am a little surprised.

The court declined to hear the case, reports Lawrence Hurley for NBC News. That should be the end of the line for Liam Morrison, who in the spring of 2023 — when he was a seventh-grader — was sent home from school by authorities in Middleborough, Massachusetts, for wearing a T-shirt that said “There Are Only Two Genders” and then again for wearing a shirt that said “There Are Only (Censored) Genders.”

Here is the post I wrote last October, when he and his high-profile supporters appealed to the court. It’s got all the background that you need. Meanwhile, let me explain how close a call this is.

About a month ago, the court ruled against an online Catholic school in Missouri that sought to become the country’s first religious charter school — that is, a public school. As Amy Howe reported for SCOTUSblog, the vote was 4-4, with Justice Amy Coney Barrett recusing herself. If Barrett had taken part and voted with the majority, the Catholic school would have won.

Likewise, Morrison’s case has been cloaked in the garb of religious freedom, and he was being represented by a Christian-right law firm. It only takes four justices to agree to hear a case, a process known as granting a writ of certiorari, or “granting cert.”

Thus all it would have taken to get Morrison’s case before the court was the support of the same four justices who ruled in favor of the Catholic school in the Missouri case. As for whether Morrison could have won, Barrett herself has some pretty strong ties to the religious right, though she’s also emerged as something of an independent thinker.

What that suggests is that Morrison’s case was exceptionally weak, and the Supreme Court has no interest in overturning precedents leaving disciplinary decisions in the hands of public school authorities.

More: I initially failed to note that Justices Clarence Thomas and Samuel Alito said they would have heard the case. Because of course they would.

Public broadcasting giant WNET doesn’t want you to see this Art Spiegelman cartoon

WNET, the New York public broadcasting giant, doesn’t want you to see this cartoon — at least not on public television.

The New York Times reports (gift link) that 90 seconds have been butchered out of a documentary about the artist Art Spiegelman that is scheduled to be shown as part of the “American Masters” series on PBS. It is, as you can see, wildly unflattering to President Trump, and it comes at a moment when Trump is trying to eliminate all funding for public media.

WNET vice president Stephen Segaller told Times reporter Marc Tracy that the 9-year-old drawing of Trump, with feces and flies on his head and a swastika superimposed over the image, was a “breach of protocol,” adding, “I don’t think we’d have made a different decision if it had been a year earlier.” Yeah, probably not. Last year at this time, Trump was leading President Joe Biden in the polls, so the incentive not to antagonize him was just as strong then as it is now.

Spiegelman was quoted as saying, “It’s tragic and appalling that PBS and WNET are willing to become collaborators with the sinister forces trying to muzzle free speech.”

But at least you can see Spiegelman’s cartoon in the Times. And here.

A New England Muzzle Award for Stephen Miller, who enabled Rümeysa Öztürk’s arrest for writing an op-ed

The assault on freedom of expression being waged by the Trump White House is so wide-ranging that it’s hard to know where to begin. From threats against universities to bogus lawsuits targeting news organizations, it is clear that President Trump and his thuggish allies want to silence criticism and force civil society to cower in fear.

But there is one action in particular that stands out for its cruelty as well as its blatant disregard for the First Amendment’s guarantee of freedom of speech and of the press. And that’s the arrest and detention of Rümeysa Öztürk, who, at long last, was freed over the weekend. It also happens to have played out in New England, from her Soviet-style snatch-and-grab by black-clad ICE goons on the Tufts campus, where she’s a Ph.D. student, to her release at the hands of a federal judge in Vermont.

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The anti-First Amendment intent of the government’s actions was underscored by U.S. District Judge William Sessions III in Burlington, Vermont, who said that he could find no reason for detaining Öztürk other than her co-authoring an op-ed piece in The Tufts Daily that was critical of Israel and sympathetic to the pro-Palestinian cause.

“That literally is the case. There is no evidence here … absent consideration of the op-ed,” Sessions said, according to an account by Liz Crampton and Kyle Cheney in Politico. “Her continued detention cannot stand.”

Which is why this whole sordid affair is worthy of a New England Muzzle Award. In fact, it may be the most worthy Muzzle since I started handing them out at The Boston Phoenix 27 years ago.

But who should be the winner? My choice is Stephen Miller, the White House deputy chief of staff and the dark lord of Trump’s anti-immigration policies. Over the years, Miller has made his hatred for non-white immigrants clear, and though he generally directs his rhetoric at those who are undocumented, his overall contempt for people who don’t look like him permeates the Trump gang, starting at the very orange-hued top.

For example, here’s something that Miller wrote about Muslims for his high-school newspaper, according to a profile by William D. Cohan for Vanity Fair:

Blaming America for the problems of countries whose citizens would rather spend time sewing blankets to cover women’s faces than improving the quality of life is utterly ludicrous.

And in a speech to his high-school classmates, Miller once said: “I will say and I will do things that no one else in their right mind would do.”

Now, is it fair to cite things that Miller wrote and said in high school to build a case against him today? In his case, the answer is yes, because he devolved into exactly the sort of adult that he said he would nearly a quarter of a century ago. I mean, if you want something recent, he called for the suspension of habeas corpus — a basic protection against false imprisonment guaranteed not just by the Constitution but by Magna Carta — on Friday, as Steve Vladeck writes in his newsletter, One First.

ICE goons grab Rümeysa Öztürk near Tufts.

As for Öztürk, her ordeal is not over yet. A Turkish citizen, she was attending Tufts legally on a student visa. That visa was revoked by the State Department on the grounds that her activism could create a “hostile environment for Jewish students” and that she might support “a designated terrorist organization,” according to an account by Rodrique Ngowi and Claire Rush in The Associated Press. But the State Department’s own case cites nothing except the op-ed, which merely argues that the university administration should uphold resolutions passed by the faculty senate.

In other words, Öztürk could still be deported for nothing more than expressing her views, which the First Amendment protects for anyone in the United States, regardless of immigration status. That would be an outrage, and if the Trump administration can find a judge who’s willing to go along, a second Muzzle Award might be looming on the horizon.

But at least Öztürk is free to defend herself, no longer locked up in a Louisiana detention facility, where she reportedly experienced multiple asthma attacks without access to her medication.

Sadly for all of us, it’s Miller Time. We can only hope that his day of reckoning is coming soon.

No, the arrest of Judge Dugan is not unprecedented. Plus, DOJ targets leaks, and Bezos’ original sin

Judge's gavel — Illustration produced by AI using DALL-E

It’s important at a historical moment like this to keep our heads about us. Social media was filled with dark warnings about authoritarianism on Friday after the FBI arrested Milwaukee County Circuit Court Judge Hannah Dugan and charged her with illegally helping an undocumented immigrant avoid being detained by federal agents. I even saw a quote attributed to Hitler.

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We should leave it to the legal system to determine whether Judge Dugan broke the law or not. But, to their credit, a number of news organizations noted that the Dugan case is remarkably similar to that of Massachusetts District Court Judge Shelley Joseph. Joseph was charged by federal authorities in 2019 with obstruction of justice after she helped an undocumented immigrant escape out the back of her courtroom when she learned that the feds were waiting to take him into custody.

Charges against Joseph were dropped in 2022 after she agreed to a state investigation into her conduct. As of late 2024, her case was still wending its way through the disciplinary system.

Continue reading “No, the arrest of Judge Dugan is not unprecedented. Plus, DOJ targets leaks, and Bezos’ original sin”

Northeastern’s Joseph Aoun adds his voice to a statement condemning Trump’s war on higher education

Northeastern University’s president, Joseph Aoun, has added his voice to a strong statement from college and university leaders opposing the Trump administration’s unprecedented assault on their institutions. Madison Evangelist has the details at The Huntington News, our independent student newspaper.

The statement, titled “A Call for Constructive Engagement,” has been signed by 416 education leaders as of 11 a.m. Those signing include Harvard president Alan Garber, whose defiance of Trump has made his university a national symbol of resistance. Other local signers are Melissa Gilliam, president of Boston University; Sally Kornbluth, president of MIT; Jay Bernhardt, president of Emerson College; Marissa Kelly, president of Suffolk University; and Marty Meehan, president of the University of Massachusetts.

The statement, sponsored by the American Association of Colleges and Universities, begins:

As leaders of America’s colleges, universities, and scholarly societies, we speak with one voice against the unprecedented government overreach and political interference now endangering American higher education. We are open to constructive reform and do not oppose legitimate government oversight. However, we must oppose undue government intrusion in the lives of those who learn, live, and work on our campuses. We will always seek effective and fair financial practices, but we must reject the coercive use of public research funding.

For those of us who are part of the Northeastern community, Aoun’s action is welcome news. My students and I have talked about how quiet the administration has been about Trump’s depredations, and I’ve been hoping we’d hear more at some point. Well, here it is.

And not that Harvard needs any more kudos, but it was really its refusal to go along with Trump’s authoritarian demands that stiffened the backbones of university leaders everywhere.

Earlier:

Fun with the First Amendment: Why Sarah Palin’s lawyers are happy, and why Deborah Lipstadt isn’t

Sarah Palin. Photo (cc) 2021 by Gage Skidmore.

Two quick observations about First Amendment law before I get back to grading.

First, I suspect that lawyers for Sarah Palin are perfectly happy to have lost their libel suit against The New York Times, and that they would have been equally happy if they had won. What they wanted was a clean verdict — not another muddle that might have resulted in yet a third trial.

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Now the case can start making its way toward a possible Supreme Court appeal, where Palin’s lawyers can argue that the “actual malice” standard of Times v. Sullivan (1964) should be overturned or substantially weakened. The standard holds that public officials must prove knowing falsehood or reckless disregard for the truth, a standard that was later extended to public figures.

As New York Times reporter David Enrich makes clear in his new book, “Murder the Truth,” Palin’s attorneys are part of a cabal of right-wing lawyers who have taken aim at the Sullivan standard — never mind that it serves to protect the conservative media just as much as it does the mainstream press.

Fortunately, the court indicated recently that there may be no more than three justices, and possibly just two, who are inclined to revisit Sullivan. Still, every time you open up a path to weakening the First Amendment, you need to hold your breath.

Second, if you haven’t read this train wreck of an interview with Holocaust scholar Deborah Lipstadt, I recommend it. Isaac Chotiner of The New Yorker spoke with Lipstadt after her recent comments that she at least partly supports Donald Trump’s attempts to deport international students who’ve expressed sympathy for the Palestinian cause, including Mahmoud Khalil of Columbia University and Rümeysa Öztürk of Tufts University.

I just want to pick up on one exchange:

Chotiner: There were some really terrible instances of antisemitism after the war in Gaza began, but now we are actually in a political environment where an American President is using antisemitism as an excuse to literally pick people up off the street for writing op-eds.

Lipstadt: Freedom of speech is freedom of speech. And I’m a stalwart supporter of freedom of speech. In other countries where they’ve outlawed Holocaust denial, I’ve spoken out against that. Freedom of speech is freedom of speech. Incitement is something else. I’m not a lawyer, and I’m not going to get into what that is.

Now, I’m not a lawyer, either, but I do teach First Amendment law to undergraduates. And the great thing about the Supreme Court is that it often writes with stunning clarity. Incitement is defined in Brandenburg v. Ohio (1969) in a way that anyone can understand it, ruling that speech was protected even in the case of a Ku Klux Klan leader who stood up in front of a crowd and demanded “revengeance” against Black people and Jews. The reason was that he was not inciting the crowd to commit violence right there and then. Here’s how the court put it:

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Thus the court reached the end of a journey that began with Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. ruled that speech may not be banned unless it presented a “clear and present danger.”

Unfortunately for Charles Schenck, the court decided that his anti-draft advocacy during World War I did indeed constitute such a danger, so it was off to prison for him. But the Schenck decision was an improvement over what had come before, and it paved the way for stronger protections in the years to come, culminating with Brandenburg.

As for Lipstadt, she claims to be unqualified to comment on something that every high school graduate ought to know. Then again, she may not have realized she was violating two important rules: (1) Never agree to an interview with Isaac Chotiner unless you’re thoroughly prepared; (2) never agree to an interview with Isaac Chotiner.

A local access operation sues town officials in Stoughton, Mass., over alleged abusive behavior

If you page through the Facebook feed of the Stoughton Media Access Corp., you’ll find the sort of fare that is typical of local access — a guide to Boston’s best museums, the town election, Town-Wide Cleanup Day and the like.

What you won’t find is any sign of a lawsuit the access group has filed against the town and three of its officials charging them with civil-rights violations and defamation, among other things. You can read all the gory details at Universal Hub, where Adam Gaffin has a thorough report. Essentially, though, SMAC, as the access operation is known, is charging that the officials threatened the operation and demanded that it stop carrying any content in opposition to a proposal to build a new elementary school. Gaffin writes:

In its suit, filed in Boston federal court, the Stoughton Media Access Corp. charges the town manager and the two select-board members have tried to block the channel from televising meetings related to the school project, demanded it run only content that supports the proposal, yelled at volunteer camerapeople, tried to get authority over the hiring and firing of the non-profit’s board members and attempted to block its funding, which comes from fees paid by the two cable companies that serve the town.

The officials named in the suit are Town Manager Thomas Calter and Select Board members Joseph Mokrisky and Stephen Cavey.

In addition to the school controversy, the suit alleges that Mokrisky went ballistic over a video that failed to give him credit for the development of a new park. “The SMAC videographer denied Mokrisky’s accusation that the video was edited to be unfavorable to Mokrisky,” according to the suit. “The SMAC videographer was brought to tears as a result of Mokrisky’s verbal assault.”

Local access is a vital part of the news ecosystem in most communities, providing live feeds of public meetings as well as a platform for residents to produce their own programs. Stoughton does not have an independent news organization, although it is served by a Patch and by The Enterprise, a Gannett-owned daily in nearby Brockton. Neither outlet has reported on SMAC’s lawsuit.

Judge in AP case stands up for the First Amendment; plus, protest coverage, and news you can’t use

By ruling in favor of The Associated Press in its lawsuit to overturn a ban imposed by the Trump White House, U.S. District Judge Trevor McFadden applied the First Amendment in a straightforward, entirely predictable manner. The Trump administration may appeal, but it would be shocking and deeply disturbing if McFadden’s decision isn’t upheld.

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First, McFadden ruled that though the White House can exercise broad discretion in terms of which news organizations are allowed access to the Oval Office, Mar-a-Lago and other venues, it must do so in a neutral manner. The White House, by explicitly stating that the AP was being banned for continuing to refer to the Gulf of Mexico by its proper name rather than the “Gulf of America,” was engaging in unconstitutional “viewpoint discrimination,” McFadden wrote. He continued:

The analysis is straightforward. The AP made an editorial decision to continue using “Gulf of Mexico” in its Stylebook. The Government responded publicly with displeasure and explicitly announced it was curtailing the AP’s access to the Oval Office, press pool events, and East Room activities. If there is a benign explanation for the Government’s decision, it has not been presented here.

The judge also rejected the Trump administration’s claim that the AP was seeking special privileges. First Amendment precedent holds that a news organization has no right to demand, say, an interview with a public official, or to be called on at a news conference. The White House claimed that’s what the AP was seeking.

Continue reading “Judge in AP case stands up for the First Amendment; plus, protest coverage, and news you can’t use”