Tag: first amendment
Rambling Incoherently On War, Trump Threatens Protesters With 'Very Big Force'

Rambling Incoherently On War, Trump Threatens Protesters With 'Very Big Force'

President Donald Trump made a series of inaccurate claims in his remarks on Tuesday, conflating World War I and World War II, incorrectly suggesting he spoke with the governor of California on Monday when it was just after midnight Saturday morning, and asserting—contrary to the First Amendment—that protests, even peaceful ones, can be shut down with “heavy force.”

During remarks to reporters in the Oval Office, Trump was asked when he last spoke with California Governor Gavin Newsom. “

A day ago,” he said Tuesday afternoon, which was three and a half days after the governor confirmed his phone call. Trump also confirmed the call by sending a screenshot to a Fox News reporter. The screenshot read June 7, 1:23 AM.

“Recently, other countries celebrated the victory of World War I, France was celebrating, really,” Trump told troops at Fort Bragg on Tuesday afternoon. “They were all celebrating. The only one that doesn’t celebrate is the USA and we’re the ones that won the war. Without us, you’d all be speaking German right now. Maybe a little Japanese thrown in. But we won the war.”

The United States was part of a coalition during both WWI and WWII. Trump was speaking about WWI, but then claimed, “Without us, you’d all be speaking German right now. Maybe a little Japanese.”

That’s a reference to World War II—Japan was on the side of the Allies, with the U.S., in WWI.

Also on Tuesday, Trump declared that anyone caught protesting his controversial military parade on Saturday will be met with “very heavy force,” despite the First Amendment to the U.S. Constitution clearly protecting political protests.

“We won the war, and we’re the only country that didn’t celebrate it, and we’re going to be celebrating big on Saturday,” Trump claimed. Veterans Day was initially created as Armistice Day to honor those who died in World War I.

“And if there’s any protestor that wants to come out, they will be met with very big force. By the way, for those people that want to protest, they’re gonna be met with very big force. And I haven’t even heard about a protest, but, you know, this is people that hate our country, but they will be met with very heavy force.”

The First Amendment protects both political speech and the right to “petition the government for a redress of grievances.”

Trump did not state “violent protestors,” or “rioters.” He said “any protestor.”

Watch the videos above or at this link.

Reprinted with permission from Alternet.

Media Matters Names Its 'Misinformer Of The Year'

Media Matters Names Its 'Misinformer Of The Year'

The role of the free press, enshrined by the Constitution’s First Amendment, is an essential element of our democracy. The public cannot become informed about the problems facing our country and the efforts to improve or worsen them without robust protections for journalism.

But powerful people hate the light journalism shines on them and the dissent it can spur. A coalition of right-wing billionaires, Republican law enforcement officials, and an authoritarian once and future president are using wealth, lawfare, and government power to silence the press and carry out their political agenda unimpeded. And they are perilously close to succeeding.

Media Matters is naming anti-media intimidation the Misinformer of the Year for 2024 for its chilling effect on essential press freedoms.

ABC News’ agreement to settle Donald Trump’s defamation lawsuit is a foreboding sign of the current media climate and where it may be headed.

Legal experts and executives at ABC News parent company Disney reportedly thought that the outlet would eventually prevail. But its lawyers reportedly feared “litigating against a vindictive sitting president and risking harm to its brand.” They even worried that the suit could “become a vehicle for Mr. Trump and his allies to overturn the landmark First Amendment decision in New York Times v. Sullivan,” The New York Times reported.

If media lawyers are worried that a defamation lawsuit could ultimately demolish the bedrock legal precedent limiting such suits, then that protection functionally no longer applies.

The results of that shift could prove devastating to news outlets large and small and chill speech across the nation.

Trump’s lawyers have already filed a new lawsuit against Iowa pollster Ann Selzer, her polling firm, The Des Moines Register, and the Iowa paper’s parent company Gannett, accusing them of consumer fraud for publishing Selzer’s poll.

Other suits from anyone else who benefits from a cowed press will surely follow.

The purpose of these intimidation tactics — to which we had already been subjected — is to silence adversarial speech. If powerful individuals can force critics to pay a hefty price, they will be much more hesitant to take risks. And those without the financial resources for protracted legal fights will either back down or risk crippling costs. With journalists silenced, crucial stories will go unwritten — and the American public will lose out to right-wing power.

Reprinted with permission from Media Matters.

The 1990 Supreme Court Decision That Could Protect Trump's 'Big Lie'

The 1990 Supreme Court Decision That Could Protect Trump's 'Big Lie'

During the past week, members of the House Select Committee to Investigate the January 6th Attack on the Capitol spent hours detailing the crimes that led up to the riot that ransacked the Capitol building on that first Wednesday of January 2021. The exhibits included testimony from witnesses, copies of written communications, and video clips posted by the rioters showing how they interpreted the reporting of events.

What none of the committee members mentioned was the role that a 1974 midwest melee played in the proceedings. The conditions that would allow former President Donald J. Trump to foment an insurrection that snatched the lives of four civilians and five police officers and injured scores more started their development in an Ohio wrestling match almost 50 years earlier.

At a February 9, 1974 wresting match, Maple Heights High school wrestling star Bob Girardi didn’t want to accept loss; he hit his opponent from Mentor High School. The punch exploded into a mess of violence that sent four Mentor High School wrestlers to the hospital. No one was criminally charged for the riot, but the Ohio High School Athletic Association barred Maple Heights High School — a nine-time state champion — from participating in the next state championship. To get a chance to stay champs, Maple Heights High School sued, leading to a hearing that required the school’s head wrestling coach, Michael Milkovich, to testify.

The day after the hearing, Tim Diadiun, a local newspaper columnist, wrote a column headlined “Maple Beat the Law with the ‘Big Lie’” and accused Milkovich of lying under oath about what happened at the match in order to slide back into contention; Diadiun had been present and witnessed what he saw as Milkovich fomenting the fracas. Milkovich sued Diadiun for libel and the case took 16 years to reach the Supreme Court of the United States as the case of Milkovich v. Lorain Journal Company.

Diadun had the advantage at the high court because, twenty years earlier, American Opinion, a publication of the John Birch Society, ran an article that named Elmer Gertz, a well-known Chicago attorney who represented a police shooting victim’s family against the officer, and called him a Communist with a criminal record. The American Opinion editor published the “Communist” and “convict” labels without verifying them; the editor admitted he relied on the reputation of the author for their accuracy. Attorney Gertz sued for libel and won $50,000 from a jury but the judge set aside the verdict.

After many appellate wranglings, Gertz eventually won $400,000 in compensatory and punitive damages. One of those appellate stops was at the U.S. Supreme Court, where Justice Powell wrote of Gertz’s claim: “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Because of this holding, Diadiun and the other defendants were likely going to prevail at the Supreme Court; the Gertz Court extended refuge to falsehoods, saying some of them deserved protection under the First Amendment “in order to protect speech that matters.”

In other words, it actually didn’t matter what the columnist wrote; as long as it was labeled opinion, it was protected. States and lower courts didn’t like this; they interpreted the Gertz decision as creating privilege tantamount to “a wholesale defamation exemption for anything that might be labeled 'opinion.”

Diadiun lost because the Supreme Court set out to change that rule in the Milkovich case. The Supreme Court explicitly rejected blanket protection for any article labeled opinion when Chief Justice William Rehnquist, writing for the majority, said the Gertz decision never intended that comprehensive exception “since "expressions of 'opinion' may often imply an assertion of objective fact.”

It seemed like a win for accurate journalism and public opining, but it ultimately wasn’t.

On one hand, the Milkovich decision narrowed the First Amendment shield for opinion writers; they must write the truth, a reasonable requirement. As long as those facts within an opinion piece aren’t “provable as false” — meaning the language cannot be proved true or false by a core of objective evidence — a statement is constitutionally protected. This category of non-provable opinion includes subjective beliefs based on true facts.

On the other hand, the Court limited free speech protections, saying that statements that “cannot reasonably [be] interpreted as stating actual facts” — meaning “loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining” an actual fact, or where the “general tenor of the article” isn’t to be believed — are also protected. At the time of the decision, Jane E. Kirtley, a lawyer and executive director of Reporters Committee for Freedom of the Press, predicted disaster to the New York Times. The decision, she said, “ironically is going to encourage irresponsible commentary at the expense of well-reasoned analysis.”

Kirtley was right. Crazy claims — like China or Italy interfering in our 2020 election through wifi or the late Hugo Chávez maneuvering a Democrat into the White House from the grave — ultimately get protection (no one’s litigated these claims) because no reasonable person would ever believe them.

Attorneys for the former president and right-wing media stars avail themselves of theMilkovich defense in courtroom wrestling matches, claiming that the content in question may be false, but it’s not actionable because it isn’t believable. They started with softball cases. When Stephanie Clifford, a woman who credibly claimed to have had an affair with Donald Trump, sued him for calling her a “con job” in a 2018 tweet, the court held, citing Milkovich, that “...it would be clear to a reasonable reader that the tweet was not accusing Clifford of actually committing criminal activity.

The Milkovich holding helped Fox News host Tucker Carlson defeat a defamation claim filed by Karen McDougal, the model who said she had an affair with Donald Trump. McDougal alleged Carlson defamed her when he described her request for money to keep her story quiet as the crime of “extortion.”

But the most recent use of Milkovich is a big-league problem and the most disturbing; it’s been used to prop up not the ‘Big Lie’ that Tim Diadiun wrote about in 1974, but the Big Lie about the 2020 presidential election. Lawyers pulled the case out when Dominion Voting Systems filed defamation claims against Fox News in 2020 for reports that their machines miscounted votes in favor of then-candidate Joseph Biden. Fox lost a motion to dismiss the lawsuit under the Milkovich defense, but the court will still hear the case on its merits and the defense can pop up again and succeed, barring any other settlement or resolution.

Just like it did in 1974, an unwillingness to accept defeat and inartful grappling with facts conspired to create a brawl, one that would take years to dissect, understand, and resolve. Through the Milkovich decision, that insistence on a win and the events that followed it brought the country to the brink of a coup -- but not because the Supreme Court justices didn’t care about the truth.

Both the Sullivan and Milkovich courts had a faith in the public's capacity to discern factual falsehoods that we don’t — or at least we shouldn’t — today. Both courts thought that inaccuracies deserve constitutional protection because the general public is responsible enough to both assess and improve the flow of information on matters of public concern. But it’s not.

We’re not that responsible, as this week’s hearings demonstrated. The ability of the "marketplace of ideas" ability to adequately determine facts depends on the “reasonable reader” or consumer of news. That isn't what happens anymore. Judging by the videos of Capitol rioters shown during the hearing this week, rather than that reasonable reader acting as a check on lies and disinformation, unreasonable readers respond to unreasonable speakers and put American democracy at risk.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

The Informed Critic Locked Up By Trump Files Suit Against Him

The Informed Critic Locked Up By Trump Files Suit Against Him

Reprinted with permission from DCReport

Remember “Lock Her Up,” the wannabe dictator Donald Trump’s rallying cry about Hillary Clinton?

Trump did lock someone up — and in clear violation of the First and Fourth Amendments: Michael Cohen, his longtime lawyer, fixer and the man who paid Stormy Daniels $130,000 to keep quiet about her barely a minute intimacy with Donald.

Now Cohen is suing Trump, then Attorney General William P. Barr and six other individuals. For all eight of them the facts and circumstances are just awful.

Cohen’s federal lawsuit asserts that Trump “issued specific directives and guidance to his co-defendants that govern the treatment” of Cohen as well as others Trump perceived as enemies.

“At his [Trump’s] direction,” the lawsuit alleges, Cohen “was remanded back to prison and subjected to great indignities when he was unlawfully incarcerated.”

Proving that Trump was personally engaged, while easy to believe, may prove difficult.

Throughout his career as a con artist Trump has avoided email, tossed out calendars at the end of each month and, as president, destroyed official documents in violation of federal law.

The National Archives created a team to recover ripped up papers from the Oval Office wastebasket to piece them back together.

Running Roughshod Over Rights

The suit is a so-called Bivens action, named for a 1971 Supreme Court decision against six unnamed federal agents who violated a suspect’s Fourth Amendment rights against unreasonable search and seizure. The high court, voting 5-4, held that since every wrong must have a remedy in law, allowing Bivens and others like him to sue when their Fourth Amendment rights were violated was a remedy implied by the Framers.

Justices Hugo Black and Harry Blackmun, in separate dissents, expressed worries that Bivens actions would flood the federal courts with cases.

Of course, their fears would be realized only if federal agents were routinely running roughshod over Fourth Amendment and other Constitutional rights. Following Justices Black’s and Blackmun’s line of reasoning, had they prevailed, it would have signaled to federal agents that they could indeed run roughshod over constitutional rights.

Cohen has an ironclad First Amendment case for prior restraint of his rights of speech and press even if he can’t prove that Trump personally ordered him thrown into the modern dungeon at Otisville prison, where Jewish prisoners are concentrated.

Forbidden To Speak

Cohen lawyers Andrew Laufer and Jeff Levine describe an extraordinary addition to the boilerplate contract for home release with an ankle monitor. “The very first condition within the agreement specifically forbade Mr. Cohen from speaking to or through all media, including publishing his tell-all book about then President Trump,” Laufer and Levine wrote.

Here’s the exact wording showing irrefutable proof of First Amendment prior restraint:

No engagement of any kind with of the media, including print, tv, film, books, or any other form of media/news. Prohibition from all social media platforms. No posting on social media and a requirement that you communicate with friends and family to exercise discretion in not posting on your behalf or posting any information about you. The purpose is to avoid glamorizing or bringing publicity to your status as a sentenced inmate serving a custodial term in the community.

Lawyers Laufer and Levine call the speak-no-criticism-of Donald language “a prima facie violation of Mr. Cohen’s constitutional rights under the First Amendment as well as in retaliation for his public comments and proposed publication of his tell-all book critical of President Trump.” They are absolutely right about that.

Cohen asked the probation officers who summoned him for some explanation of this extraordinary provision and whether it could be “refined,” his complaint says. Cohen was told to wait while federal probation officer Adam Pakula left to consult with higher-ups. About 90 minutes later Cohen was taken back into custody.

Solitary Confinement

He was held in solitary for 16 days – just for asking a more than reasonable question about an obvious violation of his Constitutional rights. If this case ever gets to trial, you should expect that federal prisons officials will say that solitary confinement was used to protect Cohen from the coronavirus. How convenient for them.

Where are the howls from Fox, Wall Street Journal editorial writers, and those Republicans who rail against tyranny?

Cohen was still in solitary two weeks later when senior U.S. District Judge Alvin K. Hellerstein ordered Cohen’s immediate release from custody. Judge Hellerstein said Cohen’s return to prison was “retaliatory in response” to block Cohen’s “First Amendment rights to publish a book” criticizing Trump.

Federal prison officials and contractor GEO Group, whose top executive was a prominent Trump supporter and seeker of more taxpayer money for private prisons, slow-walked the judge’s order. Cohen spent two more days locked up in solitary the lawsuit asserts. After a Cohen victory at trial or more likely in settlement talks to avoid a trial that implicit contempt for a judicial order will likely prove costly.

But unless a judge, or a settlement agreement, requires the eight defendants to pay out of their own pockets for what they did under the guise of lawful authority we taxpayers will foot the bill for their un-American behavior.

Team Trump’s Lawlessness

Two months after being freed Cohen’s book Disloyal: A Memoir was where he laid out his solid case about Trump’s dishonesty and contempt for the rule of law.

The shut-up condition was totally lawless, but also consistent with Trump’s oft-stated view that no one should be allowed to write about him in ways he dislikes. And then there’s his campaign vow, aimed at journalists who refuse to be sycophants, “to open up libel laws, and we’re going to have people sue you like you’ve never got sued before.”

While Trump broke that promise, like almost every other one he made to con his way into office, legal attacks on honest journalism in America are growing, as are state laws designed to restrict or even shut down honest reporting, as explained well here.

Trump Fatigue

We have also seen cops, taking their cue from Donald, target reporters for police violence in New York City, Minneapolis and Portland, Ore.

To those with Trump fatigue, me included, it would be easy to just say meh and move on. Who cares that yet another lawsuit has been filed against Donald?

But Trump is still trying to find a way back into power. Worse, people as competent as they are dangerous to liberty are scheming to do what Trump tried and failed to pull off, turning America into a dictatorship.

Cohen’s lawsuit is a reminder of how this isn’t abstract, this isn’t a potential. Cohen’s lawsuit serves as a scary reminder that of a clear and present danger to all of us and to our liberties.

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