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Tag: first amendment
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.

Texas Gov. Greg Abbott

New Texas Law Shields Online Hate Speech, Terror Threats, And Holocaust Denial

Reprinted with permission from Daily Kos

It's been a busy couple of weeks for the one-star state. In addition to gaining the cooperation of the Trump-flavored Supreme Court to strip away women's rights, Gov. Greg Abbott has been right on top of the threat to the coronavirus, promising to protect COVID-19 from any effort to slow its spread. It's that kind of dedication that has allowed Texas to both seize the top spot from Florida in new cases and hospitalizations, and support the local mortuary industry with more than 400 deaths per day.

Truly, for Texas energy speculators and mortuary truck rentals, Abbott has brought on a golden age. But even though the governor spent much of his day complaining that President Joe Biden insisting that people get vaccinated was a violation of the rights of businesses—unlike executive orders that forbid companies from requiring that people get vaccinated—he did have time for other things.

One of those things was signing HB 20, a bill that severely limits the ability of large social media platforms to remove disinformation, harmful propaganda, hate speech, and incitement of violence.

This bill is a response to the mythical claims that social media sites are somehow suppressing conservative speech, despite repeated analysis that shows that these sites actually selectively promote conservative voices and place conservatives in positions of power, while actively soliciting for more Republican content. Despite all this, Republicans are certain that, were it not for some "shadow banning" and other devious actions, the brilliant words of conservative tweeters would surely be getting many, many more likes.

And since modern Republican statements are indistinguishable from disinformation about an ongoing pandemic, shot through with vile racism, xenophobia, and misogyny, the bill makes sure that all of those things are protected.

On first reading, the text of the bill might seem to be offering some level of protection. For example, here's what it says about the kind of things that social media can remove. Platforms can take down or edit material that is:

"the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment; directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge; or is unlawful expression."

That long list at the end of this passage—including color, disability, sex, etc.—might seem as if it's offering the kind of protections usually afforded when platforms take down hate speech. But look again. All of those other words are just window dressing. The bill actually allows sites to remove such speech only if it "consists of specific threats of violence." This is the very narrowest definition of incitement to violence. It's the kind of very narrow requirement that has protected both KKK leaders and Tucker Carlson when calling for violence or other harmful acts against groups, without making a specific threat,

By prohibiting social media platforms from removing text that doesn't feature a specific threat, they have created a "must carry" situation, one in which the social media platforms that fit their definition (which seems to be Facebook, Twitter, YouTube, Instagram, TikTok, Pinterest, and Snapchat, but could expand to Google, Apple, and others thanks to some broad language) can not remove hate speech or disinformation, no matter how malignant.

To see how intentional this result is takes no more than looking at the amendments that were rejected.

  • Here's one that would have allowed sites to take down posts that promoted "any international or domestic terrorist group or any international or domestic terrorist acts."

That amendment was rejected.

  • Here's another that would have at least allowed sites to take down a post that "includes the denial of the Holocaust."

That amendment was rejected.

  • Here's a third that would have allowed sites to remove information that "promotes or supports vaccine misinformation."

Of course that amendment was rejected.

Seriously. Texas just passed a law (and Abbott just signed it) which prohibits social media sites from removing hate speech, or posts that promote terrorism, or intentional misinformation about vaccines, orholocaust denial.

And it doesn't stop there. Because Texas doesn't just require that sites leave these posts intact: the state also prohibits platforms from "censoring" these posts in any way. That includes "demonetize, de-boost, restrict, deny equal access or visibility to ..." That requirement means that not only do sites have to carry a post, no matter how vile, they have to promote it and pay for it equally with other posts.

So, if someone in Texas were to post a YouTube video that was full of holocaust denial, revived every antisemitic claim in history, and called for driving Jews out of the country and burning down synagogues—but didn't mention a specific time and place for people to gather with torches—YouTube would not only be forbidden from removing it, they wouldn't be allowed to add any warning, would have to promote it equally with other videos, and would have to pay the creator if it got enough racists to watch.

As the tech industry group Chamber for Progress puts it: "This law is going to put more hate speech, scams, terrorist content, and misinformation online."

Naturally, platforms and organizations have already announced lawsuits, mostly focused on the idea that the Texas law redefines social media platforms as "common carriers." It's unlikely that any of these platforms will ever be bound by this law.

Even so … it gives great insight into the type of speech Republicans are really out to promote.

Tucker Carlson

Why Is Tucker Carlson Still On The Air?

Reprinted with permission from Daily Kos

Honestly, a better question might be "Why is Tucker Carlson not in jail?"

On Friday night, Carlson was back on Fox News to welcome COVID-19-"truther" Alex Barenson to his program. Together, the two said that "masks are useless" and nothing more than a symbol that someone is obedient to the government, and claimed that mask mandates have no intention other than to make people scared, and are doing "psychological damage." They then moved on to say that the vaccines are "declining in effectiveness very quickly," and that the truth about vaccines was being blocked by "tremendous financial pressure."

Decades ago, the Supreme Court determined that the United States should live with a very expansive view of the First Amendment's promises of free speech; in fact, that view has continually expanded. Until the 20th century, the primary test was of "bad tendency"; that is, speech could be outlawed if it could be seen as causing harm to the public welfare. Then, for most of the last century, the test was "clear and present danger," meaning that speech didn't have to just be something that was considered a threat, but an imminent and specific threat. That requirement was made even sharper after 1969 when a series of decisions moved the stakes to a requirement that speech be designed to generate "imminent lawless action." Under that requirement, speech is not protected only if it is intended to create an incident that is both "imminent and likely."

That expansion of First Amendment rights has been a good thing, in part because it has protected the speech of those arguing for civil rights and those protesting war. But it's also been used for bad purposes, to protect speech designed to create schisms in the nation and to build up racist hatred. However, even the most extreme interpretation of the First Amendment should not protect the acts in which Carlson is currently engaged. His words are, by any standard, causing harm to the public welfare, generating a clear and present danger, and creating an imminent threat to the very lives of Americans.

Whether or not Carlson could be successfully prosecuted is an open question. Whether he should be on the air is not.

Back in 2017, one of those strange and harmful trends swept through the nation: the Tide Pod Challenge, a fad in which people—mostly teens posting on social media—bit into Tide's single servings of squishy laundry detergent.

As Snopes explains, the earliest videos of the "challenge" went back to 2012, and at different times over the years people had resurrected the idea that Tide Pods were edible in ways that included a supposed Tide Pod pizza and a fake Gordon Ramsay review. But suddenly, around the end of 2017, the idea seemed to catch on in a big way, particularly the idea of teens filming themselves biting down on a Pod until it sprayed out the highly toxic liquid inside. In a few months at the end of 2017, there were 200 cases of teens at least partially swallowing detergent. In just the first 11 days of 2018, there were 40 more. Approximately 10 deaths resulted.

Strange doesn't begin to cover it, but here's the important part: Every social media platform reacted by removing every Tide-challenge related video and banning posters. Those platforms then moved swiftly to post warnings that the challenge was life-threatening. As news of the challenge became general knowledge, every major media outlet responded by running programs warning against the practice, and calling out the videos as unsafe. From CBS News to Good Morning America, the phenomenon was examined, the dangers made clear, and those pushing the idea were shamed. Networks didn't feel any embarrassment about calling out those involved, even those who were under 18, and pointing out the dangers of what they were encouraging.

Now, let's move to another event that took place in 2017. That's when Harley Branham, a manager at the local Dairy Queen in Fayette, Missouri, was charged with encouraging the suicide of a 17-year-old employee. As theSt. Louis Post-Dispatch reported, Branham harassed the employee over a period of three months, making fun of his weight, his appearance, his way of speaking, and his intelligence. In 2019, Branham pleaded guilty to a charge of third-degree assault in the youth's death, and was sentenced to two years' probation after making a deal with prosecutors.

Branham's case is not unique. In 2014, 18-year-old Conrad Roy climbed into his pickup, closed the doors, and ended his life through carbon monoxide asphyxiation. For months in advance of that day, his girlfriend Michelle Carter had been sending Roy messages encouraging him to kill himself. At one point in the middle of his death, Roy texted Carter that he had gotten out of the truck. "Get back in," she texted in reply. He did. In 2017, Carter was convicted of involuntary manslaughter. She was released in 2020, after spending just over a year behind bars.

In May 2021 alone, over 18,000 Americans died of COVID-19. Of those who died, only about 150 were people who had been vaccinated. In the same month, more than 107,000 Americans were hospitalized for severe illness attributed to COVID-19. Only 1% of those people had been vaccinated.

It may be too much to charge Tucker Carlson directly with 18,000 counts of manslaughter for his actions over the course of that month, but there is one thing certain: What Carlson is doing is much closer to the actions of Branham or Carter than it is to the teens laughing over the Tide Pod challenge. The frozen food heir is fully aware of the consequences of his actions, He is fully aware of the falseness of his claims. He is fully culpable in the deaths of thousands of Americans.

This is not a case of a broadcaster repeating a mistaken claim, or someone rushing forward with information that is incomplete. Carlson is deliberately, frequently, and constantly providing disinformation to the public that generates real and lasting harm—including death on a massive scale.

There may be no prosecutor in the country willing to charge Carlson for his involvements in these days—though honestly, there should be. But if that's too much to expect, then certainly it should be a bare minimum that Carlson be treated with the kind of seriousness that was given to a disorganized group of kids that generated 0.1 percent as many deaths over eight years as Carlson and his ilk produced in a single month, a month that was the least deadly month of the entire pandemic.

Every single platform should feel an obligation to not just disown Carlson, but to prominently feature material correcting his false claims. Every single news program should feel obligated to call out this threat regularly, until it no longer exists. And every single sponsor who puts up a dime for his program should be considered a co-conspirator in his acts.