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Less than six months ago I lambasted the bloodlust rhetoric of U.S. Rep. Lauren Boebert. I worried that leaders like the congresswoman could be engaged in a competitive spiral to prime their base.

At the time, I wrote that those leaders were cultivating resentment, anger and hate. I forgot to include violence. But that is where we find ourselves less than a half year later.

The rhetoric has not gotten better, but rather descended into casual references to treason and execution.

First, Pearson Sharp, a reporter from the farther-right-than-Fox One America News Network (OAN), went on a riff against anyone who contradicts the assertion that the 2020 presidential election was rigged. Specifically, he speculated that hundreds or thousands of people were engaged in a coup against the presidency, labeled each a traitor, and noted that a good solution for dealing with such traitors: Execution.

Only a few days later, Garrett Flicker, the current Denver Republican Party chairman, made a Facebook post asking whether teachers should be charged with treason?

When one response challenged whether Flicker meant to imply the death penalty would be appropriate, Flicker wrote radical ideas that lead to revolts and mass violence always lead to death before equivocating and stating that fines and prison could be utilized instead.

Maybe Flicker did not understand the irony of his statement?

Notwithstanding the specious merit of his assertion history is replete with peaceful radicals like Gandhi and Martin Luther King Jr. and Nelson Mandela, to name a few he would substitute state-sanctioned killing or vigilante justice as an answer.

And that is precisely the danger.

The same logic Sharp and Flicker espoused led Kyle Rittenhouse to kill two men and injure another at a protest in Kenosha, Wisconsin. As prosecutors in Rittenhouses case wrote, the teenager willingly and intentionally put himself in violent situations in Wisconsin that do not involve him in order to commit further ats of violence.

It is the same rhetorical gasoline John Eastman, U.S. Rep. Madison Cawthorn and Donald Trump Jr. poured on the mobs nascent fire prior to the Jan. 6 insurrection. Rudy Giuliani literally called for trial by combat.

That is the pot that Sharp and Flicker have stirred. One in which Americans justify killing each other. Could anything be less American as we celebrate the Fourth of July?

Thankfully, Sharp received widespread condemnation and multiple replies challenged Flickers comments. Unfortunately, it was not universal. QAnon chat rooms were filled with glee after Sharps comments and saw it as proof that mass executions were right around the corner. Replies to Flicker included Indeed, Definitely, and Surely.

I doubt Sharp or Flicker wish to actively engage in the killing of other Americans. Rather, they seem caught up in an ugly concoction of machismo, vitriol, rhetoric and one-upmanship.

But given their public following, simply giving voice to such violence could be tantamount to the actual act. They have helped create echo chambers were the less restrained fringes feel it is not only acceptable to engage in violence against those with whom they disagree, but patriotic.

Should people die in the aftermath of their comments and I believe that will be the case eventually even the First Amendment will not protect people like Sharp or Flicker. You cannot yell fire in a crowded theater and you cannot repeatedly call for the execution of fellow citizens.

That is probably why OANs attorneys forced Sharp to walk back his statement. And maybe why Flicker offered a wet-rag argument that other punishments would be acceptable.

The country is polarized and politically divided. But our leaders and opinion makers must refrain from their reliance on the language of violence. If they do not, it will have tragic consequences.

Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq

The Colorado Sun is a nonpartisan news organization, and the opinions of columnists and editorial writers do not reflect the opinions of the newsroom. Read our ethics policy for more on The Suns opinion policy and submit columns, suggested writers and more to opinion@coloradosun.com.

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Nicolais: Calling for the execution of political opponents should never be condoned - The Colorado Sun

Stephen Davis: Eye on Education

Two hot-button issues have recently emerged in the ongoing debate surrounding academic freedom and free speech in public schools.

One issue centers on concerns related to the inclusion of critical race theory in American school curricula (e.g., systemic racial discrimination in society). The other centers on the U.S. Supreme Courts recent ruling in favor of a former high school cheerleader who was punished by her school for posting profane comments about the school on Snapchat while she was off school grounds.

Both examples contain important implications for how public schools manage controversial issues.

Before addressing the merits of each, it is important to note that academic freedom and free speech are closely related legal concepts that have somewhat different implications for universities and public schools. The modern concept of academic freedom which emerged from 19th century German universities rests upon a broad intellectual landscape of ideas unconstrained by narrow partisan or political interests.

The U.S. Supreme Court stated, Our nation is deeply committed to safeguarding academic freedom, which is of transcendental value to us all and not merely to the teachers concerned. . . . The First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom.

However, the application of academic freedom in public schools is less clear and continues to be a topic of debate practically, politically and in the courts. While the U.S. Supreme Court has largely avoided ruling on academic freedom cases in public schools, lower courts have provided considerable guidance. In general, lower courts have protected local school boards and their authority to make curricular decisions influenced by community values and needs.

Moreover, courts have ruled that public schools are subject to state legislative authority and must conform to the education laws and regulations enacted by the state.

Importantly, while cases relating to academic freedom typically focus on the behaviors and practices of professional educators, cases relating to freedom of speech (more generally) have rendered important implications for both educators and students. In recent years, court cases related to freedom of speech in public schools have leaned in favor of more student expression rather than less.

Nevertheless, this distinction is not razor-sharp, and the rights of public school students are not unlimited.

In the Supreme Court case involving the high school cheerleader, the content of the students speech was profane and objectionable. However, it did not rise to the level of a material disruption to the school. No one was threatened or slandered. Moreover, the student posted her comments from home on her personal computer on a widely used social network.

Justice Stephen Breyer wrote, . . . sometimes it is necessary to protect the superfluous in order to preserve the necessary. Breyers comment echoed the courts earlier ruling that, students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

The debate over critical race theory, also tethered to the First Amendment, is amplified most by differing political perspectives. Importantly, state legislatures and local school boards possess sole authority to determine what is taught and how. Individual schools, teachers, administrators and labor unions have no independent authority to ignore or modify state laws and local board policies.

The ideas that define critical race theory are not new. To varying degrees, states and local school districts have been addressing elements of the theory for nearly 50 years. There are important arguments made by advocates and opponents of the theory that ultimately must be processed through rigorous public debate and policy-making processes.

While I believe that to the extent possible, public schools ought to be included in the open marketplace of ideas, it is particularly important that students are not sheltered from controversial ideas that are based upon thoughtful arguments and alternative interpretations.

After all, a central mission of public education is to help students become independent, open-minded, ethical and creative thinkers.

Stephen Davis is a career educator who writes a column that publishes every other Wednesday in the Daily Republic. Reach him by email at[emailprotected].

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Eye on Education: Addressing First Amendment controversies in public schools - Fairfield Daily Republic

On June 24, a U.S. District Court in Washington, D.C. heard arguments over whether three, billion-dollar defamation suits brought by Denver-based Dominion Voting Systems against Rudy Giuliani, Sidney Powell and Mike Lindell should go to trial.

The issue before Judge Carl J. Nichols was whether the defendants repeated claims of election fraud, including claims that Dominions software could somehow switch votes, were protected speech under the First Amendment and, therefore, not worthy of taking before a jury.

The bar for winning a libel or defamation suit is high, and trials are expensive, so it is typical for defendants to seek dismissal. But Judge Nichols must also weigh a bigger question: What is the harm in allowing this defamation case to proceed to trial and letting a jury weigh the evidence and decide?

That was the question before Denver District Court Judge John Coughlin in the mid-1990s in Smileys Too, Inc. v. Denver Post Corp., a suit brought over an article that described complaints against Smileys, a dry cleaner, on file at the Denver District Attorneys office. Because Chance Conner, a reporter working for me when I was the business editor at The Post, wrote the article, I became the point person on staff for our defense.

In the Dominion case, much will turn not just on whether the claims by Giuliani, Powell, Lindell and others are false. In all likelihood, they will have to be shown to have been produced with actual malice or reckless disregard for the truth, in other words, the defendants knew the statements were false and repeated them anyway.

This very high bar exists because the defense claims that Dominion Systems is a public figure, subject to a higher standard than a private citizen. Is Dominion Systems a public figure or simply a private company that happens to supply voting systems under contract to government entities? That, too, might be an important issue for a jury to weigh at trial.

In Colorado, the public figure rule also applies to matters of general public concern and in the case of Smileys, the question of this broad definition of a public figure in libel cases was before the court.

Another question for Judge Nichols is whether Dominion can demonstrate it was damaged by the false statements. It claims $1.3 billion in damages though the defense has argued that any possible damages are to its reputation and not to its bottom line, therefore not as clear cut as Dominion claims.

In the case of Smileys, Judge Coughlin decided that it was worth having a jury hear the evidence and decide whether public figure rules applied, whether our reporting was accurate and whether damages had occurred.

If Judge Nichols orders the case to trial, it will be up to Giuliani, Powell and Lindell to make the case for why their statements are backed up by the truth or why they deserve protection as opinion under the First Amendment. Dominion Systems will get a chance to collect evidence about what the defendants knew, when they knew it and what they did or didnt do with that knowledge.

The Posts defense in Smileys was to assume that the higher standard would not apply and stand by our story. The jury found our reporting was a fair and accurate report of the DAs complaints and exonerated The Post.

And yes, the jury agreed that a persons laundry was a matter of general public concern. Twenty-five years ago, on June 27, 1996, a Colorado appellate court affirmed the jury verdict, effectively ending the matter.

The Dominion case has drawn national attention and the trial will take place with millions paying attention. But the basic issues remain the same. Were the statements truthful? Were they protected as opinion? Is Dominion a public figure? Were there material damages?

I came away from the Smileys experience with great respect for the jury system. Trials in First Amendment cases should be rare, but in matters of vital national interest especially when the integrity of elections are the issue letting 12 citizens decide could be good for America.

Henry Dubroff is a former Denver Post business editor who now owns the weekly journal for the Central Coast of California and divides his time between Denver and the West Coast.

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Opinion: If Dominions defamation suits go to trial, it could be good for America - The Denver Post

Prince Harry (Photo by Alastair Grant/WPA Pool/Getty Images)

As some of you may remember, Prince Harry was a guest on Dax Shepards podcast last month. During the appearance, Harry provided his thoughts on the First Amendment of the U.S. Constitution, stating, Ive got so much I want to say about the First Amendment as I sort of understand it, but it is bonkers.

However, Harry admitted he was no expert in constitutional law.

I dont want to start going down the First Amendment route because thats a huge subject and one which I dont understand because Ive only been here a short time. But, you can find a loophole in anything. You can capitalize or exploit whats not said rather than uphold what is said. I believe we live in an age now where youve got certain elements of the media redefining to us what privacy means.Theres a massive conflict of interest.

You should know that Harry and I go way back, as I had once watched him plant a tree outside my former office in the Financial District. (Coverage of this momentous moment in 2011, including quotes by yours truly, can be found here.)

Thus, as one of Harrys oldest friends, I wish to take this opportunity to offer him - as well as anyone reading this article - some insight into the First Amendment. Although Harry admits he is no expert on the topic, I am. Much of my legal practice focuses on defamation and Title IX law, both of which are closely intertwined with the First Amendment. And it is quite all right that Harry hasnt studied the subject intently - we each have our own expertise, and I myself have never perfected a proper curtsy.

In response to Harrys expressed views, I will focus on the First Amendments freedoms of speech and the press, since I do not believe he is questioning American citizens freedoms of religion, association, or petition and assembly. However, Harry, if I am mistaken, please let me know, and Ill circle back around to cover those freedoms as well.

The entire First Amendment is a mere 45 words, but has resulted in centuries of debate and legal proceeding. Just to sufficiently explain the ins and outs of our freedom of speech would take an article longer than anyone is willing to sit down and read, so I will skim the surface and focus today on whether the government can limit our speech, in what circumstances they can do so, and why it is important. Because this is such a big topic, even skimming the surface of our free speech rights will take a few tries, so I will be following up with a second piece devoted to civil liability pertaining to speech and a third piece devoted to press rights and limitations. Yes, readers, you are indeed getting a three-parter. If Harry doesnt understand, I am here to explain.

In short, the First Amendment forbids the government from preventing or punishing anyone for what they say or write. The key word is government. Private citizens have legal recourse for things that are said or written about them (i.e., claims for defamation) and private companies can police the speech of their employees. That is why a tweet can get you fired so long as you are not a public employee. So when you see that an actor has been fired from their television show due to something they said, take note that the common argument pertaining to the actors freedom of speech is incorrect. The television network, a private entity, can fire that actor without violating their free speech rights.

And our rights are not absolute. The government can police language that is communicated with the intent of inciting violence. So while we have protection to utter hate speech, there is a limit. The courts have gone back and forth about this for almost 100 years. It started out broadly, with the Supreme Court deciding that the First Amendment doesnt protect statements that by their very utterance inflict injury or tend to incite an immediate breach of the peace. The issue has been brought back to the Supreme Court in numerous cases, with the court narrowing the exception over time. Eventually, the court developed the imminent danger test, holding that the government cannot punish inflammatory speech unless that speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Thats essentially where we stand now (with exception, because there are always exceptions). So, if the speech is hateful, it is protected by the First Amendment. If it poses an imminent danger of criminal action, it is not protected.

This distinction is actually a good thing for Harry. Although he finds the free speech protections in our nation to be bonkers, it is those same protections that would keep someone out of jail for, say, dressing up like a Nazi. While it is an act that I myself find reprehensible, the fact that this act is protected by the First Amendment is important. For instance, that same protection extends to religious garments such as yarmulkes and hijabs that some people in this country might decide offends them. Finding offense in such garments may sound ridiculous to you and me, but its a slippery slope for the courts.

Just a few years ago, Justice Kennedy addressed the importance of protecting speech, including hateful speech, writing:

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the governments benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

That brings me to my main point about our free speech rights. It allows people in this country to express their ideas, even if others disagree with those ideas. No matter how unconventional, unpopular, or disliked those ideas might be, the government is prevented from infringing on our right to express them. Without such rights, only the most popular and mainstream ideas would be expressed, while dissent would be prosecuted. There are many countries where these rights do not exist, where people cannot participate in peaceful protests, wear certain symbolic clothing, or speak out against their government. Here, however, we are free to engage in discussion and debate without fear of penalty or censorship by our leaders. In my view, that is far from bonkers. It is a blessing that many people around the world do not have. It is the ultimate freedom.

I hope this helps shed some light on our free speech rights. I look forward to delving further into this topic with my next article, Defamation Law And The People Who Love It. (The title is a work in progress.)

Diana Warshow is Senior Counsel at Nesenoff & Miltenberg, LLP in New York, NY. Practicing law since 2008, Dianas work focuses on defamation and Title IX law. She represents clients in libel and slander claims against media companies, written publications, tech companies, blogs, and social media sites. She also represents students in disciplinary proceedings at high schools, colleges, and post-graduate institutions around the country. You can reach her by email at DianaWarshowEsq@gmail.com and connect with her on LinkedIn.

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The First Amendment: Bonkers Or A Blessing? - Above the Law

We knew this was going to happen.

The Senate failed to advance a sweeping voting rights bill Tuesday, stalling the Democratic legislation aimed at countering recent restrictive state measures pursued in Republican-led states.

Meanwhile: Eric Adams, the Brooklyn Borough president and former police captain, is in the lead Wednesday to be New York City's next mayor, but even though voting is done, the race is far from over.

Plus, the Supreme Court released more opinions today. More on that below.

It's Mabinty, let's do this!

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TheSupreme Court on Wednesday sided with a former cheerleaderwho excoriated her school in a profanity-laced post on social media, holding that the punishment of her off-campus speech violated the First Amendment.

But the 8-1 ruling left unresolved the broader question of when schools may regulate off-campus speech, and when such punishment isoff limits.

When Brandi Levy, who was 14 at the time, failed to make the varsity cheer team in 2017, she and one of her friends posted a vulgar message onSnapchat, exhortingher followers to "F schoolf softballf cheerf everything." The message made it back to her coaches, whocut her from the junior varsity squad.After appealing to school authorities, her parents sued the school district in federal court.

Several of thejustices said during oral arguments that they were wary of setting a hard-and-fast standard for when schools could regulate off-campus speech, and that hesitancy was reflected in the majority opinion.

"It might be tempting to dismiss (the student's)words as unworthy of the robust First Amendment protections discussed herein,"Associate Justice Stephen Breyerwrote for the majority. "But sometimes it is necessary to protect the superfluous in order to preserve the necessary."

That's not all from SCOTUS:The Supreme Court on Wednesday declined to give police theautomatic power to enter homeswithout a warrant when they're in "hot pursuit" for a misdemeanor crime, ruling against an officer who charged a man with DUI after slipping underhis garage door.

President Joe Biden is launching a crime prevention strategy Wednesday in a push to takeon soaringgun violence as Republicans blame the rise in crime on calls from progressive activists to cut police funding.

In a White House speech Wednesday, Bidenwill announce a "zero tolerance policy"for rogue gun dealersand steps to stop theillegaltrafficking of firearms, according to senior administration officials who spoke on the condition of anonymity.

Biden will also emphasize thatcities and states can use their portions of $350 billion in direct aid from Biden's COVID-19 rescue plan, approved by Congress in March, on public safety efforts including hiring more police officers.

Through the first 172 days of 2021, gun violence killed 9,420 Americans, an average of 55 people a day,according to data collected by the Gun Violence Archive, a research nonprofit. The figures include homicides and accidental gun deaths but not suicides.

#FreeBritney! Mabinty

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OnPolitics: SCOTUS says yes to the F word and the First Amendment - USA TODAY