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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!

Want this news roundup in your inbox every night?Sign up forOnPolitics newsletterhere.

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

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

I have long been a critic of ABA Model Rule 8.4(g). This regime would empower the state to regulate an attorney's speech that is not connected to any judicial forum. Specifically, the Bar could discipline a lawyer for dinner-time conversation at a bar function, or potentially impose liability for a contentious debate topic. Much of my argument is grounded in the First Amendment. This rule imposes an overt form of viewpoint discrimination. Moreover, phrases like "demeaning" are unconstitutionally vague. However, I have also advanced a parallel argument: the Bar lacks the authority to regulate all facets of an attorney's existence. These state agencies are chartered for specific purposes: the regulation of the practice of the law. The Bar is not roving a commission to impose some progressive sense of civility.

This background brings me to the situation affecting Rudy Giuliani. Recently, the Appellate Division (First Judicial Department) temporarily suspended Rudy's license to practice law. The per curiam decision offered this summary:

For the reasons that follow, we conclude that there is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump's failed effort at reelection in 2020. These false statements were made to improperly bolster respondent's narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent's conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee (sometimes AGC or Committee).

I understand that schadenfreude is enticing. People enjoy seeing misfortunes fall on Rudy, Sidney Powell, and the rest of the Krakenbrigade. I get it. Still, we all have the responsibility to defend the rights of those we vigorously disagree witheven Rudy.

Here, I write to praise an Op-Ed by Professors Bruce Green and Rebecca Roiphe in the Washington Post. They are not MAGAphiles. To the contrary, they call out Rudy's lies about the election. But they recognize the dangerous, and chilling precedent the New York courts have set. Kudos to Green and Roiphe.

The opinion states:

This disciplinary proceeding concerns the professional restrictions imposed on respondent as an attorney to not knowingly misrepresent facts and make false statements in connection with his representation of a client.

This category resembles the catchall in ABA Model Rule 8.4(g): conduct related to the practice of law. You now see what this expansion of authority is so pernicious.

Green and Roiphe explain that the gravamen of the suspension was based not on statements in court, but statements to the press.

Except for one assertion about the status of a complaint, which he later corrected, Giuliani is not accused of improprieties in court proceedings where he functioned as an advocate. For the most part, the court focused on Giuliani's public statements and justified its interim suspension by citing the risk that Giuliani would continue disseminating "false statements in the media" while the disciplinary process ran its course.

And lawyers retain their First Amendment rights when speaking to the press:

In Giuliani's case, the court gave the First Amendment concerns short shrift, because the case was about his professional improprieties "in connection with his representation of a client." We agree that courts have the right to enforce rules requiring lawyers to be truthful to protect the integrity of a court proceeding or the wellbeing of a client. But it is hard to see how either of those are at issue here . . . .

And that right includes the right to lie about the government:

Lawyers have the right as private citizens to engage in political debate. This includes a right to lie about the government not because lies are desirable, but because it is too dangerous to give the state the power to determine which statements are true or false when it comes to political speech. Robust political debate would be chilled because people would fear misspeaking. Efforts to expose government wrongdoing would be abandoned out of concern about retribution.

To encourage criticism of the government, the First Amendment gives the public breathing room. Lawyers need it too. They should not have to choose between a law license and the license to engage in the same vigorous political speech as other citizens. It is true that lawyers are officers of the court, but they have also historically played an important part in holding government to account. It would be a shame to strip them of this powerful role.

Well said. Here, the courts did not rely on potentially defamatory statements--an issue that is currently being litigated in other courts.

If the ACLU or the NYCLU has said anything about this issue, please tell me; I haven't seen a peep.

On a personal note, it is still difficult for me to fathom Rudy's fall from grace. I grew up in the 1990s on Staten Islandthe borough that helped put the Republican into office. Rudy was a giant. He was well-respected by everyone I knew. He made cameos in movie and TV shows. He was an icon! I still remember when Rudy visited my 4th grade class with his then-wife, Donna Hannover. After September 11, Rudy became a titan of a leader. His regular press conferences brought calm and stability during a hectic time. The sky was the limit for him. Alas, over the past two decades, things have changed.

Update: An earlier version of the post stated that Rudy was not disciplined for anything he did in court. There is one allegation concerning his statements made to a Philadelphia federal court, detailed on pages 11-14, that I had missed.

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Rudy's First Amendment Right to Lie to the Press - Reason

LOS ANGELES Concord Law SchoolatPurdue University Globalwill present a live discussion titled Divisive Concepts, Targeted Speech, and Safe Spaces: The First Amendment in Schools for the next installment of its Distinguished Speaker Series at noon PT on Tuesday (June 29).

The live webinar will be hosted by Concord Dean Martin Pritikin and feature guest speaker Azhar Majeed, a civil liberties attorney who has spent his career defending the free speech rights of university students and professors.

Majeed previously served as vice president of policy reform at the Foundation for Individual Rights in Education, where he worked with college administrators and general counsels to improve their institutions policies on free speech and due process, and helped create a model freshman orientation program to teach incoming students about the rights and principles enshrined in the First Amendment.

Majeed is a contributor to New York Universitys First Amendment Watch, where his articles and commentary help document threats to freedom of expression nationwide. He graduated from the University of Michigan Law School in 2007.

Those interested in registering can do so here. The webinar can be viewed here.

About Purdue University Global

Purdue University Global delivers personalized online education tailored to the unique needs of adults who have work or life experience beyond the classroom, enabling them to develop essential academic and professional skills with the support and flexibility they need to achieve their career goals. It offers personalized paths for students to earn an associate, bachelors, masters or doctoral degree, based on their work experience, desired pace, military service, previous college credits and other considerations no matter where they are in their life journey. Purdue Global serves 34,000 students (as of April 2021), most of whom earn their degree online. Purdue Global is a nonprofit, public university accredited by the Higher Learning Commission. It is affiliated with Purdue Universitys flagship institution, a highly ranked public research university located in West Lafayette, Indiana. Purdue University also operates regional campuses in Fort Wayne and Northwest Indiana, as well as serving science, engineering and technology students at the Indiana University-Purdue University Indianapolis (IUPUI) campus. For more information, visit purdueglobal.edu.

About Concord Law School

Concord Law School is part of Purdue University Global, a public, nonprofit school within the respected Purdue University system. Founded in 1998, Concord was the first U.S. law school to offer students a traditional law school program online, including interactive live classes, frequent testing with extensive feedback, and nationally respected faculty members. Offering rigorous, rewarding online degree programs, Concord provides students with a first-rate law school education that is affordable and reflects the needs of todays employers, delivered in a convenient, highly supportive environment. For more information, visit here.

Media Contact: Tom Schott, 765-427-1721, tschott@purdue.edu

Source:Martin Pritikin

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Purdue Global Concord Law School to focus on the First Amendment in schools for next Distinguished Speaker Series discussion - Purdue News Service