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John E. Finn, Wesleyan University

(THE CONVERSATION) The U.S. militia movement has long been steeped in a peculiar and unquestionably mistaken interpretation of the Constitution, the Bill of Rights and civil liberties.

This is true of an armed militia group that calls itself the Wolverine Watchmen, who were involved in the recently revealed plot to overthrow Michigans government and kidnap Gov. Gretchen Whitmer.

As I wrote in Fracturing the Founding: How the Alt-Right Corrupts the Constitution, published in 2019, the crux of the militia movements devotion to what I have called the alt-right constitution is a toxic mix of constitutional falsehoods and half-truths.

Private militias

The term militia has many meanings.

The Constitution addresses militias in Article 1, authorizing Congress to provide for organizing, arming and disciplining, the Militia.

But the Constitution makes no provision for private militias, like the far-right Wolverine Watchmen, Proud Boys, Michigan Militia and the Oath Keepers, to name just a few.

Private militias are simply groups of like-minded men members are almost always white males who subscribe to a sometimes confusing set of beliefs about an avaricious federal government that is hostile to white men and white heritage, and the sanctity of the right to bear arms and private property. They believe that government is under the control of Jews, the United Nations, international banking interests, Leftists, Antifa, Black Lives Matter and so on. There is no evidence of this.

On Oct. 8, the FBI arrested six men, five of them from Michigan, and charged them with conspiring to kidnap Whitmer. Shortly thereafter, state authorities charged an additional seven men with, according to the Associated Press, allegedly seeking to storm the Michigan Capitol and seek a "civil war. Included were the founders and several members of the Wolverine Watchmen.

As revealed in the FBI affidavit accompanying the federal charges, the six men charged claimed to be defenders of the Bill of Rights. Indeed, some of the men in April had participated in rallies in Lansing, the state capital, where armed citizens tried to force their way onto the floor of the State House to protest Governor Whitmers pandemic shut-down orders as a violation of the Constitution by a tyrannical government intent upon sacrificing civil liberties in the name of the COVID-19 fight.

According to the FBIs affidavit, the conspirators wanted to create a society that followed the U.S. Bill of Rights and where they could be self-sufficient.

Militia members imagine themselves to be the last true American patriots, the modern defenders of the United States Constitution in general and the Second Amendment in particular.

Hence, the Bill of Rights and especially the Second Amendment, which establishes the right to bear arms figure prominently in the alt-constitution. It is no accident that the initial discussions about overthrowing Michigans so-called tyrannical governor started at a Second Amendment rally in June.

According to most militias, the Second Amendment authorizes their activity and likewise makes them free of legal regulation by the state. In truth, the Second Amendment does nothing to authorize private armed militias. Private armed militias are explicitly illegal in every state.

No restrictions on rights

Additional foundational principles of militia constitutionalism include absolutism. Absolutism, in the militia world, is the idea that fundamental constitutional rights like freedom of speech, the right to bear arms and the right to own property cannot be restricted or regulated by the state without a citizens consent.

The far rights reading of the First and Second Amendments which govern free speech and the right to bear arms, respectively starts from a simple premise: Both amendments are literal and absolute. They believe that the First Amendment allows them to say anything, anytime, anywhere, to anyone, without consequence or reproach by government or even by other citizens who disagree or take offense at their speech.

Similarly, the alt-right gun advocates hold that the Second Amendment protects their God-given right to own a weapon any weapon and that governmental efforts to deny, restrict or even to register their weapons must be unconstitutional. They think the Second Amendment trumps every other provision in the Constitution.

Another key belief among militia members is the principle of constitutional self-help. Thats the belief that citizens, acting on their inherent authority as sovereign free men, are ultimately and finally responsible for enforcing the Constitution as they understand it.

Demonstrating this way of thinking, the men arrested in Michigan discussed taking Gov. Whitmer to a secure location in Wisconsin to stand trial for treason prior to the Nov. 3 election. According to Barry County, Michigan Sheriff Dar Leaf a member of the militia-friendly Constitutional Sheriffs and Peace Officer Association the men arrested in Michigan were perhaps not trying to kidnap the governor but were instead simply making a citizens arrest.

Leaf, who appeared at a Grand Rapids protest in May of Gov. Whitmers stay-at-home order along with two of the alleged kidnappers, mistakenly believes that local sheriffs are the highest constitutional authority in the United States, invested with the right to determine which laws support and which laws violate the Constitution. The events in Michigan show how dangerous these mistaken understandings of the Constitution can be.

There will be more

The Wolverine Watchmen are not a Second Amendment militia or constitutional patriots in any sense of the word. If they are guilty of the charges brought against them, then they are terrorists.

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The FBI and Michigan law enforcement shut down the Watchmen before an egregious crime and a terrible human tragedy unfolded. But as I concluded just last year in my book, there is little reason to think the militia movement will subside soon.

Unfortunately, I did not account for the possibility that President Trump would encourage militias to stand back and stand by, which seems likely to encourage and embolden groups that already clearly represent a threat. Expect more Michigans.

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/plot-to-kidnap-michigans-governor-grew-from-the-militia-movements-toxic-mix-of-constitutional-falsehoods-and-half-truths-147825.

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Plot to kidnap Michigan's governor grew from the militia movement's toxic mix of constitutional falsehoods and half-truths - Huron Daily Tribune

Law360 (October 7, 2020, 6:37 PM EDT) -- The U.S. government should be able to limit any service that poses a threat to the country's national security, whether or not that company facilitates communications, the Trump administration has argued in its bid to ban WeChat in the U.S.

In a Tuesday court filing, the administration told a California federal judge that the simple fact that Tencent-owned WeChat is a mobile communications app doesn't entitle the company to First Amendment protection orpreclude the government from cracking down on it for national security purposes.

"Were Tencent to sell electricity to U.S. consumers and, in so doing, systematically collect and send payment...

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Trump Admin. Says First Amendment Is Moot In WeChat Case - Law360

The Trumpsters dont have the corner on sign pimping, though. Any Functioning Adult 2020 signs have popped up around here.

In another time, people didnt wear their politics on their sleeves quite so much. Men and women of my parents generation could often be heard to say, Who I vote for is between me and the voting booth. It was considered polite not to preach politics to friends and neighbors. But then there was a time when driving around in vehicles with roaring straight exhaust pipes wasnt considered polite, either. Nor was screaming into a microphone. Times change, obviously.

Stevens Point was once such a polite city that it banned political signs. Then a little guy named John Anderson led an effort to overturn the ordinance based on First Amendment rights. He was successful. Anderson was a supporter of Lee Sherman Dreyfus, the local university chancellor who ran for governor in 1978, and he wanted to proclaim so with a yard sign.

I get the First Amendment stuff, but I sort of pine for the time when people were more guarded about their political leanings. All the blabbing and blustering is a big reason why I quit Facebook and other social media. Such a relief. But the signs are hard to turn off. These days, its common to erect not one, but two, three or a half-dozen signs for one candidate or the other. Couldnt we have a bit of restraint? I guess not.

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Bill Berry: Looking forward to replacing campaign signs with Christmas lights - Madison.com

CLEVELAND, Ohio Two First Amendment scholars question whether the Biden-Harris light display projected onto Terminal Tower last Tuesday by the United Steelworkers violated city or state law as the the buildings owner contends.

And even if the display did violate local or state laws, the scholars said, the laws might be trumped by First Amendment protections of free speech given the unusual facts of the case that the display amounted to projected light and was in support of political candidates.

Cleveland.com and The Plain Dealer reached out to Kevin ONeill, associate professor at Cleveland State Universitys Cleveland-Marshall College of Law, and Andy Geronimo, a lecturer at Case Western Reserve University School of Law, to examine the debate over the displays legality.

Whats at issue?

The United Steelworkers claimed responsibility for the light display, projected ahead of the debate in Cleveland between President Donald Trump and former Vice President Joe Biden, and referencing Biden and his running mate, former Sen. Kamala Harris. The union also contends the display was legal.

Doug Price, CEO of the management group that owns Terminal Tower, told cleveland.com that the United Steelworkers projected the display without his companys permission and that city prosecutors subsequently provided him with three laws that prohibit such displays.

Prices company, K&D Management, cited those laws in a cease-and-desist letter sent to the union. They are:

*A city prohibition against posting or sticking any advertisement, poster, sign or handbill or placard of any description on any private building or structure without the owner or occupants permission. It also prohibits printing, marking, writing, printing or impressing or in any manner attach[ing] any notice or advertisement or the name of any commodity or thing or any trademark, symbol or figure of any kind upon anothers property without permission.

*A city criminal mischief law that, in part, prohibits people from moving, defacing, damaging, destroying, or otherwise improperly tampering with anothers property.

*A state law that requires most political communications to clearly identify the entity that issued them.

Cleveland.com and The Plain Dealer shared the three laws with Geronimo and ONeill.

What does Geronimo say?

Geronimo said the city laws K&D cited do not neatly address light projections such as the one displayed on Terminal Tower, and the incident demonstrates the difficulty of applying these ordinances to this kind of action.

The two city laws might not hold up in court because a judge might question whether the intangible nature of light is actually covered by those laws, which seem intended to address the physical overtaking of the building in a way thats irreversible.

Because this is light, its hard to say its damaging or destroying the building, he said. It is a very nuanced problem, and the laws as written now, and as courts have engaged with applying these laws, dont fit neatly to this problem.

The city could better address the issue by passing another law or amending current law to specifically include non-permanent light displays. But such a law would need to be crafted with First Amendment protections in mind, because it would be regulating free speech.

More generally, First Amendment violations would come into play if the police, a court or the city had tried to stop the union from displaying its message.

If K&D filed a nuisance or trespassing lawsuit against the union, the union might be able to successfully use its First Amendment protections as a defense.

In that case, the projectionist might say I have a free speech right and the state shouldnt use its power to order me to stop doing this under threat of criminal or civil penalty.

A constitutional question might also arise if police try to stop the projectionist while the projectionist is standing on public sidewalks or streets, which are often considered public forums.

If the projectionist was standing on private property, however, the owner of that property could report it to police as a trespassing complaint, which would allow police to legally remove the projectionist.

(A Steelworkers spokeswoman previously told cleveland.com she was unsure where the projectionist was standing when shining the light on Terminal Tower. Price previously told cleveland.com it appeared the source of the light was from one of the bridges over the Cuyahoga River.)

What does ONeill say?

I dont think a judge would see a problem with this, he said. If there were a [local law prohibiting this, the law] might be unconstitutional under the First Amendment. Whats the harm? Its simply the expression of light onto a faade.

ONeill noted that hes never encountered a First Amendment court challenge specifically related to light projections. But the first thing a lawyer or judge would want to know when considering such a case is whether a local ordinance prohibits the practice. If there isnt one, the light display would not be illegal.

If a local ordinance is in place, one would have to determine whether that law is unconstitutional, because it might very well be hard for the government to justify under existing First Amendment law.

To be considered constitutional, the local ordinance would likely need to be content-neutral, narrowly tailored to achieve a substantial government interest and also leave open ample alternative channels for communicating the message.

If Cleveland had a law specifically prohibiting the projection of a message or image onto a building, theres a chance a court would uphold it as constitutional, he said.

But theres also a chance a court would say such a law wasnt narrowly tailored, or that it takes away a novel method of expression that doesnt harm the public and, theres no significant or even important governmental interest that would be served by banning such expression.

What does the city say?

Cleveland spokeswoman Latoya Hunter Hayes did not respond to questions from cleveland.com and The Plain Dealer seeking confirmation that city prosecutors had provided Price with laws applicable to the case of the light display on Terminal Tower.

In an email, Hunter Hayes said only that projecting a light display sign on anothers property without the property owners permission, and without a permit when required, would violate city laws governing signs.

Obtaining a permit is the responsibility of a property owner, she said, but did not say whether a permit would have been needed by the United Steelworkers.

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First Amendment scholars weigh in on legality of Terminal Tower Biden Harris light display - cleveland.com

Photo illustration by Slate. Photos by Victoria Labadie - Fotonomada/iStock/Getty Images Plus, TikTok, andSoftulka/iStock/Getty Images Plus. This article is part of the Free Speech Project, a collaboration between Future Tense and the Tech, Law, & Security Program at American University Washington College of Law that examines the ways technology is influencing how we think about speech.

On Sunday evening, TikTok was granted another temporary reprieve when a judge blocked the Trump administration from banning it from app stores. But the app is still in a fight for its life as its Chinese owner, ByteDance, faces a deadline of Nov. 12 to either sell or spin off the U.S. arm of TikTok.

The Trump administrations Aug. 6 executive order banned TikTok and another Chinese app, WeChat, as a supposed national security threat. But as courts review the order, they arent paying much attention to the First Amendment speech rights of TikTok users.Thats a major oversight, because the First Amendment should save TikTok. We just need the courts to agree.

TikTok first sought to fight back against the executive order in federal court in Los Angeles, where it is headquartered. But its arguments centered around the Fifth Amendment due process violationsthe government was demanding a sale of the company, with some part of the proceeds going to the U.S. Treasury, without giving it a chance to defend itself from the charge that it was a national security threat. A minor argument included at the end said that the action violated First Amendment rightsbut only those of the company in its computer code. The company dropped the suit last week as it sought to negotiate with U.S. buyers, including Oracle and Microsoft.

Then a similar suit popped up in federal court in San Francisco, brought by a TikTok employee, Patrick Ryan, who worried that cashing his paycheck could be an act of treason under the broad language of the presidents order. (Disclosure: Im the executive director of the First Amendment Clinic at the Sandra Day OConnor College of Law at Arizona State University, which wrote a friend-of-the-court brief with the Electronic Frontier Foundation in this case; ASU is a partner with Slate and New America in Future Tense.) Again, the case relied on the Fifth Amendment, with no reference to the users rights. But after the government promised not to enforce the order against employees for being paid by the company, the suit was rendered moot.

At least WeChat users saw a little respect from the federal court examining the similar attempt to shut down that service. On Sept. 20, the court was persuaded that because the service is the primary source of communication and commerce for its Chinese-American usersit provides news and social media activities in Chinese and allows contact with users in China, where other American social media platforms are restrictedthe users had demonstrated serious First Amendment concerns that are the equivalent of censorship of speech or a prior restraint on the service..

But then again, that decision was just a preliminary injunction. And the Trump administration is now back in court to convince the judge to overturn the WeChat injunction, promising a secret filing this week to make the case that the service is a national security threat. So the First Amendment interests are still on thin ice.

But TikTok came back to court last week, this time in Washington, D.C., to again argue against the presidents ban. This time, TikTok expanded the First Amendment interests to include not just the companys code, but the companys role as a user and speaker on its own service, thus giving it a hook to argue for all users First Amendment rights. TikTok argued that the executive order functions as a prior restraint of users speech and must be subject to strict scrutinymeaning it is only valid if it is justified by a compelling government interest. As a fallback, TikTok argued that because it affects speech, it must at least be subject to intermediate scrutiny justified by a substantial government interest. (The difference between a substantial and a compelling interest is just the sort of question that keeps lawyers employed.)

And while the court granted the preliminary injunction Sunday evening after a rare weekend hearing, it didnt mention the First Amendment in its decision, instead relying on an exception to the International Emergency Economic Powers Act, which was the basis of the authority for the executive order, for informational materials and personal communications.

These disputes over TikTok and WeChat come amid a much bigger conversation over the legal rights and obligations of social media companies, even as courts have made clear in recent years that these forums deserve strong legal protections. The U.S. Supreme Court in 2017 struck down a North Carolina law barring registered sex offenders from using the internet and social media platforms in Packingham v. North Carolina. But that decisions First Amendment findings were firmly rooted in a case from 20 years before, Reno v. American Civil Liberties Union, when social media as we know it today did not exist.

Partially quoting Reno, the court stated that, While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspacethe vast democratic forums of the Internet in general, and social media in particular. The court continued: In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics as diverse as human thought.

And TikTok takes things a step further. Posts made to the platform are widely shared and often connected by themes. In fact, its the algorithm that chooses what to show a user that is credited with TikToks popularity, and its the ultimate ownership of that algorithm that is the sticking point in the sale of the company. With posts being view by thousands, if not millions, of strangers, the service has, as the New York Times reported, become an information and organizing hub for Gen Z activists and politically-minded young people. Another Times article said it has has amplified footage of police brutality as well as scenes and commentary from Black Lives Matter protests around the world, with videos created and shared on the platform frequently moving beyond it.

Much of the highest-profile political activism on TikTok has focused on President Trump. Most notably, a group of TikTok teens claim to have launched a campaign to inflate the attendance expectations at Trumps Tulsa, Oklahoma, rally in June. Another TikTok user, Sarah Cooper, has gained notoriety for her satirical posts about the president, where she points out what she sees as the absurdities of some of his statements merely by lip-synching short audio clips of his speeches.

So if the fight over TikTok involves politically controversial and socially active speech, but the legal battle centers on the Fifth Amendment claims and other statutory limits on presidential powers, the way to elevate the First Amendment interests is to emphasize to courts that the freedoms of the Bill of Rights are all tied together.

This means that when the court is considering a due process claim, but that claim has a fundamental and drastic effect on First Amendment rights, the speech interests supercharge the other constitutional interests and demand the highest standard of scrutiny under the law. This takes us back to the difference between strict and intermediate scrutiny, and the nature of the interest that must be demonstrated by the government. And thus, when the First Amendment is so clearly implicated, courts must always apply the strictest scrutiny, which generally means that the speech-restrictive law will fail this difficult test. So a law that completely shuts down a social media platform should never be tolerated.

The Supreme Court has most clearly recognized this interplay in the context of the

Fourth Amendment, in the 1965 case Stanford v. Texas. When a search warrant implicates First Amendment interests, the warrant requirement to particularly describe the things to be seized is to be accorded the most scrupulous exactitude when the things are books. No less a standard could be faithful to the First Amendment freedoms.

These rights also require limited activity by the government, not sweeping decisions to shut down an entire social media platform. The high court held in 1963 that because the First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. The court will not presume that the statute curtails constitutionally protected activity as little as possible.

If theres a national security threat due to access to users information by foreign powers, that access can be regulated consistent with the First and Fifth Amendmentsby imposing controls on monitoring or reporting on user data, for instance. But the social media platform cannot be silenced.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

Original post:
TikTok and the First Amendment - Slate