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Some who have heard that President Trump cannot block people from his Twitter account think other elected officials cannot block people. This is wrong. Almost all elected officials can block people from their Twitter accounts and not violate the First Amendment.

The part that is missed is the first five words of the First Amendment "Congress shall make no law." It was designed to limit what laws Congress could create. In doing so it also limits the executive branch as its relevant authority is derived from the laws passed by Congress. The First Amendment thus stops executive officials in their official capacity from limiting speech they don't like, but doesn't stop individuals acting in their private capacity.

For official government accounts, for instance @WhiteHouse or @DepofDefense, upon creating that account the government creates a designated public forum in which people are allowed to response to the tweets issued by these official accounts. If the government were to block people from responding to these accounts because the government didn't like their opinions, it would be engaged in viewpoint discrimination that is prohibited by the First Amendment. However, if Twitter allowed accounts to turn off all responses, this would likely be allowed, as it wouldn't be discriminating based on viewpoint.

But most elected officials are legislators and not even a part of the executive branch. They almost always created these accounts long before they were in office as their personal account. Even a campaign account would still be private, not a government account. The First Amendment only limits the laws that Congress passes as a body, it does not limit individual members of the legislature. You have no right, for instance, to invade the home of a congressman to protest some issue that is their property.

The story becomes a bit more complex for the accounts of the president and vice president. They are a part of the executive branch and so are limited in their official acts by the First Amendment. The official accounts of the president, for instance @POTUS, are government accounts created and set up as a designated public forum by the government and thus the government is limited by the First Amendment.

But what about @realDonaldTrump? Is that an official account? Trump acknowledged that he uses the account to, among other things, "announce official decisions." The president used the account to announce the nomination of the new FBI director and his new ban on transgender individuals in the military.

Given these facts the 2nd Circuit Court of Appeals found that the president had chosen to transform his personal account into the official government account of his office as president. This means that he is no longer able constitutionally to block people from responding to his tweets based on viewpoint.

The problem for the 2nd Circuit is when did this occur? By what act did the president transform his previous private account into the public one of his office? Merely speaking about his official acts through the account isn't enough. The 2nd Circuit isn't exactly clear as to when this happened. The fact that the account was created before Trump was president and will likely continue as a private account after he leaves is a strong factor suggesting the 2nd Circuit may be wrong and that other courts may decide the same issue differently.

But, at least for Trump, it doesn't matter as the 2nd Circuit has decided that Trump has adopted his Twitter account as an official account of his office and therefore cannot block people. This reasoning doesn't apply to almost any other elected official. Even Vice President Pence has not used his account in the same way that Trump has and could still block people.

It is possible the 2nd Circuit decision will apply to some state governors and other state executive branch officials. It will turn on whether those officials used their Twitter account as the official account of their office, such as announcing official decisions and designating the accounts as their "official" accounts of their office.

But almost all elected officials are in the legislature, either federal or state, and as such their Twitter accounts cannot possibly be limited by the First Amendment. There was no law upon which such accounts base their authority, and so the First Amendment simply doesn't apply.

Devin Watkins is an attorney for the Competitive Enterprise Institute.

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PRO/CON: Can elected officials block individuals on social media? Yes - The Intelligencer

Evangelicals who minimize the importance of President Donald Trump's judicial appointments betray a naivete about the perils to religious liberty in the United States, perils that have been growing over the past decade.

Many people, outside of the relatively small group of constitutional law professors and Supreme Court and appeals courts practitioners, may not grasp the sheer number of cases on the religious clauses of the First Amendment that have reached the high court in recent years. Six of these cases illustrate the stakes. (There are scores more religious liberty cases that are resolved in federal district and circuit courts, as clashes between the world of faith and the vast administrative state in the United States accelerate.)

In 2014, in Burwell v. Hobby Lobby Stores , the Supreme Court decided, by a 5-to-4 vote, that the Affordable Care Act's mandate that for-profit corporations supply their employees with contraceptives -- even forms of contraception violating the corporations' owners' beliefs -- was barred by the Religious Freedom Restoration Act. Had the court majority gone the other way, there is no doubt that Hobby Lobby, a company employing 32,000, would have closed. The Green family, who owns that company, was not going to "bend the knee" to the demands of the government had they lost. Justices Anthony Kennedy and Antonin Scalia sided with the company's religious liberty interests.

Also in 2014, in the case Town of Greece v. Galloway, the court -- again by a vote of 5 to 4 and again with Kennedy and Scalia in the majority -- held that a town's practice of opening its town board meetings with a prayer offered by members of the clergy did not violate the Constitution's establishment clause because that practice was consistent with the tradition long followed by Congress and state legislatures. Greece did not discriminate against minority faiths in determining who offered prayers, and the prayers did not coerce participation by anyone. Secular absolutists wanted this and similar practices in other jurisdictions banned.

The court in 2017, by a vote of 7 to 2, ruled in Trinity Lutheran Church of Columbia Inc. v. Comer that excluding religious organizations from aid programs run by governments violates the free exercise clause of the First Amendment. That two members of the court thought religious preschools were banned from state grants to upgrade playgrounds for safety purposes illustrates just how extreme is the anti-religion animus among some within the judiciary.

The court's 2018 ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission upheld the right of a baker to refuse to make a cake for a same-sex wedding, but only because the Colorado Civil Rights Commission seemed hostile toward religion. Don't be misled by the 7-to-2 vote. It was a very close-run decision. Meanwhile, the persecution of the baker by Colorado's extreme anti-faith militants has continued.

The court, also in 2018 and again by a 5-to-4 vote, held in National Institute of Family Life Advocates v. Becerra that a California law violated the First Amendment because it required "pro-life" pregnancy centers to provide notices about the availability of abortion services. These centers are almost always run by faith-based groups. The California law was a "jam down" statute by the anti-pro-life forces dominant in the California legislature, which has moved further to the left in recent years.

The Supreme Court held the line against absurd interpretations of the Constitution's bar on establishment of religion in 2019's American Legion v. American Humanist Association. Although the lower court had ordered the demolition of a large cross that had stood in a public park in Maryland for a century, the court -- voting 7 to 2 -- held that the display and maintenance of such a large memorial by a local government did not violate the establishment clause. Keep in mind the lower court had held exactly the opposite.

Battles over religious liberty continue. The court has recently agreed to review decisions by the U.S. Court of Appeals for the 9th Circuit crucial to the future of religious education. The high court's decision should arrive by June. In this proceeding, the decisions of two Catholic schools -- St. James School in Torrance, Calif., and Our Lady of Guadalupe School in Hermosa Beach. California -- concerning two teachers and whether they could continue to teach at these schools were upheld by trial courts but reversed by two different panels of the 9th Circuit, thought the most liberal circuit court in the country. This is a major free-exercise case that will affect tens of thousands of faith-based schools.

Critics of the president who play down the importance of Trump's judicial appointments make an enormous mistake. For those whose faith is crucial to their lives, "Trump judges" make all the difference in the world.

Hugh Hewitt hosts a nationally syndicated radio show on the Salem Network. The author of 14 books about politics, history and faith, he is also a political analyst for NBC, a professor of law at Chapman University Law School and president of the Nixon Foundation.

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Column: Evangelicals should thank Trump for protecting their religious liberty - The Oakland Press

The election of President Donald Trump will likely define this decade, but the breakdown in our political system which sowed deeper partisan divisions and ultimately paved the way for his White House victory can be traced back to a single January day almost exactly ten years ago.

On Jan. 21, 2010, then-Supreme Court Justice Anthony Kennedy cast the deciding vote in the Citizens Unitedcase, which was brought by a group chaired by David Bossie, who would later serve as Trumps deputy campaign manager.

Kennedy wrote in the majority decisionthat limits on independent expenditures violated the First Amendment rights of corporations and other groups, effectively overturning spending restrictions dating back more than a century.

The decision allowed corporations to spend unlimited money on campaign ads as long as they did not formally coordinate with candidates or political parties. According to Kennedy, there could not be corruption, because an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.

Some have argued that the ruling was the logical next stepafter the courts 1976 Buckley v. Valeodecision, which said election spending limits may violate the First Amendment. But the Supreme Court ruled in favor of corporate limitsin 1990 and thenupheld limitson corporate and union spending in 2003.

The Citizens Unitedruling was later compounded by Republican efforts to block transparency rules, Federal Election Commission rulingsand further court decisions like McCutcheon v. FEC, paving the way for the creation of super PACs, or committees which can spend unlimited sums of money to promote or oppose candidates while hiding the identities of their donors.

The impact of the Citizens Unitedruling and subsequent campaign finance changes are undeniable. In 2010, the biggest Republican donor of the election cycle spent $7.6 million to support conservative candidates, according to the Center for Responsive Politics(CPR). Just eight years later, casino mogul Sheldon Adelson and his wife, Miriam, donated $122 million to support GOP candidates, or more than 15 times as much.

Democrats pumped big money into elections, too. Presidential contender Mike Bloomberg spent $95 million during the last election cycle, while fellow billionaire candidate Tom Steyer spent more than $73 million, according to CPR data.

There was certainly loads of money pumped into elections prior to Citizens United. The 2008 presidential election, which was the last national contest before the Supreme Court decision, saw about $338 millionin outside spending. But the amount of outside cash injected into the presidential race skyrocketedto more than $1 billion in 2012 and $1.4 billion in 2016.

Such massive expenditures are not limited to presidential races. The 2018 midterm election cycle was the first in history to see more than $1 billion in outside spending up from $69 million just four cycles earlier and $567 million in 2014, according to the CPR.

Super PACs quickly became the biggest outside spenders. In 2018, the House Republican-linked Congressional Leadership Fund spent $136 million, the Senate Democratic-aligned Senate Majority PAC spent $112 million and the Mitch McConnell-connected Senate Leadership Fund spent $94 million, according to the CPR.

Though both parties have raised and spent hundreds of millions in outside money and the Citizens Unitedruling has been criticized by both former PresidentBarack Obamaand Trump researchers at the University of Chicago, Columbia University and the London School of Economics and Political Science found that the rise of dark money has resulted in a huge advantage for Republicans in state legislature races, particularly in states with weak unions.

We find that Citizens United increased the GOPs average seat share in the state legislature by five percentage points. That is a large effect large enough that, were it applied to the past twelve Congresses, partisan control of the House would have switched eight times, the researchers wrote in a Washington Post op-ed. In line with a previous study, we also find that the vote share of Republican candidates increased three to four points on average.

The result has been a shift much further to the right in numerous state legislatures and an increase in ideological extremism, which was more prevalent among Democrats, according to the study.

In the 2010 election, the first to see a massive upswing in outside money, Republicans captured two dozen state legislative chambersahead of a game-changing nationwide gerrymandering effort, which made it harder than ever for Democrats to win back the seats they lost.

Without Citizens United every frontline Congressional race of the last two cycles are TOTALLY different,Fordham Law Professor Zephyr Teachouttweeted. A billion in outside spending in 2018. And that is just a tiny fraction of the impact.

Despite Kennedys insistence that there could be no corruption because candidates cannot coordinate with super PACs, the ruling has also led to corruption as candidates flout rules preventing them from coordinating with the PACs.

The supposed barrier between candidates and unrestricted super PACs is flimsier than ever, Roll Callreported just four years after the ruling. As midterm elections approach, complaints are rolling into the FEC from both parties about super PACs that share vendors, fund-raisers and video footage with the politicians they support.

GOP leaders like Paul Ryan devised ways to solicit moneydirectly from billionaires like Adelson by using go-betweens. The New York Timesreported in 2015 that Republican presidential candidate Carly Fiorina had aggressively exploited loopholes to allow a super PAC to effectively run her campaign.

And the corruption is not merely limited to exploiting loopholes in the law. Obama warned in a State of the Union speech that the Citizens Unitedruling could lead to foreign interference in U.S. elections. Supreme Court Justice Samuel Alito could be seen mouthing the words, Not true.

But Obama's foreshadowing turned out to be remarkably true. Lev Parnas and Igor Fruman, the two associates of Trump's personal attorney, Rudy Giuliani, were recently indicted on charges that they illegally funneled foreign moneyto Republican politicians, including a $325,000 contribution to a pro-Trump super PAC.

George Nader, an adviser to Saudi Arabia and the United Arab Emirates who was linked to efforts to aid Trumps campaignduring the election, was also indicted for allegedlyfunneling $3.5 million into elections, including a $1 million contribution to a Democratic super PAC.

In 2012, a foreign-owned company made a $1 million contributionto a pro-Mitt Romney super PAC.

Democratic presidential candidates, including Sen. Bernie Sanders, I-Vt., have premised their campaigns on driving big money out of politics. Sanders has long called for a constitutional amendment to repeal Citizens United, which was echoedby Sen. Elizabeth Warren, D-Mass., and others at the party's December primary debate.

But it may be nearly impossible to meet the high threshold to ratify a constitutional amendment. There has only been one amendment ratified since 1971. While House Democrats voted to approve H.R. 1, which called for the ruling to be repealed, there appears to be little to no support for the legislationfrom Republicans in the upper chamber.

Groups like the American Civil Liberties Union have decried these efforts as attempts to ban political speech.

In our view, the answer to that problem is to expand not limit the resources available for political advocacy. Thus, the ACLU supports a comprehensive and meaningful system of public financing that would help create a level playing field for every qualified candidate, the organization said. We support carefully drawn disclosure rules, we support reasonable limits on campaign contributions and we support stricter enforcement of existing bans on coordination between candidates and super PACs.

Some local governments have tried to counter the rise of dark money with public financing. Seattles democracy vouchersgive voters $100, which they can donate to any campaign in a local election. Democratic presidential candidate Andrew Yang has proposed a similar Democracy Dollarsprogram, which would expand this initiative across the country.

But while cities, states and federal lawmakers grapple with the rise of dark money in politics, one thing that is clear is that Citizens Unitedirrevocably changed politics over the course of the last decade and beyond.

Kennedy himself admitted in 2015that the disclosure requirement he believed would fix any potential issues of corruption was not working the way it should. FEC Commissioner Ann Ravel quit in 2017 over the state of campaign finance, writing in her resignation letter that our political campaigns have been awash in unlimited, dark money" since the Citizens Uniteddecision.

Most of the funding comes from a tiny, highly unrepresentative segment of the population, she wrote. Disclosure laws need to be strengthened, the broken jurisprudence of Citizens United re-examined, public financing of candidates ought to be expanded to reduce reliance on the wealthy and commissioners who will carry out the mandates of the law should be appointed.

A Brennan Center reportpointed out that a small wealthy group of Americans now wields more power than at any time since Watergate, while many of the rest seem to be disengaging from politics.

This is perhaps the most troubling result of Citizens United: in a time of historic wealth inequality, report author Daniel Weiner wrote, the decision has helped reinforce the growing sense that our democracy primarily serves the interests of the wealthy few and that democratic participation for the vast majority of citizens is of relatively little value.

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The Citizens United ruling broke American democracy at the start of the decade. It never recovered - Salon

Stevens, who died on July 16 at the age of 99, is being remembered today as a justice who combined passionate advocacy with civility, a thoughtful bow-tied figure who was unafraid to change his mind, a trait often in short supply among the leadership class. But it is just as accurate to remember him as a deep pessimist about what has happened to the high court as an instrument for expanding justice, a man who believed that the radical shift in the Courts direction required radical remedies.

Six Amendments was Stevens clearest expression of this sentiment. And when you remember that this book was written before Neil Gorsuch and Brett Kavanaugh joined the court, it can be read as a distant early warning of what is yet to comeand why only the nuclear option of constitutional amendments can change this course.

One of his proposals would overturn Citizens United and a series of other decisions that have steadily eroded Congress power over campaign financing, by declaring: Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

Another would change the Second Amendment to erase the individual right to bear arms pronounced in District of Columbia v. Heller. The Second Amendment would, in Stevens version, say only: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed. On its face, this would permit authorities to outlaw guns of every sort, hand guns and long guns alike.

A third amendment would explicitly prohibit states from gerrymandering legislative districts for partisan political advantage. His proposal flatly says a state must justify any departure from compact and contiguous districts and that The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.

A fourth would end the death penalty once and for all by defining it as a cruel and unusual punishment forbidden by the Eighth Amendment.

Why do these proposals give evidence that Stevens possessed a pessimistic frame? Because they represent an acknowledgement that the philosophy that dominated the Court for three-quarters of a century is moribund, with virtually no possibility of resuscitation.

Some of the conditions Stevens addressed in Six Amendments are the products of 5-4 decisions that represented a radical departure from settled precedents at the hands of majorities that were anything but practitioners of judicial restraint. The Heller case establishing an individual right to bear arms was a reading of the Second Amendment that former Chief Justice Warren Burgernot exactly a poster child for the ACLUcalled one of the greatest pieces of fraud on the American people that I have ever seen in my lifetime.

Citizens United saw a one-vote court majority reach far beyond the contours of the case before it to strike down Congress power to regulate much of the money flooding into the political system.

The Deaths That Shook Politics in 2019

And Stevens proposal to outlaw partisan gerrymandering anticipated this years 5-4 decision that such practices present political questions beyond the reach of the federal courts. More than half a century ago, the Court rejected the political question argument when it mandated one man one vote districts. Likewise, it has regularly thrown out district maps that were based on race. Further, the Pennsylvania courts had no problem in throwing out congressional maps that gave Republicans seats out of all proportion to the votes they received. In another time, a U.S. Supreme Court might have been receptive to the idea that grossly partisan districts effectively deprived voters of a fair chance to make their votes count.

As for the death penalty, Stevenswho regularly upheld the sanction in his first years on the Courtbecame steadily more skeptical, until in 2008 he said that the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes should be banned as a violation of the Eighth Amendment. Here, Stevens was clearly reflecting the view that the Constitution must be read as a living documentthat evolving standards make a punishment that was common in the late 18th century unacceptable today.

That living document notion has been under attack for decades by originalists such as Antonin Scalia and Clarence Thomas, who have argued that the living Constitution idea permits judges to turn their personal preferences into law. Its a view embraced by the newer justices; in a lecture honoring the late Chief Justice William Rehnquist, future Justice Brett Kavanaugh embraced Rehnquists rejection of the idea that nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so.

What Stevens did in his book was to concede the ground on which judicial liberals had triumphed so often. On issues from civil liberties to abortion to gay rights to criminal justice, justices appointed by Democratic and Republican presidents alike located a panoply of rights and powers in the Constitution that were not explicitly set down by the framers. Those days, Stevens implicitly argues, are over. The policies we want, Stevens is saying to his ideological allies, will not be won by interpreting the Constitution, but by amending it.

This is, of course, a prospect with no chancenoneof success in the current political universe. The idea of two-thirds of the House and Senate, and three-fourths of the states, ending the right to own a gun or the death penalty, or permitting federal campaign finance regulation, is on a par with the idea that small states will agree to give up equal representation in the Senate.

Stevens obviously knew this, which is why his book should be read with an elegiac sensibility, He was acknowledging that the Supreme Court that he was part of for 35 years is dead.

Politico Magazine first published a version of this obituary on July 17, 2019, shortly after Stevens' death.

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John Paul Stevens: The Pessimist of the Supreme Court - Politico

Garrett Epps: Dont let the First Amendment forget DeRay Mckesson

This is a theory of liability unknown to the First Amendment. In an important case arising from the civil-rights movement, the Court held in 1982 that protest leaders cant be sued for the violent actions of others unless the plaintiffs can show that the leaders themselves either engaged in violence or incited or directed the violence. Doe alleged incitement, but made no real attempt to show it.

Garrett Epps: Dont let the First Amendment forget DeRay Mckesson

The First Amendment and civil-liberties communities were shocked by the Fifth Circuits original decision, issued in April, which brushed aside the First Amendment with the breezy bromide that the First Amendment does not protect violence. The decision was unanimousWillett was on the panel, but the opinion was written by Judge E. Grady Jolly. (Judge Jennifer Walker Elrod was the third member.) That opinion was a dagger pointed at the heart of the treasured American right to protest against government action. If protest organizers can be sued, and possibly ruined, by lawsuits if anyone at their protest (even, say, an undercover police officer) turns violent, no ordinary citizen would dare organize protests.

Mckessons lawyers asked the Fifth Circuit to rehear the case en banc (as a full court); in response, the same panel withdrew its original opinion and substituted a new one that said, in legal verbiage, We agree with ourselves and by golly, we are right.

The case landed in the Supreme Courts inbox on December 6. Mckessons petition for the Court to hear the case, written by lawyers from the American Civil Liberties Union, pointed out that the Fifth Circuit panel decision flatly defied the Courts own precedent in a landmark case called NAACP v. Claiborne Hardware. Advocates of free speech were holding their collective breath waiting to see whether this Court, which preens as a First Amendment champion when the rights of corporations or the rich are at issue, would call out the wayward panel or silently ratify its radical change in the law.

The latter course just got harder. Willett, a Trump appointee and former Texas Supreme Court justice, has now changed his vote and issued a full-throated defense of the idea that free speech covers even unruly protest.

I have had a judicial change of heart, Willett wrote. Admittedly, judges arent naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, Wisdom too often never comes, and so one ought not to reject it merely because it comes late.

The words are true, and the practice of judicial self-examination is, while not unheard-of, regrettably rare. In this case, reexamination led Willett to see two gaping holes in the majoritys case. First, he pointed out, despite the panels earlier decision, its not clear that even Louisiana tort law would support a lawsuit against Mckesson. To reach that conclusion, the panel had to, in essence, make new Louisiana state law. Every second-year law student knows that is a practice courts of appeals are supposed to avoidespecially when doing so creates a federal constitutional issue.

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A Stunning Vote Reversal in a Controversial First Amendment Case - The Atlantic