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Jack Greiner Published 5:17 a.m. ET Dec. 24, 2019

Jack Greiner, attorney for Graydon(Photo: Provided, Provided)

The United States Court of Appeals for the Fifth Circuit issued a recent ruling reversing the dismissal of a negligence case brought by a Baton Rouge police officer against Black Lives Matter activist DeRay Mckesson. The officer was injured in a protest McKesson organized in July, 2016.

The majority decision is interesting, but this is a case where the dissent may get more of the attention. In any event, the First Amendment issues matter.

The injured police officer filed the suit anonymously, so the opinion referred to him as Officer Doe. The court recited the facts as follows: On July 9, 2016, a protest illegally blocked a public highway in front of the Baton Rouge Police Department headquarters. . . . The Baton Rouge Police Department prepared by organizing a front line of officers in riot gear. These officers were ordered to stand in front of other officers prepared to make arrests. Officer Doe was one of the officers ordered to make arrests. DeRay Mckesson, associated with Black Lives Matter, was the prime leader and an organizer of the protest. In the presence of Mckesson, some protesters began throwing objects at the police officers. . . . The dismissed complaint further alleges that Mckesson did nothing to prevent the violence or to calm the crowd, and, indeed, alleges that Mckesson incited the violence on behalf of [Black Lives Matter]. . . . At some point, an unidentified individual picked up a piece of concrete or a similar rock-like object and threw it at the officers making arrests. The object struck Officer Does face. Officer Doe was knocked to the ground and incapacitated. Officer Does injuries included loss of teeth, a jaw injury, a brain injury, a head injury, lost wages, and other compensable losses.

Officer Doe contended thatMckesson was negligent for organizing and leading the Baton Rouge demonstration because he knew or should have known that the demonstration would turn violent.

In reversing the trial courts dismissal of Officer Does suit, the appellate court relied heavily on the fact that part of the protest involved the unlawful act of blocking a public highway. In the appellate courts view, that meant it was patently foreseeable that the Baton Rouge police would be required to respond to the demonstration by clearing the highway and, when necessary, making arrests. This knowledge apparently imposed a duty on Mckesson to exercise reasonable care in conducting his demonstration. Which means, I guess, he had a duty to make sure none of the protestors got violent. Seems like a tough standard to put on Mckesson.

And dissenting judge Don Willett (appointed by President Trump for anyone who is curious) agreed. He was skeptical that Mckesson assumed any such duty, framing the question whether the mere fact that a protest may become violent means that the protest organizer is liable for any violence that occurs. And as he noted, if theres no duty, theres no negligence. And if theres no negligence, theres no case. He urged the federal court to certify the case to the Louisiana Supreme Court to determine if Mckesson even had a duty. But he was outvoted.

Judge Willett also noted that even if Mckesson owed some sort of amorphous duty, the First Amendment would prevent the case from going forward. Judge Willett wrote that the First Amendment protects even impassioned and emotionally charged appeals for the use of force . . . unless [it is] clearly intended to, and likely to, spark immediate violence. The complaint cited to no facts to demonstrate Mr. Mckesson ever directed his followers to engage in direct acts of violence, nor does it indicate that Mr. Mckesson directed or controlled the assailant who actually injured Officer Doe. Absent those type of allegations,Mckessons speech, including his efforts to organize the protest, was protected by the First Amendment.

Judge Willett noted that in his last protest, Martin Luther King led demonstrators in a march down the streets of Memphis. During the march, some young men began breaking storefront windows. Police moved in and peaceful demonstrators as well as looters were injured. As Judge Willett noted, [h]ad Dr. King been sued, either by injured police or injured protestors, I cannot fathom that the Constitution he praised as magnificenta promissory note to which every American was to fall heirwould countenance his personal liability.

Judge Willett admitted that he had initially voted with the majority, but decided to change his mind. In doing so, pointed to one of my favorite quotes from Justice Felix Frankfurter, who said 70 years ago, [w]isdom too often never comes, and so one ought not to reject it merely because it comes late.

I think hes right.

Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

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Strictly Legal: Does the First Amendment matter to Black Lives Matter? - The Cincinnati Enquirer

First amendment rights in the United States only go so far. Shout fire in a crowded room for thrills or threaten to kill someone and you will find yourself on the wrong side of the First Amendment interpretation of what constitutes free speech. Joseph Cecil Vandevere was indicted, then convicted for posting a Twitter message in March 2018 that threatened then-Virginia State Senate candidate Qasim Rashid.

Vandevere was charged with interstate communication of a threat to injure a person. On Dec. 6, he was convicted by a federal jury for using social media to communicate interstate threats, said Andrew Murray, U.S. Attorney for the Western District of North Carolina.

Using social media to communicate threats does not qualify as free speech, Murray said. A threat is a threat, whether its communicated face to face, in writing or online. My office will hold accountable those who use any online form of communication to transmit threats.

On March 13, 2018, Vandevere, using the twitter name of @DaDUTCHMAN5, tweeted a photo of a lynching accompanied by the comment, VIEW YOUR DESTINY. The FBI interviewed Vandevere in July 2018, at which time he admitted to using social media under pseudonyms to send threatening messages.

Vandever said he made the threat Rashid because he did not agree with Rashids beliefs. The FBIs search of Vandeveres residence and computers provided evidence of similar harassment of other entities including a Florida synagogue using an alias Facebook account.

The judge dismissed the argument that Vandeveres tweet was protected by the First Amendment. Vandeveres attorney argued that his client wasnt a threat and no responsible person would interpret this communication as a serious expression of intent to do harm.

Well, theres federal statute 18 U.S. Code 2261A. Stalking. This statute specifically calls out actions that place a person in reasonable fear of death or serious bodily harm. Rashid noted that over the past few years he has referred approximately a dozen threats against him to law enforcement. Vandeveres threat was the first time one of his complaints evolved to a criminal charge. The threats spike, he said, whenever anti-Muslim rhetoric is shared by the political leadership of the United States.

FBI special agent in charge, John Strong, noted, Social media allows you to share your views with the world in seconds, but it does not give you the right to threaten violence against others. The FBI stands ready to investigate whenever threatening language crosses the line to a crime.

Vandevere faces up to five years in prison and a $250,000 fine.

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First Amendment Fight: Twitter Threat Ends in Conviction - Security Boulevard

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