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Picking a Supreme Court nominee can be less a science than a kind of holy divination. Its an exercise not only in prophesizing a judges future decisions based on past actions, but also predicting which questions he or she might one day be asked. But one thing about Donald Trumps nominee, Brett Kavanaugh, is certain. If he is confirmed to fill Justice Anthony Kennedys seat, Kavanaugh will not only become a decisive vote on cases shaping the future of administrative agencies, religious liberties, gun and abortion rights, and environmental protections, he will also be joining a court whose conservative majority has redefined the First Amendment, making it a powerful deregulatory toola process Kavanaugh is poised to accelerate.

In its last term alone, the Supreme Court decided four landmark cases on First Amendment grounds. In one, conservative Justices overturned a California state law that would have required anti-abortion crisis pregnancy centers to disclose information about abortions. The Justices said that because the law compelled the organizations to speak against their will by posting a government notice, it violated the First Amendment. In another case, Janus v. AFSCME, the court overturned a 41-year-old precedent requiring public-sector employees to pay nonpolitical union fees. The Justices said that because the provision compelled employees to speak by paying dues, it too violated the First Amendment.

The courts sweeping definition of what constitutes free speech has alarmed some of its members. In her dissent in Janus, Justice Elena Kagan accused her colleagues of weaponizing the First Amendment. She warned that because almost all economic and regulatory policy affects or touches speech, judges can use expansive definitions of speech as a tool to unravel regulations and overturn precedents.

Its a project that court watchers say has been decades in the making. In the 1970s, liberal lawyers, acting on behalf of consumers, were the first to bring cases designed to expand the scope of the First Amendment. But conservative lawyers quickly saw an opportunity. By the end of that decade, conservative judicial organizations were launching an onslaught of First Amendment cases of their own, with the goal of deregulating and limiting government power, says Frederick Schauer, a professor at the University of Virginia School of Law. Ilya Shapiro, a senior fellow at the libertarian Cato Institute, says he now advises lawyers to find free-speech arguments whenever they can. If a judge overturns a regulation or precedent on the grounds of government overreach, he explains, thats seen as controversial and partisan. If a judge reaches the same conclusion on the grounds of protecting free speech, its easier for people to accept.

The past decade has borne fruit for this conservative judicial strategy, with the 2010 Citizens United case acting as a bellwether. In that case, the court ruled not only that corporations were speakers protected under the First Amendment, but also that corporate campaign contributions constituted protected speechand therefore could not be limited. The decision triggered an avalanche of subsequent cases built upon similar logic. In 2011, the court struck down a Vermont law barring the sale of subscriber information to pharmaceutical companies. The Justices ruled that speech in aid of pharmaceutical marketing is a form of speech protected by the First Amendment. A year later, the D.C. Circuit Court of Appeals struck down a rule requiring companies to post federal labor protections on the grounds that it compelled companies to speak against their will. The same court later overturned an FDA rule requiring graphic warning labels on cigarettes, saying they too violated free speech by compelling tobacco companies to speak.

As a D.C. Circuit judge, Kavanaugh has a record on First Amendment cases that is slim but suggestive. Last year he objected to his fellow judges refusal to rehear a challenge to the FCCs net-neutrality rule. The rule, which was repealed this year, would have required Internet-service providers to treat data from all websites equally. Kavanaugh wrote that the courts view violated the Internet-service providers First Amendment rights by restricting their editorial discretion. Kavanaughs decision in a 2010 case on federal limits on contributions to political parties also showed sympathy for free-speech arguments. While he upheld the limits in that case, citing a 2003 Supreme Court precedent, he left the door open to a future First Amendment challenge. As a Supreme Court Justice, Kavanaugh would have considerably more latitude to join fellow conservatives in redefining First Amendment protections.

Critics see the recent explosion of broad free-speech rulings as evidence of increasing judicial activisma term that describes court rulings that advance an ideological agenda. Historically, thats a charge leveled by the right against progressive judges. But Burt Neuborne, the founding legal director of the Brennan Center for Justice at NYU School of Law, says the conservative Justices are now deliberately using the First Amendment as a deregulatory device. Kavanaughs confirmation to the court, he says, would cement that trend for the foreseeable future.

This appears in the July 30, 2018 issue of TIME.

See the article here:
How the First Amendment Became a Tool for Deregulation | Time

Some notable First Amendment court cases include:

Schenck v. United States, 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I.

Schenck v. United States helped define limits of freedom of speech, creating the clear and present danger standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistant as dangerous to national security.

New York Times Co. v. United States, 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman, Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson, 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the Reagan administration.

The Supreme Court reversed a Texas courts decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

The rest is here:
First Amendment - Facts & Summary - HISTORY.com

The First Amendment has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause. The Establishment clause prohibits the government from "establishing" a religion. The precise definition of "establishment" is unclear. Historically, it meant prohibiting state-sponsored churches, such as the Church of England.

Today, what constitutes an "establishment of religion" is often governed under the three-part test set forth by the U.S. Supreme Court inLemon v. Kurtzman, 403 U.S. 602 (1971). Under the "Lemon" test, government can assist religion only if (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state.

The Free Exercise Clause protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of a "public morals" or a "compelling" governmental interest. For instance, inPrince v. Massachusetts, 321 U.S. 158 (1944), the Supreme Court held that a state could force the inoculation of children whose parents would not allow such action for religious reasons. The Court held that the state had an overriding interest in protecting public health and safety.

Sometimes the Establishment Clause and the Free Exercise Clause come into conflict. The federal courts help to resolve such conflicts, with the Supreme Court being the ultimate arbiter.

Check outsimilar casesrelated toEngel v. Vitalethat deal with religion in schools and the Establishment Clause of the First Amendment.

Originally posted here:
First Amendment and Religion | United States Courts

Question: What should everyone know about the First Amendment? Floyd Abrams: Well, I guess the first thing one has to know about the First Amendment is that it wouldnt be there at all if Thomas Jefferson had not insisted. The Constitution had been pretty well drafted and Jefferson, who was not at the Constitution Convention and who was in Paris at that time, basically took the position that without a Bill of Rights and in particular without a Bill of Rights that protected freedom of speech and freedom of the press, that he would not support the new Constitution.

So a Bill of Rightsthis Bill of Rights and this 1st Amendmentwas a essential ingredient of the Constitution from the start. And from the start it protected a number of different sorts of speech beliefs, conscience, and the like. It protects freedom of religion, it protects freedom of speech, protects freedom of press, protects freedom of assembly, all of them.

And through the many years since the drafting of the Constitution and the adoption of the Bill of Rights which of course starts with the First Amendment. Through that time period weve had many, many cases in the courts which have adopted through interpretation the First Amendment to new problems being sustained by the people and by the states as well. At the beginning, the First Amendment applied only to the Federal Governmentafter all it does say, Congress shall make no law. After the Civil War and the adoption of amendments post-Civil War, they were held to apply to the states but really not until late 1920s, early 1930s. So through most of American history the First Amendment really had nothing to do with what states did and what state law turned out to be.

There was state constitutions but the federal Constitution, the First Amendment, applied only to the Federal Government. Where have we gone? Well we have gone through the years in a direction generally of more protection. The First Amendment, remember, applies only as a protection against the government, not against private employers, not against friends, or enemies, or this, or that. It is a protection against the government. The government depriving people of their freedom of religion. The government is telling them in effect who to pray to or whether to pray at all, and in what way. And the government depriving people of freedom of speech or freedom of the press, or freedom of assembly. I mean, at its core it is a protection of human freedom by protecting against government overreaching.

That was debated a lot when the First Amendment was adopted. Alexander Hamilton said, Why do we need a Bill of Rights at all? Whoever said Congress could pass a law stripping the people of freedom of speech? They dont have the power to do it, so why do we need to have a Bill of Rights or why do we need a First Amendment in the first place? And, as I said, Jefferson insisted. Jefferson said, Any constitution for this country ought to say and say in so many words that there was a list of untouchable areas into which Congress could not transgress, into which the new Federal, National Government couldnt go."

And with that backgroundwhile even from the start there were problems, First Amendment problems, the Alien and Sedition Act was adopted in 1798, that close to the adoption of the Constitution and then the Bill of Rights. And it quite literally made it a crime to speak to badly of the President, then John Adams. Not the Vice President, because it was Jeffersoneven then we had politics. But it made a crime to say critical things about the President at least if they were "false," which of course lead to lots of issues about whats an opinion and whats a fact, whats true and whats false. But that law was our first law which on the face of it violated the First Amendment. Jefferson called it, living under a rain of witches. And ultimately the verdict of history as the Supreme Court came to say, the verdict of history was that the Alien and Sedition Acts were unconstitutional and through the years some acts of Congress have been held to be unconstitutional. Many acts, more recently of states have been held to be unconstitutional, and in all these ways the adoption of the First Amendment has been an incalculable protection of the public against overstepping by the government.

Recorded July 29, 2010

Interviewed by Max Miller

Read more:
The First Amendment in Five Minutes - Video | Big Think

April Ryan, of American Urban Radio Networks, raises her hand to ask a question of White House press secretary Sarah Huckabee Sanders during a press briefing at the White House

Conservatives who should be appalled by President Donald Trumps anti-media attacks have responded instead with a collective shrug.

Never mind that Trump has taken steps to block publication of a critical book, assures a typical Wall Street Journal editorialhe would never follow through, and the courts would never go along. The Journal likewise brushes off Trumps threat to open up the libel laws as familiar and feckless bluster. Trump may brand journalists the enemy of the American people and hand out fake news awards, goes the argument from the right, but his actions matter more than his words.

This sanguine take on Trumps campaign to demonize the news media overlooks the real-world damage it inflicts on journalists, both at home and abroad. Trumps words and actions have materially chilled speechin the U.S., where 78 journalists were attacked or arrested last year, and around the world, 262 journalists are in prison, 21 of them for publishing fake news. The toxic fallout includes death threats, anti-Semitic media harassment, physical attacks, and GOP governors who deny interviews. (One politician paid more than $5,000 in fines and restitution after body-slamming a reporter.)

American journalists on a recent panel co-hosted by the Newseum and the Committee to Protect Journalists described struggling to do their work in an unprecedented atmosphere of hostility, suspicion, stonewalling, and even fear. Death threats are routine. The FBI is on speed dial. So is the Secret Service, and the local police department, said panelist April Ryan, White House correspondent for American Urban Radio Networks, who has publicly tangled with Trump.

Foreign journalists are paying an even bigger price, prompting some conservatives to finally speak up. Trumps unrelenting attacks on the integrity of American journalists and news outlets have provided cover for repressive regimes to follow suit, wrote GOP Senator John McCain, of Arizona, in a recent Washington Post op-ed. McCain cited journalists arrested and systematically discredited in China, Egypt, Russia, Turkey, Venezuela, and elsewhere.

His fellow Arizona Republican, Senator Jeff Flake, noted in a Senate floor speech that such despots as Syrian President Bashar al-Assad and Philippine President Rodrigo Duterte have used the words fake news to justify their human rights abuses. Trumps use of Josef Stalins phrase enemy of the people to describe journalists is a testament to the condition of our democracy, said Flake, who added that of course, the president has it precisely backwarddespotism is the enemy of the people. The free press is the despot's enemy, which makes the free press the guardian of democracy.

Conservatives blithe dismissal of Trumps chilling impact is all the more striking given the First Amendments increasingly central place in conservative orthodoxy. The conviction, however unfounded, that campaign-finance limits would lead to book banning was at the heart of the Supreme Courts Citizens United ruling to deregulate corporate political spending. Since Hillary Clinton opposed that ruling, conservatives argue, she posed a greater First Amendment threat than Trump. Besides, they assure, Supreme Court Justice Neil Gorsuch will rigorously defend free speech.

But not all First Amendment defenders take Trumps media wars so lightly. None other than constitutional law expert Floyd Abrams, who led the GOPs charge to deregulate politics in the name of free speech in Citizens United, warned The Wall Street Journal in a letter that its editorial board is far too serene about Trumps bid to silence author Michael Wolff. Trumps threats have led to actual lawsuits, Abrams wrote, and not all publications and journalists can so easily shrug off such threats of financially crippling litigation.

In an interview, Abrams acknowledged that Trump would find it hard to expand libel laws, which now fall largely under state jurisdiction. But he warned that there is no guarantee that an extraordinary event, such as a terrorist attack, might not prompt Trump to push hard to federalize libel laws. Abrams said hes hopeful that Gorsuch will rigorously defend the First Amendment, but that no one knows how he might rule in a case that, say, pitted national security against free speech concerns. Trump has so far been unable to stifle speech of which he disapproves noted Abrams, but the unending drumbeat of criticism, accusation, and denigration of the press takes a toll.

Indeed, Trumps assault on free speech is far more direct, aggressive, and broadly destructive than anything yet seen in the United States. Hes threatened legal action to silence critics; called for news organizations to fire specific journalists; tweeted videos and images of himself inflicting bloody violence on figures bearing the logo of CNN, a favorite target; and has weaponized mainstream media outlets as fake news.

The news media, from cable channels dominated by shouting matches to news outlets that fail to check their facts, do share some of the blame for this mess. Only 33 percent of Americans have a very favorable or somewhat favorable opinion of the news media, noted a report from Gallup and the Knight Foundation, and 66 percent say the media are bad at separating fact from opinion. Such surveys reflect a larger news industry crisis in confidence, and come amid soul-searching forums like the one at the Newseum, and another this week at The Washington Post.

And progressives, too, have failed to consistently defend free speech. Campus political protests, while often overblown and even egged on by conservative provocateurs, have raised legitimate First Amendment concerns. Anti-fa activists have resorted to violence. President Barack Obama kept a tight rein on information, was not transparent, and aggressively prosecuted whistleblowers, according to Reporters Without Borders.

But Trumps assault on free speech goes far deeper, advancing a Soviet-style disinformation campaign that helps fuel what a recent Rand Corporation report dubbed Truth Decay. Trump treats facts as irrelevant and fungible, having made 2,140 false or misleading claims in his first year. Yet heightened disagreement about facts and how to interpret data, Rands report warns, contributes to government dysfunction, hurts diplomacy and economic investments, and poses a threat to the health and future of U.S. democracy.

And Trump may be gearing up to go further, materially weakening media protections in the U.S. Last year, 34 American journalists were arrested, many when they were covering protests, and one photojournalist went to trial (and was acquitted) for a felony offense. American journalists still enjoy far greater institutional protections than journalists in, say, Turkey, where 73 journalists are now imprisoned, notes Alexandra Ellerbeck, North American program coordinator at the Committee to Protect Journalists.

Attorney General Jeff Sessions has signaled plans to revise Obama administration media guidelines, making it easier for the Trump administration to subpoena reporters. Obama prosecuted eight leakers under the Espionage Act, according to CPJ, but the Trump administration has 27 leak investigations open. Any move that makes it harder for journalists to protect their sources is a fundamental and basic assault on information gathering and news reporting, warns Ellerbeck.

None of this seems to worry supposed First Amendment champions on the right. With a few exceptions, such as Flake and McCain, conservatives take Trumps assaults on free speech merrily in stride. As GOP election lawyer Jim Bopp recently assured the Center for Public Integrity:

Liberals refuse to understand with Trump that you cant take what he says literally. What is important about Trump is what hes doing and not what hes saying, and in practice, everything hes done is in step with maintaining a First Amendment-friendly approach to campaign finance.

Bopps comments shed light on the real reason Republicans dont really care whether Trump trashes press freedoms. For many on the right, the First Amendment is less important as a tool to protect speech than to protect money, and those who spend it. As ethics attorney Kathleen Clark, who teaches law at Washington University in St. Louis, puts it: Economic power, and the ability to exploit economic power, is at the center of their vision of the First Amendment.

Its not the only way that Republicans have swept aside Trumps threats to democracy, national security and the rule of law. If they just change the subject to Hillary Clinton or Neil Gorsuch, Republicans seem to think, all will be well. Nor is it the first time the GOP has elevated partisan politics above long-cherished principles. But given how highly conservatives purport to prize the First Amendment, its remarkable how casually theyve abandoned it.

This article has been updated.

See the original post here:
What First Amendment? - prospect.org