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Donald Trump memorably threatened to open up libel laws as president, yet such an attack on the First Amendment would need to happen in the courts. And given a recent ruling in his favor in a defamation suit aimed at him, Trump knows full well that most judges maintain a very high bar for libel cases.

Even so, a libel suit can provide powerful interests with a potent weapon against intrepid reporters. Such a conflict is currently playing out in Brooklyn, and the drama features a notable cast of characters.

In October 2015, ProPublica published an investigative report on nursing home licensing in New York, which focused on the states largest for-profit network of such facilities, SentosaCare. The story questioned why, despite a record of repeat fines, violations and complaints for deficient care, SentosaCare continued to receive state approval when purchasing new nursing homes.

In March 2016, Jennifer Lehman, one of the two freelance reporters who wrote the piece, sent a letter to SentosaCares attorney, Howard Fensterman, requesting information for a follow-up story focused on the companys Medicare billing. Six days later, Fensterman filed a defamation suit in response to the October 2015 story.

Rather than target ProPublica, the complaint names Lehman and her fellow freelancer, Allegra Abramo. If the suit was intended to win damages, it would have made sense to target an established publisher with a sizable libel-insurance policy. Instead, the goal here appears to be stopping the reporters in their tracks.

Fensterman, a leading player in Nassau County Democratic politics, gained notoriety in 2014 for his aggressive defense of a nursing home on the Island after it brought in a male stripper to entertain the seniors. He is also counsel for (and a business partner of) SentosaCare, which is owned by Brooklyn resident Benjamin Landa, a central figure in Clifford Levys Pulitzer Prize-winning 2002 series in the New York Times exposing the harsh conditions faced by mentally ill residents in New York nursing homes.

Fensterman has been assisted in the case by his law partner Frank Seddio, the Brooklyn Democratic boss and president of the boroughs Bar Association. In New York City, the county machine typically hand-picks most of the State Supreme Court judges, but the one presiding in this case, Paul Wooten, was transferred from Manhattan, and is not a Seddio ally. Moreover, he has a strong track record of ruling in favor of defendants in defamation cases.

Such a cast made for lively theater at a late April appearance in Wootens courtroom, with the two sides debating the defendants motion to dismiss the case. Other than enter his name into the record, Seddio said nothing during the proceeding. According to one spectator (whos not involved in the case), the party boss appeared to be leering at Judge Wooten.

The crux of Fenstermans complaint concerns not whats in Lehman and Abramos ProPublica story, but what they left out (or whats known as libel by omission). When the story mentions investigations by New York State agencies into incidents of neglect at SentosaCare facilities, it does not include the fact that those same facilities had self-reported the incidents to the relevant agencies.

In advance of the first story, Fensterman had provided that information to the reporters, so he contends that the omission shows that the reporters intended to create reputational harm for SentosaCare. To drive home the point, he mentioned self-reporting five times in his short presentation at the dismissal hearing.

Laura Handman, retained by ProPublica to defend Lehman and Abramo, stressed to Judge Wooten that the piece is not a cover-up story. Instead, she explained, the reporters examined how nursing homes with track records of harmful incidents continue to gain new licensing, thus negating the importance of the self-reporting. According to defamation case law, Handman argued, unless omitted information changes the gist, or the meaning, or makes it false, then the decision of what to include or not to include are left to the wisdom of the journalist and publisher.

Trevor Timm of the Freedom of the Press Foundation tells the Beast that in general, The First Amendment allows for broad editorial discretion on what is and isnt reported on stories of public importance. And if public figures and institutions were allowed to sue every time they thought one ancillary alleged fact or another was left out of an article, it would grind journalism on any subject to a halt.

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In order to deter such a flood of retaliatory lawsuits, many statesincluding New Yorkhave enacted anti-SLAPP (strategic lawsuits against public participation) legislation, which allows for judges to award damages to defendants and force plaintiffs to pay for their legal costs. As Handman stated at the April hearing, This suit is a classic example of a well-financed company using a defamation suit to basically censor their critics. In short, a classic SLAPP action.

Wootens ruling on whether the case will go to trialor if not, whether he will impose anti-SLAPP penalties on the plaintiffsis expected sometime in the next few months. Rest assured that the stakes are high for everyone involved, from the lowly freelance investigative reporters to the mighty Brooklyn Democratic Party boss.

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The Brooklyn Machine vs. the First Amendment - Daily Beast

The Becket Fund for Religious Liberty has sent a brief to the Supreme Court in the travel-ban casebut unlike most of the many briefs in that case, it takes no position on whether the Court should uphold or nullify the ban. Its goal, rather, is to make sure that the court refrains from distorting the meaning of the Constitutions prohibition on religious establishments in the process of deciding the case.

Beckets argument is that the Court should decide the case under the free-exercise clause rather than the no-establishment clause of the First Amendment. If the ban unconstitutionally targets Muslims, that is, it impinges on their right to practice their religion. It doesnt establish Christianity (or non-Islam) as the state religion.

It seems like a pretty obvious point, but since some courts have gotten the issue wrong Becket spells it out in some detail. The executive order doesnt create an establishment because it does not place the state in control of any churchs doctrine or personnel, doesnt compel attendance of any church, doesnt provide financial support of any kind to any church, and doesnt put any church in charge of important public functions.

The Becket lawyers are not just concerned that the Court might apply the establishment clause to the case; theyre also concerned that they will apply the clause using the Lemon test. Under that test, developed in a 1971 case striking down state aid to religious schools, judges must decide whether a governmental policy has a legitimate secular purpose and whether it involves excessive government entanglement with religionboth, conservative lawyers have usually contended, highly subjective judgments. The Court has moved away from Lemon but lower courts considering the case have applied it.

As long ago as 1993, Justice Antonin Scalia likened the Lemon test to some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried. Becket wants the ghoul killed and buried for good. But theres a chance that the passions this case has called forth will bring it back once more.

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Travel Ban Case Could Harm First Amendment Law | National Review - National Review

His belief that the Sandy Hook elementary school shooting of 2012 was a hoax perpetrated by false flag government agents for the purpose of inhibiting gun ownership in the United States goes beyond distaste. This is a man who has looked parents in the eye and declared their dead children to have never existed.

Free speech is a freedom we enjoy despite the right's continued attacks against the free press (see Republican attempts to prevent congressional interviews during Jeff Sessions' testimony to Congress earlier this week) and to portray Alex Jones as a victim in this context is outright repugnant.

Let us not forget that it was Alex Jones's right-wing website that pushed the "Pizzagate" conspiracy that led to a member of the alt-right threatening the institution with a firearm. As LaVenuta doubtless knows, speech considered to be inciting violence is not protected under the First Amendment.

This goes beyond simply portraying Alex Jones as a "bad guy." His website affords him his First Amendment rights and to give him a platform on a nationwide network is irresponsible and dangerous. The right's consistent self-victimization is hypocritical to the point of being ludicrous, and to push this narrative as an attack on the First Amendment is nothing short of outrageous.

Roth lives in Fargo.

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Letter: First Amendment rights defense of Alex Jones is outrageous - INFORUM

If nothing else, President Trump is putting it in stark, clear terms for us. He is out to destroy the independent press in the United States and replace it with some sort of information system that is subservient to him personally and his version of reality.

Trump continued his deliberate, ongoing assault on the free press Tuesday in yet another early-morning tweet:The Fake News Media has never been so wrong or so dirty. Purposely incorrect stories and phony sources to meet their agenda of hate. Sad!

This nonstop campaign to convince people that the independent press is deliberately making up news puts things to a very simple test. Either:

His assertions that a substantial amount (or the entirety?) of normal, mainstream coverage is somehow deliberately fake is not the utterance of a healthy person. It does not represent a connection to reality and/or it represents an attempt to substitute propaganda for information. He cant make it any plainer. Dont scoff. There is apparently already an audience and appetite for Trumps version of events, whatever that version is on any given day. And Trump is using the presidency of the United States to undermine whats left of a fact-based reality.

Dont think this matters? Then enjoy becoming the subject in the famous Asch Experiment. And heres another test for you: Have you tried recently having a productive conversation with a Trump supporter who is operating off a completely different fact set? How did that go?

When the propaganda model replaces the free press model, you can either go along, or it is you who will be judged insane.

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President Trump hates the First Amendment. He thinks it's sad. - Washington Post

Last week, I blogged about whether the First Amendment restricts President Trumps ability to block users from his @RealDonaldTrump Twitter account. The Knight First Amendment Institute said yes. I said probably not, because I thought Trumps actions with regard to @RealDonaldTrump an account that (unlike @POTUS) precedes the Trump presidency and that conveys Trumps individual voice would likely be viewed as not government action but rather his own individual decisions and thus not bound by the First Amendment. I said (and still think) that its a close call, but I noted that some cases had suggested that even speech on government matters by high government officials may be seen as their own speech, rather than the governments, and I thought this was so here.

Holly O'Reilly, a snarky Twitter critic of President Donald Trump, got blocked by him online. She says it's "a 21st-century violation of free speech." (Adriana Usero/The Washington Post)

Jameel Jaffer from the Knight Institute was kind enough to respond. Ill quote his entire response and then offer a few thoughts of my own. (Amanda Shanor (Take Care) and Robert Loeb (Lawfare) have posted analyses that are similar to the Knight Institutes, though more detailed and worth reading.)

First, Jaffers thought:

Does the First Amendment Restrict Trump on Twitter?

The First Amendment binds President Trump when he acts in his official capacity. How do we know, though, when hes acting in his official capacity, rather than his personal one?

Earlier this week, the Knight Institute sent President Trump a letter on behalf of people whom President Trump had blocked from his most-followed Twitter account, @realDonaldTrump. We argued that the account constitutes a designated public forum under the First Amendment and that consequently President Trump is barred from blocking people from it simply because they ridiculed or disagreed with him. But why does the First Amendment apply at all, one might ask, to @realDonaldTrump, an account that Trump opened long before he became president and that could be understood as the personal counterpart to @POTUS, the official presidential account?

Professor Volokh argues (tentatively) that @realDonaldTrump is the megaphone of Trump-the-man, not Trumpthe-president. Government officials, he points out, can operate in two different capacities on behalf of the government and expressing their own views. He writes that Trump opened @realDonaldTrump before he became president, that the account is understood as expressing [Trumps] own views apparently in his own words and with his own typos, and that the account does not express the institutional position[s] of the executive branch. He distinguishes @realDonaldTrump from @POTUS, which has a handle more focused on the presidents governmental role. He states that the question falls near a borderline that hasnt been mapped in detail, but he concludes (again, tentatively) that @realDonaldTrump is not a public forum.

Its of course true that public officials sometimes act in their personal capacities. A president probably has less latitude to act in a personal capacity than, say, a city councilor does, but even a presidents statements will sometimes be attributable to the president-as-citizen rather than the president-as-president. If President Trump established a private Facebook page to communicate with business acquaintances about golf, no one would contend that the First Amendment barred him from excluding people from the group based on their views.

But wherever the line between personal accounts and officials ones, @realDonaldTrump must be on the official side of it. Here are the facts, as I understand them:

If these are the facts, as I think they are, I dont think @realDonaldTrump can fairly be characterized as a project of Trump-the-man, even if it began as his project. Whatever the account once was, its now an important channel through which Trump-the-president communicates with Americans about his presidency. Its not a personal account; its an official one and consequently its an account to which the First Amendment applies.

Heres my thinking:

1. That Trump is talking about government-related matters to the public, including what he is doing and what he will do, doesnt make it government speech. As I mentioned in my earlier post, when an incumbent running for reelection gives a campaign speech, he is not acting on behalf of the government. Likewise, even Supreme Court justices who believe that the government may not endorse religion think that its fine for government officials to express religious views in their speeches here, for instance, is the view of Justices John Paul Stevens and Ruth Bader Ginsburg in Van Orden v. Perry:

Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.

When I put up posts, or moderate comments, Im not acting on behalf of the state of California (even though blogging is part of my job, for which I get some modest credit in my job evaluations, much as professors who write op-eds are given some credit for such service to the public); likewise for Trump. To be sure, my powers stemming from my government job are small, and Trumps powers are vast. But the principle strikes me as quite similar.

For whatever its worth, the only case that has closely dealt with this, Davison v. Plowman, took the view that a government official may be speaking as a citizen and not as the government, even when he is mak[ing] public statements though social media to constituents though I should acknowledge that this is just a federal trial court case and not a binding precedent.

2. Sean Spicers statement that @RealDonaldTrump tweets are official statements doesnt count for much here, I think I dont think that a press secretary can bind the president, the executive branch or the judiciary on a legal question such as this.

3. That courts have given the presidents tweets weight in determining his motivations is not, I think, relevant: Indeed, the U.S. Court of Appeals for the 4th Circuits decision, cited by the Knight Institute, cited a tweet from when Trump was a candidate that certainly couldnt have been government speech. The theory behind the 4th Circuits use of the tweet is that Trumps motivations were relevant to whether he had a discriminatory intent at the time he created the policy, and for that the 4th Circuit didnt care whether the tweet was an official statement or just his views in 2015 as a private citizen.

4. To the extent that the presidents aides regularly write tweets in his name (not certain, and the cited source is from the time when the president was just a candidate), the matter might be different, though that is not entirely clear.

* * *

While Im talking about this, let me briefly note one other post about this, from Noah Feldman (Bloomberg). Feldman focuses on the fact that Twitter is a privately owned platform and concludes that its highly likely that there is no state action when blocking the followers takes place on such a private platform.

I dont think thats quite the right inquiry, though: If, for instance, a government agency rents space in a privately owned building to hold a public meeting and then lets citizens speak during a public comment portion of the meeting, it has created a limited public forum in which it cant discriminate based on viewpoint.

The same is true if a government agency (and not just a single politician) runs a Facebook page and allows citizens to comment there that would indeed be a limited public forum, because its government-run even if it uses private property. (See the Davison cases cited in my original post.) Likewise with Twitter, the question is whether Trump is acting as Trump-the-man and not Trump-the-government-official in running the Twitter feed, not whether Twitter is a state actor.

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More on the First Amendment and @RealDonaldTrump - The ... - Washington Post