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Trump's Twitter Blocking May Violate First Amendment - WIRED
Of all the incredible statements issuing from the fantasy factory that is the imagination of Donald Trump, the one he recently made in a speech to graduates of the Coast Guard academy, that no politician in history and I say this with great surety has been treated worse or so unfairly sets an unenviable record for brazen ignorance plus a toxic mix of self-aggrandizement and self-pity. In his eyes, the most villainous persecutors are the mainstream fake news organizations that dare to oppose his actions and expose his lies.
So, having already banned nosy reporters from news corporations that he doesnt like, branded their employers as enemies of the nation and expressed a wish to departed FBI Director James Comey that those in the White House who leak his secrets should be jailed, why should there be any doubt that he would, if he could, clap behind bars reporters whom, in his own cockeyed vision, he saw as hostile? His fingers itch to sign an order or even better a law that would give him that power. Could he possibly extract such legislation from Congress?
Such a bill might accuse the press of seditious libel, meaning the circulation of an opinion tending to induce a belief that an action of the government was hostile to the liberties and happiness of the people. It also could be prohibited to defame the president by declarations directly or indirectly to criminate his motives in conducting official business.
With a net that wide, practically anything that carried even the slightest whiff of criticism could incur a penalty of as much as five years in jail and a fine of $5,000. Just for good measure, couple it with an Act Concerning Aliens, giving the president the right to expel any foreign-born resident not yet naturalized whom he considers dangerous to the peace and safety of the United States without a charge or a hearing.
How Trump would relish that kind of imaginary power over his enemies!
I didnt make up those words. They are part of actual laws the Alien and Sedition Acts, passed in the summer of 1798 and signed by John Adams, our second president and titular leader of the conservative Federalist Party. Men were actually tried, imprisoned and fined for such sedition. If anyone believes that under the First Amendment gagging the media cant happen here, the answer is that it already has.
How did it happen? Just as it could happen again today in the midst of a national emergency. In Adams day, it was a war scare with France that produced a flurry of stand behind the president resolutions, a hugely expanded military budget (including the beginnings of the US Navy), demonstrations of approval in front of Adams residence and a conviction among the Federalists that members of Congress who talked of peace namely the Republicans, the pro-French opposition party who at that time were the more liberal of the two parties, [held] their countrys honor and safety too cheap.
In other words, just the kind of emergency that could be produced at any time in our present climate by a terrorist attack here at home genuine, exaggerated or contrived and pounced upon by the man in the White House.
Do I exaggerate? Read the chilling report of the April 30 interview between Jon Karl of ABC News and Trump chief of staff Reince Priebus, who said the president might change libel laws so he could sue publishers. When Karl suggested that this might require amending the Constitution, Priebus replied, I think its something that weve looked at, and how that gets executed or whether that goes anywhere is a different story.
This is reality. A lying president aspiring to become a tinpot dictator is making his move. Its time to be afraid, but not too afraid to be prepared.
Lets briefly flash back to 1798. In the bitter contest between Federalists and Republicans, their weapons were the rambunctious, robust and nose-thumbing newspapers of the time, run by owner-editors and publishers who simply called themselves printers. They werent above dirtying their own hands with smears of ink, nor was there any tradition of objectivity. A British traveler of a slightly later time wrote that defamation exists all over the world, but it is incredible to what extent this vice is carried in America.
Nobody escaped calumny, not even the esteemed father of his country. Benjamin Franklin Bache, Republican editor of the Philadelphia Aurora, commented as George Washington departed office that his administration had been tainted with dishonor, injustice, treachery, meanness and perfidy . . . if ever a nation was debauched by a man, the American nation has been debauched by WASHINGTON.
Bache also had had harsh words for old, bald, blind, querulous, toothless, crippled John Adams, sounding very much like a pre-dawn Trump tweet aimed at some critic of His Mightiness. You might not find that kind of personal invective now in The New York Times or The Washington Post, but its familiar on right-wing talk radio and would sound at home coming from the mouths of Rush Limbaugh, Sean Hannity or Ann Coulter. The mode of dissemination changes; the ugliness at the core is unchanged.
Stung and furious, Adams and his Federalist supporters in Congress pushed the Sedition Act through Congress, though by a narrow majority. But could it survive a legal challenge from the Republican minority under the First Amendments guarantee of press freedom? The Federalists answered with a legal interpretation that the guarantee only covered prior restraint, which meant that a license from a government censor was required before publication of any opinion. Once it actually emerged in print, however, it had to take its chances with libel and defamation suits, even by public officials. Today,prior restraint is judicially dead, but the question of who is a public official and can be criticized without fear of retaliation in the courts continues to produce litigation.
But in 1787 argument made little difference. With the trumpets and drums of war blaring and thundering, the Constitution, as usually happens in such times, was little more than a paper barrier. Some provisions were added that would help the defense in a prosecution under its provisions. Moreover, the act was ticketed to expire automatically on March 3, 1801, the day before a new president and Congress would take office and either renew the law or leave it in its grave which is precisely what happened when Thomas Jefferson and the Republicans eventually won the 1800 election.
Nevertheless, during its slightly more than two years in force that produced only a handful of indictments, the Sedition Act did some meaningful damage. It produced what Jefferson called a reign of witches harmful enough to prove it was a travesty of justice, but not enough to become a full-blown reign of terror like the disappearances and executions of modern tyrannies.
The act never succeeded in its purpose of muzzling all criticism of the government, and in fact worked to the contrary. The toughest sentence 18 months in jail and a fine of $450 a huge sum in those days when whole families never saw as much as $100 in cash was imposed on a Massachusetts eccentric who put up a Liberty Pole in Dedham denouncing the acts and cheering for Jefferson and the Republicans. Other convictions for equally innocuous crimes defined by zealous prosecutors as sedition inflicted undeserved punishment by any standard of fairness. But two were especially consequential thanks to the backlash they produced.
One involved Matthew Lyon, a hot-tempered Vermont congressman, who ran a newspaper in which he accused Adams of a continual grasp for power and a thirst for ridiculous pomp that should have put him in a madhouse. For that he got a $1,000 fine and four months of jail time in an unheated felons cell in midwinter. But numerous Republican admirers raised the money to pay his fine. Asenator from Virginia rode north to personally deliver saddlebags full of collected cash. Lyon even ran for re-election from jail in December and swamped his opponent by 2,000 votes. His return to his seat in the House was celebrated joyfully by Republican crowds.
Jedidiah Peck from upstate New York was also indicted for his heinous offense of circulating a petition for the repeal of both the Alien and Sedition Acts. At each stop in his five-day trip to New York City for trial, the sight of him in manacles, watched over by a federal marshal, provoked anti-Federalist demonstrations. His case was dropped in 1800, and he was also easily re-elected to his seat in the New York assembly.
In fact, the entire Republican triumph in that years election was in good part a backlash to the censorship power grab of the Federalists. Literate voters of 1800, kept informed by a vigorous press, were not going to put padlocks on their tongues or take Federalist overreach lying down. Maybe it was from ingrained love of liberty or plain orneriness, or maybe because they were tougher to distract than we their heirs, beset by a constant barrage of entertainment, advertisements and other forms of trivial amusements.
Because that stream of noise is constant and virtually unavoidable by anyone not living in a cave, we are vulnerable to the tactic of the unapologetic Big Lie. If Trump keeps repeating fake news over and over at every exposure of some misdemeanor, eventually the number of believers in that falsehood will swell.
Genuine trouble is at our doorstep. If that statement from Reince Priebus is taken at face value, our bully-in-chief is looking for nothing less than control of the court of public opinion through management of the media by criminalizing criticism all behind a manufactured faade of governing in the name of the people.
With the example of 1798 before us, we need to resolve that any such effort can and must be met with the same kind of opposition mounted by that first generation of Americans living under the Constitution. If we want to be worthy of them, we need to use all our strength and resolution in deploying tactics of resistance. We need to fill the streets, overwhelm our lawmakers with calls and letters, reward them with our votes when they check the arrogance of power and strengthen their backbones when they waver. Any of us who gets a chance to speak at public gatherings and ceremonies should grab it to remind the audience that without freedom of speech, assembly and protest there is no real freedom. If the First Amendment vanishes, the rest of the Bill of Rights goes with it. And were dangerously close.
Read more here:
Red alert: The First Amendment is in danger - Salon
The College Fix | DeVos Appoints First Amendment Advocate to Key Position Inside Higher Ed Education Secretary Betsy DeVos has appointed Adam Kissel, formerly of the Koch Foundation and the Foundation for Individual Rights in Education, deputy assistant secretary for higher education programs, the department confirmed Monday. Politico first ... First Amendment crusader chosen for leading role in Trump's Department of Education The Condition of Education - Postsecondary Education - Programs, Courses, and Completions - Postsecondary ... The Condition of Education - Elementary and Secondary Education - Student Effort, Persistence and Progress - Public ... |
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DeVos Appoints First Amendment Advocate to Key Position - Inside Higher Ed
A closer look at the case involving Dakota Dunes-based BPI and ABC News.
FILE - This March 29, 2012, file photo, shows the beef product that critics call "pink slime" during a plant tour of Beef Products Inc. in South Sioux City, Neb. An attorney for BPI on Tuesday, April 9, 2013, praised an Iowa judge's ruling that blocked the release of documents on food safety testing conducted for the Sioux Falls, S.D.-based company. Judge Dale Ruigh ruled last month that releasing the information would cause "irreparable harm" to BPI by revealing information about proprietary food-processing techniques.(Photo: Nati Harnik, AP)
Its a sure bet that the summer plans for 16 Union County, South Dakota residents look a lot different today than they did a week ago.
The 11 women and five men constitute the jury in the defamation lawsuit brought by Dakota Dunes-based Beef Products Inc. against ABC and Jim Avila, a senior correspondent for the broadcaster. BPIs $1.9 billion lawsuit is scheduled to last eight weeks, potentially concluding in late July.
The legal case:
BPI is bringing suit under a 1994 state law that makes it illegal to knowingly disparage agriculture products with falsehoods. The law allows for treble damages, which in BPIs case would amount to $5.7 billion.
South Dakota is one of 13 states with laws that protect agriculture from disparagement. State legislatures began passing the laws after a 1993 decision in Washington where a court rejected efforts by apple farmers to punish 60 Minutes for a story that questioned the use of pesticides on apples, said Dave Heller, the deputy director of the Medial Law Resource Center.
BPI filed suit in September 2012 following a series of negative reports aired by ABC about BPIs signature product, Lean Finely Textured Beef. Following the reports, many of BPIs major customers stopped buying LFTB, which was used as a lean beef filler in hamburger. The fallout from those reports forced the company to close three of four plants and eliminate half its work force.
More: Judge to lawyers in BPI case: Act like whiskey drinkers
Roy Gutterman, the director of the Tully Center for Free Speech at Syracuse University, said the laws were intended to intimidate and chill news coverage. He noted that the term pink slime, which was used in ABCs broadcast to describe LFTB, was consistent with language used in the industry.
The pink slime case is an affront to the First Amendment, he said in an email. The damages being sought are outrageous.
Patrick Garry, a law professor at the University of South Dakota School of Law, said that BPI has a high bar because of First Amendment speech protections. BPI must prove that ABC acted with malice that it knowingly reported falsehoods with a desire to hurt BPI.
While the media has long-held legal protections, Garry wonders if this is the right case at the right time that could puncture some of those protections. BPI could have access to internal ABC documents showing the networks reports were biased, opening the door to a malice claim.
Steve Kay, who publishes Cattle Buyers Weekly, said it appeared to him that ABC set out to disparage a product that had been used around the world for years.
Im trying to be as neutral as possible, but by most standards of responsible journalism it appeared to be distorted and biased and extremely unreasonable, Kay said.
Eldon Roth, BPIs CEO, founded the company in 1981. He pioneered a method, Kay said, of extracting lean beef from fatty portions of cattle that had previously been rendered. BPIs method relied on centrifuges to extract the lean beef, which could then be added to hamburger, making a leaner product.
Roth further revolutionized the product following an E. coli outbreak that sickened hundreds in 1993 who ate hamburgers sold by Jack in the Box. He developed a process in which LFTB was treated with ammonium hydroxide to kill E. coli and other microbes.
The outcry is ironic, Kay said, because it was arguably the safest product on the market.
ABCs whole approach to BPI didnt make any sense to me, Kay said. It seemed to ignore the whole history of the product.
The damages:
ABC wasnt the first media outlet to report on the process of making LFTB. The New York Times discovered an email in which a U.S. Department of Agriculture microbiologist described the product as pink slime. The paper referred to the email in a 2009 investigation, which uncovered reports of salmonella and E. coli in BPI products used in school lunches.
While no outbreaks were tied to BPI, the report by the Times included skepticism about the products safety among school lunch officials. In 2011, McDonalds, Burger King and Taco Bell abandoned LFTB.
Then came ABCs series of reports in March of 2012. Although the network broke little ground in terms of what had already been reported by the likes of The New York Times and others, its reporting set off a wave of negative reaction about LFTB. Grocers abandoned the product and USDA said school lunch programs didnt have to use beef that included LFTB.
BPIs revenues plummeted from $1.1 billion in 2011 to $400 million last year, Kay said. ABCs reports had an immediate and lasting impact on BPIs business.
No way has their business even more than partially recovered, Kay said.
Consumer transparency:
Much of the outcry about LFTB and a focus of ABCs reporting was on the use of ammonia to kill microbes. Although ammonia is used in other processed foods and was OKd by USDA for use at certain levels for LFTB, food advocates were outraged that it wasnt on the product label. Nor were consumers alerted to the fact that LFTB portions come from parts of the animal that had previously been rendered or used outside of the food chain.
Michele Simon, a public health attorney and author who wrote about the topic, and who was deposed in the case, said ABCs reports exposed the vast underbelly of the industrial meat system.
I dont think anyone was claiming it was unsafe, just disgusting, Simon said.
Kay, however, says it would be impractical to describe the processes of making hamburger with LFTB on product labeling. BPI, he added, has always been open about its product and the processes it used.
But Simon says the company had no answer about why it wasnt being more transparent. And she said she doesnt know why anyone in the news industry would have it out for BPI.
Its a typical shooting-the-messenger act, she said.
The outcome?:
ABC tried but failed to move the case from state court to federal court. The loss meant that it will be forced to defend itself in BPIs backyard.
Its hard to predict what will happen in this trial, Heller said in an email. ABC is in the plaintiffs home turf at a time of unprecedented hostility toward the press as purveyors of fake news. On the other hand, you will have a jury of average Americans probably more concerned with what they put on the family dinner table than the public relations of a beef processor.
Juries, Garry said, are often sympathetic to people who make defamation claims and give generous awards. But often, those awards are reversed on appeal, and Garry said he expects this case to be appealed, especially if the verdict goes against ABC.
Besides the Washington apple case that spurred state disparagement laws, Heller noted that nearly 20 years ago, Oprah Winfrey won a case in Texas after cattle ranchers attempted to silence her concerns about beef safety.
If the past is any track record, courts and juries will not be quick to shut down legitimate public debate about what we eat, he said.
While its true that opinions about food can substantially impact the bottom line of a manufacturer, thats a product of the free exchange of ideas, Heller said. We dont need the government to put its thumb on the scale and chill debate about what we are eating and how its made.
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Billions of dollars, First Amendment protections, at stake in ABC lawsuit - Sioux Falls Argus Leader
President Trump at a news conference, at the White House in Washington, April 20, 2017. Memos kept by James Comey indicated that Trump asked the former FBI director to consider jailing journalists who published classified information. (Photo: Al Drago / The New York Times)
Of all the incredible statements issuing from the fantasy factory that is the imagination of Donald Trump, the one he recently made in a speech to graduates of the Coast Guard academy, that "no politician in history -- and I say this with great surety -- has been treated worse or so unfairly" sets an unenviable record for brazen ignorance plus a toxic mix of self-aggrandizement and self-pity. In his eyes, the most villainous persecutors are the mainstream "fake news" organizations that dare to oppose his actions and expose his lies.
So, having already banned nosy reporters from news corporations that he doesn't like, branded their employers as enemies of the nation and expressed a wish to departed FBI Director James Comey that those in the White House who leak his secrets should be jailed, why should there be any doubt that he would, if he could, clap behind bars reporters whom, in his own cockeyed vision, he saw as hostile? His fingers itch to sign an order or even better a law that would give him that power. Could he possibly extract such legislation from Congress?
Such a bill might accuse the press of "seditious libel," meaning the circulation of an opinion tending to induce a belief that an action of the government was hostile to the liberties and happiness of the people. It also could be prohibited to "defame the president by declarations directly or indirectly to 'criminate' his motives in conducting official business."
To see more stories like this, visit Moyers & Company at Truthout.
With a net that wide, practically anything that carried even the slightest whiff of criticism could incur a penalty of as much as five years in jail and a fine of $5,000. Just for good measure, couple it with an Act Concerning Aliens, giving the president the right to expel any foreign-born resident not yet naturalized whom he considers "dangerous to the peace and safety of the United States" without a charge or a hearing.
How Trump would relish that kind of imaginary power over his enemies!
I didn't make up those words. They are part of actual laws -- the Alien and Sedition Acts, passed in the summer of 1798 and signed by John Adams, our second president and titular leader of the conservative Federalist Party. Men were actually tried, imprisoned and fined for such "sedition." If anyone believes that under the First Amendment gagging the media can't happen here, the answer is that it already has.
How did it happen? Just as it could happen again today -- in the midst of a "national emergency." In Adams' day, it was a war scare with France that produced a flurry of "stand behind the president" resolutions, a hugely expanded military budget (including the beginnings of the US Navy), demonstrations of approval in front of Adams' residence and a conviction among the Federalists that members of Congress who talked of peace -- namely the "Republicans," the pro-French opposition party who at that time were the more liberal of the two parties, "[held] their country's honor and safety too cheap."
In other words, just the kind of "emergency" that could be produced at any time in our present climate by a terrorist attack here at home -- genuine, exaggerated or contrived -- and pounced upon by the man in the White House.
Do I exaggerate? Read the chilling report of the April 30 interview between Jon Karl of ABC News and Trump chief of staff Reince Priebus, who said the president might "change libel laws" so he could sue publishers. When Karl suggested that this might require amending the Constitution, Priebus replied, "I think it's something that we've looked at, and how that gets executed or whether that goes anywhere is a different story."
This is reality. A lying president aspiring to become a tinpot dictator is making his move. It's time to be afraid, but not too afraid to be prepared.
Let's briefly flash back to 1798. In the bitter contest between Federalists and Republicans, their weapons were the rambunctious, robust and nose-thumbing newspapers of the time, run by owner-editors and publishers who simply called themselves "printers." They weren't above dirtying their own hands with smears of ink, nor was there any tradition of "objectivity." A British traveler of a slightly later time wrote that "defamation exists all over the world, but it is incredible to what extent this vice is carried in America."
Nobody escaped calumny, not even the esteemed father of his country. Benjamin Franklin Bache, Republican editor of the Philadelphia Aurora, commented as George Washington departed office that his administration had been tainted with "dishonor, injustice, treachery, meanness and perfidy if ever a nation was debauched by a man, the American nation has been debauched by WASHINGTON."
Bache also had had harsh words for "old, bald, blind, querulous, toothless, crippled John Adams," sounding very much like a pre-dawn Trump tweet aimed at some critic of His Mightiness. You might not find that kind of personal invective now in The New York Times or The Washington Post, but it's familiar on right-wing talk radio and would sound at home coming from the mouths of Rush Limbaugh, Sean Hannity or Ann Coulter. The mode of dissemination changes; the ugliness at the core is unchanged.
Stung and furious, Adams and his Federalist supporters in Congress pushed the Sedition Act through Congress, though by a narrow majority. But could it survive a legal challenge from the Republican minority under the First Amendment's guarantee of press freedom? The Federalists answered with a legal interpretation that the guarantee only covered "prior restraint," which meant that a license from a government censor was required before publication of any opinion. Once it actually emerged in print, however, it had to take its chances with libel and defamation suits, even by public officials. Today,"prior restraint" is judicially dead, but the question of who is a public official and can be criticized without fear of retaliation in the courts continues to produce litigation.
But in 1787 argument made little difference. With the trumpets and drums of war blaring and thundering, the Constitution, as usually happens in such times, was little more than a paper barrier. Some provisions were added that would help the defense in a prosecution under its provisions. Moreover, the act was ticketed to expire automatically on March 3, 1801, the day before a new president and Congress would take office and either renew the law or leave it in its grave -- which is precisely what happened when Thomas Jefferson and the Republicans eventually won the 1800 election.
Nevertheless, during its slightly more than two years in force that produced only a handful of indictments, the Sedition Act did some meaningful damage. It produced what Jefferson called a reign of witches -- harmful enough to prove it was a travesty of justice, but not enough to become a full-blown reign of terror like the "disappearances" and executions of modern tyrannies.
The act never succeeded in its purpose of muzzling all criticism of the government, and in fact worked to the contrary. The toughest sentence -- 18 months in jail and a fine of $450 -- a huge sum in those days when whole families never saw as much as $100 in cash -- was imposed on a Massachusetts eccentric who put up a "Liberty Pole" in Dedham denouncing the acts and cheering for Jefferson and the Republicans. Other convictions for equally innocuous "crimes" defined by zealous prosecutors as sedition inflicted undeserved punishment by any standard of fairness. But two were especially consequential thanks to the backlash they produced.
One involved Matthew Lyon, a hot-tempered Vermont congressman, who ran a newspaper in which he accused Adams of a continual grasp for power and a thirst for ridiculous pomp that should have put him in a madhouse. For that he got a $1,000 fine and four months of jail time in an unheated felon's cell in midwinter. But numerous Republican admirers raised the money to pay his fine. Asenator from Virginia rode north to personally deliver saddlebags full of collected cash. Lyon even ran for re-election from jail in December and swamped his opponent by 2,000 votes. His return to his seat in the House was celebrated joyfully by Republican crowds.
Jedidiah Peck from upstate New York was also indicted for his heinous offense of circulating a petition for the repeal of both the Alien and Sedition Acts. At each stop in his five-day trip to New York City for trial, the sight of him in manacles, watched over by a federal marshal, provoked anti-Federalist demonstrations. His case was dropped in 1800, and he was also easily re-elected to his seat in the New York assembly.
In fact, the entire Republican triumph in that year's election was in good part a backlash to the censorship power grab of the Federalists. Literate voters of 1800, kept informed by a vigorous press, were not going to put padlocks on their tongues or take Federalist overreach lying down. Maybe it was from ingrained love of liberty or plain orneriness, or maybe because they were tougher to distract than we their heirs, beset by a constant barrage of entertainment, advertisements and other forms of trivial amusements.
Because that stream of noise is constant and virtually unavoidable by anyone not living in a cave, we are vulnerable to the tactic of the unapologetic Big Lie. If Trump keeps repeating "fake news" over and over at every exposure of some misdemeanor, eventually the number of believers in that falsehood will swell.
Genuine trouble is at our doorstep. If that statement from Reince Priebus is taken at face value, our bully-in-chief is looking for nothing less than control of the court of public opinion through management of the media by criminalizing criticism -- all behind a manufactured faade of governing in the name of the people.
With the example of 1798 before us, we need to resolve that any such effort can and must be met with the same kind of opposition mounted by that first generation of Americans living under the Constitution. If we want to be worthy of them, we need to use all our strength and resolution in deploying tactics of resistance. We need to fill the streets, overwhelm our lawmakers with calls and letters, reward them with our votes when they check the arrogance of power and strengthen their backbones when they waver. Any of us who gets a chance to speak at public gatherings and ceremonies should grab it to remind the audience that without freedom of speech, assembly and protest there is no real freedom. If the First Amendment vanishes, the rest of the Bill of Rights goes with it. And we're dangerously close.
See the original post:
Red Alert: The First Amendment Is in Danger - Truth-Out