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Traditionally, I avoid using this column to discuss issues that directly relate to my role as an attorney, as I find such practice self-serving and of dubious value for you, dear reader.

Yet, for every rule there is an exception, and the issue soon to be debated in a New York City court has such profound implications for businesses throughout the state that it is worth the time to examine the matter.

Simply distilled, a state law applicable only to NYC currently makes it unlawful to advertise occupancy or use of dwelling units where that occupancy would violate the Multiple Dwelling Law. This improper gag law is so broadly written that it covers literally any form of communication. If a similar statute is adopted with state wide application it would threaten literally any company or individual that seeks to contract for goods or services, whether through traditional mediums or the Internet. This was a law the state legislature granted to the city with the power to enforce, so the potential for this legislation to spread like a toxic weed throughout New York is real (although how it was enacted may be fatally flawed).

Originally designed to constrain Airbnbs widely successful business model of allowing apartment owners and tenants to briefly rent out their dwellings, the city capitulated in enforcing the law against the multibillion dollar Airbnb corporation and even stipulated in Federal Court that City Hall will permanently refrain from taking any action to enforce it against Airbnb.

What New York City forgot is that, irrespective of whether you are up against Airbnb or the lonely apartment owner or tenant, you cant violate the First Amendment. By prohibiting rental advertisements, the city imposes a content-based speech restriction subject to what the law calls heightened judicial scrutiny. It attempts to create, in essence, a legal house of mirrors that the city hopes defendants wont possibly navigate in their attempt to defend themselves.

More threatening for the rest of us who arent looking to offer short term rentals, the city law chills protected commercial speech. The threat of fines and liability would likely impose a form of self-censorship in the marketplace as the interpretation of what is permitted and what is prohibited becomes vague, blurred and problematic. If I ran a magazine, newspaper, broadcast operation or advertising agency, I would be extremely concerned about this laws draconian reach.

The city law also violates the First Amendment and the Due Process Clause of the Fourteenth Amendment because it seeks to impose strict civil and criminal liability against alleged violators. Specifically, there is no requirement in the statute that an alleged violator know that an advertisement is unlawful. Fortunately, there is precedent here. The U.S. Supreme Court has rejected such efforts to impose strict liability for the dissemination of information, even where, unlike here, the content itself lacks First Amendment protection.

Of course, the City could simply go after those who actually rent units unlawfully, rather than those that merely advertise such rentals, but they seem to have decided there is far easier to pick up a lot of money by just spotting the ads than by actually knocking on the doors of alleged violators to see if a violation has in fact occurred. In fact, the city has recently allocated several million dollars to fund inspectors whose task is to identify and fine apartment owners and tenants who post illegal listings. It is a fair bet they expect to make back that investment quickly by tabulating illegal ads and then sending notices costing $1,000 per first violation, $5,000 per second violation and $7500 per third violation gotcha.

Prohibition taught America that flawed laws and ill-conceived enforcement breeds nothing but contempt for government, for trying to make criminals out of all of us. The City of New York, and by extension the New York State Legislature, would better serve the public if they would promptly review their illegal assault on freedom of commercial speech and strike this improper unconstitutional statute from the books before the courts do it for them.

Rosenberg, a graduate of St. Johns University Law School and resident of Old Westbury, is senior founding with Rosenberg, Calica & Birney LLP, a Garden City law firm.

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Rosenberg: Airbnb law amounts to a first Amendment violation - Long Island Business News (subscription)

After assembling, however, an irate motorist pulled up and yelled go home. Protesters responded cooly with Well pray for you! The motorist drove off only to return moments later yelling more abuses. To be heard over the insults, the protesters yelled back, Well pray for you! The exchange was brief and nonviolent. Nevertheless, two Bemidji Police vehicles soon arrived. One officer entered the bank. Another officer approached the protesters. The officer acknowledged their peaceful assembly and thanked them for exercising their First Amendment rights. After polite discussion, the officer shook hands with protesters. They even took a group photo! Hallelujah. Libertys light stills shines. But for how long?

The right to peaceful assembly is protected under the First Amendment. It is the cornerstone to a healthy democracy. Yet to date, 18 states have introduced legislation stiffening penalties for peaceful demonstrators. In Minnesota, HF 322 represents such a threat. Although the wording appears benign, its intent is perhaps less innocent. If demonstration activity is deemed unlawful, governmental units could sue individuals to recover public safety response costs. Minnesota Statute 609.705 defines unlawful as disturbing or threatening the public peace. Who decides an assembly is disturbing the peace? Will HF 322 dissuade law-abiding citizens from public demonstration? Yes, probably. Is that the true intent of the bill? Probably, yes.

If protesting raises awareness, perchance increasing others willingness to demonstrate, then unprincipled politicians may seek to deter this right. James Madison, co-author of the U.S. Constitution and Bill of Rights, recognized this threat. I share his words, ...there are more instances of abridgement of freedom of the people by gradual and silent encroachment (by those in power) than by violent and sudden usurpations. HF 322 is such an encroachment representing the gradual effort to criminalize protesters.

This is a defining chapter in American democracy. It is my hope, despite our partisan differences, we fight to maintain this fundamental freedom. Whether you are a water protector or a pro-lifer, this bill should concern you and motivate us to collectively defend our most rudimentary rights.

Susan Kedzie

On behalf of Indivisible Bemidji, a local effort to raise awareness on social and environmental issues.

Original post:
LETTER TO THE EDITOR: We must defend our First Amendment rights - Bemidji Pioneer

Sometimes First Amendment speech can actually save First Amendment speech, and that's a very good thing. Due to widespread opposition, Arizona's Republican House speaker decided to kill a bill that would have made it a criminal offenseto plan a protest that led to rioting. The AP writes:

The measure passed last week by the Senate drew nationwide attention, particularly from civil libertarians, because it classified violent protest as an organized crime and said protesters who didn't initially intend to riot could still face criminal charges. That attention led Speaker J.D. Mesnard to decide Monday to kill it for the session.

Mesnard told The Associated Press that people all across the country now believe that the Arizona Legislature is trying to enact a law that will suppress their First Amendment right to assemble.

"It's gotten a lot of attention, and frankly whether it's fair or unfair, whether its accurate or inaccurate, at this point doesn't matter," he told the AP. "That's certainly not what the Legislature wants to be about I know that's not what the sponsor wanted in the first place. The best way to send a very clear signal that we're not doing it is to not move the bill."

Chalk one up for the First Amendment. Weneed it now more than ever.

See original here:
Arizona GOP leader kills bill that trampled First Amendment speech after widespread outcry - Daily Kos

President Trumps attacks on the fake news media the enem[ies] of the people, including the New York Times, CNN and NBC News would be hilarious, coming from a guy who routinely makes up facts (on everything from the murder rateto the number of people casting ballots illegally (and who they voted for!) in the presidential election to the size of the trade deficit to the number of people attending his inauguration to . . . ) and whose election, we now know, was supported by a large number of disinformation websites operated and/or funded by a hostile foreign government, were it not so disturbing.

It made me wonder: Does last weeks Gaggle Order the decision to ban the New York Times, CNN, Politico, Buzz Feed, and the Los Angeles Times reporters from Sean Spicerspress gaggle violate the First Amendment?

Turns out thats a close question. It certainly looks, at first glance, like a prohibited content-based (or possibly even viewpoint-based) discrimination limiting the affected outletsability to receive information, which would subject it to the highest form of First Amendment scrutiny and require some compelling justification to be constitutional. On the other hand, surely the First Amendment doesnt prevent a president (or his press secretary) from, say, granting an exclusive interview (or providing a leak) to one (favored) reporter or paper or TV network and not another.

Theres actually an old D.C. Circuit case that is rather closely on point: Sherrill v. Knight (569 F.2d 124 (1977), available here). Sherrill, the Washington correspondent for the Nation a publication with well-known left-wing proclivities applied for and was denied a White House press pass (during LBJs presidency). The denial, however, was apparently due not to any content- or viewpoint-based animus towards Sherrill or to the Nation, but resulted solely from the determination of the Secret Service, after investigating Mr. Sherrill, that he not be issued the pass although the Secret Service refused to reveal to Sherrill the information it had on which the denial was based.

The court concluded that while it would not order the White House to issue the pass, it would order the White House to provide Sherrill with notice, opportunity to rebut, and a written decision regarding his application.

The court held (and the government itself conceded) that the denial of a White House press pass potentially infringes upon first amendment guarantees. . . . [and] itis violative of the first amendment if it is based upon the content of the journalists speech or otherwise discriminates against a class of protected speech. . . . Arbitrary or content-based criteria for press pass issuance are prohibited under the first amendment.

The court rejected the governments argument that because the public has no special right of access to the White House, and because the right of access due the press generally is no greater than that due the general public, denial of a White House press pass is violative of the first amendment only if it is based upon the content of the journalists speech or otherwise discriminates against a class of protected speech.

[W]e are presented here with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide Washington-based journalists, whereas most of the White House itself, and press facilities in particular, have not been made available to the general public. White House press facilities having been made publicly available as a source of information for newsmen, the protection afforded news-gathering under the first amendment guarantee of freedom of the press, see Branzburg v. Hayes, 408 U.S. 665, 681, 707 (1972); Pell v. Procunier, 417 U.S. 817, 829-35 (1974), requires that this access not be denied arbitrarily or for less than compelling reasons. See Southeastern Promotions v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Lovell v. Griffin, 303 U.S. 444 (1938).

Given the important first amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists, the court held that such refusal must be based on a compelling governmental interest.

Clearly, protection of the president is a compelling, even an overwhelming, interest. The court had no basis for rejecting the explicit finding of the District Court that . . .denial of a press pass to [Sherrill] proceeded solely from concern for the physical security of the President, and thus the court was unwilling to order the White House to issue Sherrill a pass. It did, however, order the White House to provide notice [to Sherrill] of the factual bases for denial, an opportunity for him to respond to these, and a final written statement of the reasons for denial, which it called a minimum prerequisite for ensuring that the denial is indeed in furtherance of Presidential protection, rather than based on arbitrary or less than compelling reasons.

So if the White House had revoked a New YorkTimes reporters press pass, or denied access to the White House press room, there would be strong grounds for a claim of unconstitutional executive action. But at the same time, the First Amendment doesnt prevent a president from, say, granting an exclusive interview to one (favored) reporter or TV network and not another; as the court put it, it would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all.

So back to Spicer. The question here seems to turn on what, exactly, is this press gaggle? Is it more closely analogous to a press briefing, ostensibly open to any and all bona fide reporters? Or is it more like an interview, in connection with which the president (or his press secretary) has considerable discretion to discriminate between those he does or doesnt invite?

I cant say for certain; I had never heard of these press gaggles before, and I dont have a lot of information about how they operate, though it does sound like its closer to the latter than to the former.

And while were on the subject, what is particularly galling to me, and to anyone who calls him/herself a Jeffersonian as I do, is the way that Trump has enlisted Jeffersons support in his attacks on the press. For instance, at aFlorida rallylast week, he said:

They [the press] have their own agenda and their agenda is not your agenda. In fact, Thomas Jefferson said, nothing can be believed which is seen in a newspaper. Truth itself, he said, becomes suspicious by being put into that polluted vehicle, that was June 14, my birthday, 1807. But despite all their lies, misrepresentations, and false stories, they could not defeat us in the primaries, and they could not defeat us in the general election, and we will continue to expose them for what they are, and most importantly, we will continue to win, win, win.

It is certainly the case that Jefferson had a very rocky relationship with the press, and said some very uncomplimentary things (as in the 1807 letter to John Norvellfrom which Trump was quoting) about them, and about what he called elsewhere the putrid state into which our newspapers have passed and the malignity, the vulgarity, and mendacious spirit of those who write for them. . . . These ordures are rapidly depraving the public taste and lessening its relish for sound food.

But Jefferson unlike some presidents I am aware of understood very well the difference between his private disputes with the press and his personal views about press activity expressed inhis private correspondence,on the one hand, and his statements and actions taken in his public capacity and his public writings on the other, in which he was quite possibly the strongest supporter of a free and unfettered press that this country has ever had.

He rode into office in 1800, of course, on the wave of public indignation about the Adams administrations Sedition Act, which made it a federal crime punishable by up to two years in prison to criticize the government to write, print, utter, or publish, any malicious writings against the government of the United States, or either House of Congress, or the President, or anything that would bring them into disrepute.

Heres the text of the Sedition Act, which is worth reading if youve not read it before:

And be it further enacted, That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

Scores of newspaper editors had been tossed into jail, and it was Jefferson, along with James Madison, who led the fight to declare theact unconstitutional.***

*** The Virginia Resolution, passed by the state assembly (and co-authored by Jefferson and Madison) declared that the Sedition Act (along with its sister statute, the Alien Act) was unconstitutional:

It exercises a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.

[The Virginia Constitution] expressly declares that among other essential rights, the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States, it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn to the most palpable violation of one of the Rights declared and secured in the [U.S.] constitution, and to the establishment of a precedent which may be fatal to the others.

[T]he General Assembly doth solemenly declare that the acts aforesaid are unconstitutional

A wonderful anecdote possibly anecdotal from Jeffersons presidential years captures his attitude well.

In 1804, the celebrated traveller, Baron Humboldt, called on the President one day, and was received into his office. On taking up one of the public journals which lay upon the table, he was shocked to find its columns teeming with the most wanton abuse and licentious calumnies of the President. He threw it down with indignation, exclaiming, Why do you not have the fellow hung who dares to write these abominable lies?

The President smiled at the warmth of the Baron, and replied What! hang the guardians of the public morals? No sir, rather would I protect the spirit of freedom which dictates even that degree of abuse. Put that paper into your pocket, my good friend, carry it with you to Europe, and when you hear any one doubt the reality of American freedom, show them that paper, and tell them where you found it.Sir, the country where public men are amenable to public opinion; where not only their official measures, but their private morals, are open to the scrutiny and animadversion of every citizen, is more secure from despotism and corruption, than it could be rendered by the wisest code of laws, or best formed constitution. Party spirit may sometimes blacken, and its erroneous opinions may sometimes injure; but, in general, it will prove the best guardian of a pure and wise administration; it will detect and expose vice and corruption, check the encroachments of power, and resist oppression; sir, it is an abler protector of the peoples rights, than arms or laws.

But is it not shocking that virtuous characters should be defamed? replied the Baron. Let their actions refute such libels, continued the President; believe me, virtue is not long darkened by the clouds of calumny, and the temporary pain which it causes is infinitely overweighed by the safety it insures against degeneracy in the principles and conduct of public functionaries. When a man assumes a public trust, he should consider himself as public property, and justly liable to the inspection and vigilance of public opinion; and the more sensibly he is made to feel his dependence, the less danger will there be of his abuse of power, which is that rock on which good governments, and the peoples rights, have been so often wrecked.

[from Sketches of the Life, Writings, and Opinions of Thomas Jefferson (1832) by B. L. Rayner]

Jefferson truly believed and acted always in accordance with the belief that free speech and a free press were the two indispensable conditions for maintaining our freedom in the face of abusive governmental power.

Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it. . . .Where the press is free and every man able to read, all is safe.To preserve the freedom of the human mind and freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, and speak as we think, the condition of man will proceed in improvement.

No experiment can be more interesting than that we are now trying, and which we trust will end in establishing that man may be governed by reason and truth. Our first object should therefore be to leave open to him all the avenues to truth. The most effectual agent hitherto found is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions.

An executive strictly limited, the right of war vested in the legislative body, a rigid economy of the public contributions, and absolute interdiction of all useless expences, will go far towards keeping the government honest and unoppressive. But the only security of all is in a free press.The force of public opinion cannot be resisted, when permitted freely to be expressed. the agitation it produces must be submitted to, for it is necessary to keep the waters pure.

He could not have been clearer: a rambunctious and occasionally scurrilous and abusive press and if you think the press is a problem today on these grounds, you shouldread the papers from 1802 or thereabouts is the price we pay to maintain and safeguard all of our other rights. It is so difficult to draw a clear line of separation between the abuse and the wholesome use of the press, that as yet we have found it better to trust the public judgment, rather than the magistrate, with the discrimination between truth and falsehood.Considering the great importance to the public liberty of the freedom of the press, and the difficulty of submitting it to very precise rules, the laws have thought it less mischievous to give greater scope to its freedom than to the restraint of it.

So if Trump is channeling any historical figure in calling out the press as the enemies of the people, it is Joseph Stalin, or possibly Robespierre, not Thomas Jefferson.

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Trump, the press, the First Amendment and Thomas Jefferson - Washington Post

The Goodwins

This weekend, Forbes carried an excellent story about PLFs fight on behalf of Edward and Delanie Goodwin. In July, PLF attorneys filed a First Amendment challenge to protect the Goodwins right to speak on their own private property. Walton County banned signs on privately owned beaches last year, hoping to allow the public to trespass on private beaches without having to pay for the use. County officials threatened the Goodwins with large fines for keeping two private property signs and one small sign saying If Walton County Wants My Property, It Must Pay For It U.S. Constitution.

In September, the County agreed to temporarily stop enforcing the sign ban. But then in October, it passed an ordinance declaring that the public has a right of custom to use private beaches across the entire county. PLF responded by challenging the Countys blatant land grab as a violation of the U.S. Constitution.

Today, on National Review, George Leef shares more about the Goodwins case, stating,

I read about lots of cases of governmental villainy, but this one is among the worst.

National Reviews Roger Clegg also gave PLF a special shout-out for representing the Goodwins for free (as we do for all of our clients, thanks to our donors generosity). He said,

The generosity and inclusive spirit of PLF are underscored by the fact that, even though it is named after that West Coast ocean, it is happy to litigate on behalf of the owners of beachfront property in Northwest Florida.

Clegg is right. We have cases from coast to coast, with offices in Palm Beach Gardens, Florida; Arlington, Virginia; Bellevue, Washington; Honolulu, Hawaii; and Sacramento, California. We have cases pending in many more states, because government poses threats to liberty across the nation. As Leef wrote this weekend,

At all levels, government poses constant threats to our rights and only through eternal vigilance, as Thomas Jefferson observed, can we protect them.

Read the rest of Leefs excellent Forbes article about the Goodwin casehere.

Read the original post:
Goodwins' fight against land grab and First Amendment violations gaining national attention - Pacific Legal Foundation (PLF) (press release) (blog)