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Well, she did not show up. I am talking about Ann Coulter, the svelte conservative firebrand who was invited to the University of California at Berkeley, to speak and inadvertently to show the assembled coeds how a stylish blonde dresses. But then she was disinvited. Hold on, she was, of a sudden, reinvited but only under certain university conditions. Confusion ensued. Then the speech was lost in the swelling controversy. According to Ann, I looked over my shoulder, and my allies had joined the other team. Her allies presumably were members of the Young Americas Foundation.

Honestly, I cannot imagine the stalwarts of YAF joining with the faculty of U.C. Berkeley in any joint endeavor, but maybe I am wrong. Life on campus has been changing for years. Always things get worse. Once a prof dressed in tweeds; now they dress like little boys.

One thing I know for a certitude neither Ann nor YAF should want anything to do with U.C. Berkeley. In fact, I cannot imagine any intelligent person wanting anything to do with most universities, much less wanting to lecture at one. Why would Ann Coulter want to speak there? Why would any intelligent person want to speak at almost any university in the country?

I have not spoken on a college campus in twenty years. Then the venue was Hillsdale College, a remarkable place, and my date at Hillsdale was the first time I had appeared on a college campus since since the early 1970s (when I spoke at what is called an Ivy League institution, and some fussy dean asked me before leaving campus to sign their guest book. Clandestinely I did. I wrote: Have a nice day, Richard Speck).

Aside from Hillsdale and one or two other colleges nationwide, why would any intelligent person bother? What kind of audience would I be speaking to? The intelligent, intellectually alive, free-thinking students generally agree with me and are in no need of seeing me talk. As for the protesters, the bed-wetters with their illiterate placards and their nonsensical tee shirts, their minds are too cluttered with politically correct gibberish to contemplate anything I might say. Better that they spend their time at the local Rape Awareness Seminar or a Take Back the Night workshop.

The decline began in the late 1960s. Before that college campuses were all pretty much dominated by liberals: Hubert Humphrey Democrats, Great Society enthusiasts, with a few socialists thrown in for a cosmopolitan whiff. Most of the liberals at least conveyed facts and respected those of their students who dissented from their liberal pieties. They believed in the existence of truths, their truths, but they were not so insecure in their truths as to be neurotic about them. Boy, are the profs neurotic today.

Things on campus began to change by the 1970s and 1980s. Then the students who were radicals in the 1960s began to become junior faculty, then senior faculty. Along with them came the feminists, the racialists, the lecturers on even more extreme brands of esotery. The result is that if there is an old-fashioned liberal on campus today that liberal is the campus conservative. The rest are radicals and dispensers of New Age Nonsense.

The climate on campus now is somewhat an admixture of Communist Cuba and kindergarten. One could sense it all coming by reading the radical thinkers whose books were espoused in the 1960s by the New Left students, soon to be junior faculty and now retiring senior faculty after utterly trivializing their institutions. Their sages were goofball Marxists who often ended badly, thinkers like Herbert Marcuse and Theodor Adorno. For Adorno one memorable goofball moment came a few months before he expired at age 65. One moment he was holding forth on dialectical thought before nearly a thousand students in some crummy auditorium. The next he was surrounded by bare breasted maidens showering him in tulips and trying to kiss him. The prof retreated from his dais, retired to his quarters, went into a deep depression. Within months he assumed room temperature.

This mixture of the infantile and the authoritarian is all over college campuses today. Just last month at ivy-covered Wellesley a bull appeared in the student newspaper explaining that hostility may be warranted against those who are given the resources to learn yet refuse to adapt their beliefs. That sounds like what the North Vietnamese called reeducation camp. Ann, give Wellesley a wide berth.

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Campus High Jinks and the First Amendment - American Spectator

Lincoln Caplan, Joel Simon, Nicholas Lemann, Michael Oreskes, and Emily Bell. Photo: Meritxell Roca.

The internet in its halcyon days was lauded as a open space that could promote free speech in the US and worldwide, but it is now a realm that has settled into domination by a few companies. As we enter an age in which the internet is fully integrated into our daily lives, the main channel by which we access information, a reconsideration of the values of the First Amendment is required.

This was the motivation for a symposium on May 1 at Columbia University called Disrupted: Speech and Democracy in the Digital Age. Attended by a mix of legal professionals, academics, and journalists, the message was clear: Legal thinking around the First Amendment must renew itself in the new era. The internet is deeply affecting the shape of public discourse. In turn, how can the values of freedom of expression, freedom of the press, and freedom of assembly shape and govern the digital space?

This was the first public event hosted by the Knight First Amendment Institute at Columbia University (the Tow Center for Digital Journalism was co-sponsor). The Institutewill surely be at the center of this debate for years to come. The First Amendment Institute, now up and running after its inception last year under founding director Jameel Jaffer, will be dedicated to research, education, and litigation pursuing freedom of speech.

Law, by nature, is always catching up to technology. Leslie Kendrick, professor of law at University of Virginia, made the distinction between east coast code and west coast codeeast coast code being the codified legal precepts, and west coast code being, well, all those lines written in computer language. East coast code, she said, is always behind west coast code; west coast code moves fast and is always inventing things the law cannot anticipate.

Legal efforts on behalf of the First Amendment have traditionally focused on the right to say thingsthe right to hand out pamphlets, as Tim Wu, professor of law at Columbia and contributing opinion writer for The New York Times, put it. But almost everyone on stage yesterday agreed that, with the internet, the right to say things is no longer under threat. Instead, there are a host of other threats enabled by the advent of the internet.

Now that anyone can publish freely online, one threat to free speech comes from the ability of companies or social media platforms to control who gets heard; how many readers newspapers reach; and which citizens have a voice in a cluttered online environment of bots and ads. Zeynep Tufekci, writer for the Times and professor of communications at University of North Carolina, wondered whether Twitter users leaving the platform because of harassment might be having their freedom of assembly violated. She also warned of new censorship techniques, in use now in China, which drown out anti-government speech rather than the traditional method of silencing. Teams of social media users linked to government agents pump out celebrity controversies, Tufekci said, at the same time other users are trying to raise the profile of the Tiananmen Square massacre.

Such censorship techniques take advantage of the fact that all of us have limited attention. And, as Wu has written extensively on, the entire internet is built so that our attention is the currency. Facebook, in particular, makes money off of being able to keep you on their platform, clicking. And theyve become immensely good at targeting content to you. The data they have on individuals is unprecedented: no longer demographic, but individual and granular. New litigation around the First Amendment must pay attention to this market.

Another threat to freedom of the press is the breakdown of economic models. As Nicholas Lemann, formerly dean of the Journalism School at Columbia, put it, the big story in journalism now is not Trump, but the massive loss of jobs suffered in the past few years. Michael Oreskes, senior vice president and editorial director of NPR (and a CJR board member), emphasized that the greatest loss has been in local papers: Many city halls around the country are no longer covered. While the internet has been very good in making information available globally, local news has suffered because it does not have this universal appeal.

Addressing such questionsthe economic downfall of journalism, the new attention market, a new type of censorshipwill require a more imaginative view of the (quite brief) First Amendment, said Jamal Greene, professor of law at Columbia. Consider, he mused, if we passed a law limiting the number of people you could follow on Twitter to 50. In one sense, such a law would in conflict with the First Amendmentbut in other ways, such a move might promote discussion and deliberation. How we will negotiate such cases will be the work of the coming generation.

The bottom line is that Twitter and Facebook are private companies that have become our primary sites for public discourse. The function of journalismand indeed, the function of democracydepends on upholding the First Amendment to preserve the public sphere.

Watch the full event stream here.

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Legal thinking around First Amendment must evolve in digital age - Columbia Journalism Review

This article first appeared on the Just Security site.

Theres been substantial discussion in the news over the past week about the specter of a criminal prosecution of Julian Assange arising from his role in facilitating various disclosures of classified national security information, and its potential implications for press freedom in the United States.

Much like the Q&A we did back in February about Michael Flynn and the Logan Act, we thought it would be helpful to flesh out why the Assange case could pose such a troubling precedent for the press, and what the major unanswered questions are.

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Ryan to Steve : Let me start with a softball question before getting to four tougher ones. Why should journalists, as well as others concerned about freedom of the press, care about whether the government decides to prosecute Julian Assange?

WikiLeaks founder Julian Assange looks out of the window of the Ecuadorian embassy in central London on February 5, 2016. Ryan Goodman and Steve Vladeck write that a successful Assange prosecution in the U.S. could pose a troubling precedent for the press. NIKLAS HALLE'N/AFP/Getty

Steve to Ryan : Theres a lot to say here. The problem arises from two related but distinct phenomena.

First, the statute getting the most press here is the Espionage Act ( the relevant provision of which is

793 (e)

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;

which could theoretically apply to any third party who willfully transmits information relating to the national defense, or even retains it without authorization.

Second, although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause.

So if theres a First Amendment defense to the unlawful disclosure of classified national security information, the test (if not its application) should be the same regardless of whether the disclosure is by someone we all agree is a reporter, someone whos actually a foreign agent, or none of the above.

The breadth and concomitant lack of nuance of 793(e), about which Ive written previously, may help to explain why the government has almost never tried to prosecute a third party under that provisionand has instead focused on prosecuting those directly responsible for the unauthorized disclosure of national security information ( e.g. , spies and leakers).

The only attempted prosecution of third parties under 793(e), the 2005 indictment of two AIPAC lobbyists for their role in facilitating the transmission of classified information to Israel, fell apartbut without setting a clear precedent about how the First Amendment would protect unauthorized disclosure of national security information (if at all).

Finally, and turning to the First Amendment question, the Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information.

Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.

To be sure, the Court has held that, in some circumstances, the First Amendment protects public disclosure of confidential information (and has applied whats known as Pickering balancing to assess when the public interest in disclosure outweighs the governments interest in preserving confidentiality), but even the Bartnicki decision in which the Court ruled that the First Amendment protects a radio stations broadcasting of an unlawfully recorded audio conversationturned to a large degree on the parties stipulation that the radio station itself had acquired the recording lawfully.

Because of the Espionage Act, theres no way for a third party lawfully to acquire classified national security information that they are unauthorized to possess.

So Im skeptical that Assange (or the New York Times , for that matter) would have a clear-cut First Amendment defense to the publication of classified information in anything but the most extreme case of public concern (and perhaps even then).

Thats not to say that there arent incredibly serious First Amendment concerns lurking in the background here; among other things, I have to think that the First Amendment might at least protect a right to publish information on unlawful government programs (which, by law, could not properly be kept secret in the first place), especially where the existence of the program is a matter of significant public concern.

Im just not that sanguine about the prospect of the Supreme Court recognizing a First Amendment right to publish national security secrets in anything but such a compelling case (and wonder, for example, if Snowdens disclosures, at least of the phone records program, would fit the bill).

Simply put, the principal historical constraint on prosecutions of the press for publishing national security secrets has been prosecutorial discretion, not constitutional law.

And so one does not need to have a particular view about Assange (or think that he is or is not a journalist) to have a view on the implications here; the key is if hes prosecuted as a third party under the Espionage Act, which, of itself, would set a dangerous precedent for press freedom.

Ryan to Steve : What if the governments case against Julian Assange is based primarily and lets say for the sake of analysis, exclusively on allegations that he was directly involved in procuring classified information?

For example, imagine if Assange specifically encouraged Chelsea Manning or others to disclose the information. In a Washington Post Op-ed, Jonathan Adler wrote likely many journalists who cover national security have encouraged their sources to obtain and leak secrets, too. Would they also be at risk?

But whats wrong with drawing that line, and telling journalists they can publish classified information that someone hands to them, but they must never be directly involved in encouraging someone with access to classified information to break the law in procuring it?

Steve to Ryan : This is a really important distinction, but the devil is in the details. If the governments claim against Assange is not about publication or retention of national security information, but instead looks more like a solicitation or conspiracy claim (or some other way in which Assange was directly involved in facilitating the original wrongful disclosureand can be charged under an accessory theory for the underlying leak), then that might provide a thin-enough reed on which to rest a prosecution without crossing the line discussed above.

But nuance really matters here; Hollywood depictions to the contrary notwithstanding, most leaks dont involve uncoordinated dead-drops of materials into a journalists mailbox, but are rather the result of careful relationship building and cultivation of sources.

That is to say, its not as obvious as it might seem at first blush that providing technical assistance to Manning is categorically different (in kind, if not degree) from the kind of newsgathering that produces front-page stories derived from national security leaks, for example.

Some readers might react to this as proof that both examples ought to be prosecuted; I dont mean to take a position on that here. My point is just that, unless Assange was even more involved in the underlying theft of materials than weve been led to believe, there are still serious line-drawing problems.

Ryan to Steve : What if the governments case against Julian Assange were based exclusively on materials he disclosed that can be shown to have no public interest whatsoever or any evidence of legal wrongdoing on the part of the government?

Imagine if Assange disclosed US troop locations in Afghanistan. In your view would Assanges action in that case be free speech protected under the First Amendment?

Do you think any of Wikileaks disclosures come close to that line?

Steve to Ryan : Per the above, Im not especially optimistic that, should it come to this point, courts would recognize a First Amendment defense in Assanges case.

But thats why this is potentially such a dangerous precedent: If Assange becomes the first successful prosecution of a third party under the Espionage Act, then that gives the government a whole lot of leverage it might previously have not thought it possessed to be much more aggressive in investigating the medias role in national security leaks.

Yes, its possible to imagine a case in which courts would recognize a First Amendment defense, but by that point the constitutional Rubicon would already have been crossed.

That is to say, the issue is not whether Assange violated the Espionage Act (my own view is that he did), or whether he should have a First Amendment defense. The issue is the precedent it sets for future investigationsand, as such, chillingof even the most responsible and important national security journalism.

Ryan to Steve : If the government in pursuing a case against Assange stipulated that it was only doing so because it could prove that Assange was motivated to harm the United States would that satisfy you?

Should that satisfy First Amendment critics of a Justice Department decision to prosecute Assange?

Steve to Ryan : Motive has never been a critical factor in Espionage Act cases, and for good reason. If the harm from unauthorized disclosure of national security information is the fact that the information is out there, whether the perpetrator has good or bad motives shouldnt affect whether the disclosure is or is not lawful.

Thats why Pickering balancing, insofar as it would apply here, looks instead to the extent to which the speech involves a matter of public concern. So even if the reason for the prosecution was because Assange, unlike, say, Times and Post reporters, was motivated to harm the United States, the law wouldnt careand the precedent would still be set.

Thats why, if youre asking what would satisfy me, the answer would be a theory of criminal liability that wouldnt draw a straight line to what we would all agree is professional journalism.

Ryan to Steve : Where do you draw the legal limit? There is widespread agreement that the Espionage Act is currently drafted in excessively broad terms. But if you were legal counsel to a congressional committee interested in redrafting the Espionage Act, what elements would you suggest could be left in place with low risk of raising a First Amendment problem?

Steve to Ryan : As it turns out, Ive testified (five different times) on this exact subject, including at two different hearings that were specific responses to Wikileaks.

The real problem from a First Amendment perspective is that the statute is old and ambiguousand not drafted with the kind of specificity that usually characterizes speech-restricting statutes that survive constitutional challenge.

Heres how I concluded my testimony at a March 2010 House Judiciary hearing on the Espionage Act and Wikileaks:

First, introduce a clear and precise specific intent requirement that constrains the scope of the Espionage Act to cases where the defendant specifically intends the disclosure to harm national security and/or to benefit a foreign power. . . .

Second, create a separate, lesser offense for unauthorized disclosures and retention of classified information and specifically provide either that such a prohibition does or does not cover the public redistribution of such information, including by the press.

If this Committee and body does decide to include press publication, my own view is that the First Amendment requires the availability of any number of affirmative defenses [including] that the disclosure was in good faith; that the information was improperly classified; that the information was already in the public domain; and/or that the public good resulting from the disclosure outweighs the potential harm to national security.

Third, and finally, include in both the Espionage Act and any new unauthorized disclosure statute an express exemption for any disclosure that is covered by an applicable Federal whistleblower statute.

Ryan Goodman is co-editor-in-chief of Just Security and the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16).

Steve Vladeck is co-editor-in-chief of Just Security and a professor of law at the University of Texas School of Law.

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Could Assange Claim a First Amendment Defense? - Newsweek - Newsweek

High school student support for the First Amendment is at its highest in 10 years, according to a Knight Foundation survey. (Chuck Dearden)

High school student support for the First Amendment is at its highest point in 10 years, according to a recently published Knight Foundationsurvey.

The Knight Foundations Future of the First Amendment Survey began in 2004 and sampled more than 300 high schools. Subsequent surveys were conducted in 2006, 2007, 2011, 2014 and 2016 from random samples of the same participating schools.

Ninety-one percent of high school students now agree people should be allowed to express unpopular opinions, compared to 83 percent in 2004, according to the survey results.

Im really glad that more people are understanding the importance of the First Amendment, said Robert Walz, a BYU journalism professor and former ABC4 News reporter. Thats kind of what I built my whole career on.

Walz said he sees the millennial generation exercising their First Amendment rights daily, as opposed to remembering his generation only thinking about those rights once a month or once a year.

The report reveals how student perspectives are changing in a new media environment and opens opportunities for educators, journalists and defenders of the First Amendment to anticipate and address the challenges that may affect our most fundamental rights, said Jennifer Preston, Vice President of journalism at the Knight Foundation, in a news release.

Mountain View High School government teacher Robert Stoddard said he teaches the First Amendment by focusing on the individual rights it protects and by using Supreme Court cases.

Stoddard said he thinks the rise of social media brought upmany questions regarding what can and cant be said or written.

I also think that because of this last election, young people more than ever are developing stronger opinions about government and its role, Stoddard said. People question more than ever what, exactly, should the government be doing.I think this is a great thing.

The survey found students have five times more trust than teachersin the media and stories individuals post on social media. Twenty-sixpercent of todays high school students say news posted by individuals is more trustworthy than stories from professional journalists, and 29 percent say they are equally trustworthy.

Millennials trust Twitter more than they do the newspaper, Walz said.

Walz said hes seen millennials grow up in a time when there is huge distrust of organizations such as business, government and religion.

I think the individual has become more trustworthy than the organizations and institutions, Walz said. So because of that, I see the millennial generation using the First Amendment more than they ever did before. Theyre speaking out on things because now they can.

Stoddard said he thinks high school students trust social media more because studentsmake up a large percentage of social media users.

Teachers are still somewhat trusting that journalists have some amount of training and journalistic integrity that will hold them accountable to finding and printing as unbiased of an account as possible, Stoddard said.

The survey found students who frequently consume news are more supportive of the First Amendment than students who do not consume news often.

Emery High School senior Ashton Dieli said he watches quite a bit of news in his government classes and on social media.

I think it is important that we continue to use our freedom of speech and assembly and all that, but with that, people need to also use their freedom of thought, Dieli said.

Dieli said he believes traditional news is biased most of the time, but still thinks its a better source than social media.

The survey showed 56 percent of students in 2016 disagree with the statement, The First Amendment goes too far in the rights it protects, compared to 37 percent in 2006.

Journalists in other countries do not have nearly as many rights as American journalists protected under the First Amendment, Walz said.

They sacrifice their lives to get that information, Walz said. Were lucky in the United States that as long as we dont libel somebody and its the truth, we can say whatever we want. Its pretty cool when you think about it.

McKenna Park is an aspiring journalist studying at Brigham Young University.

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High school student First Amendment support at all-time high - Universe.byu.edu

Last week, federal judge David Hale ruled that Trumps exhortation for the audience at a March 2016 rally in Louisville, Kentucky, to get em [three protesters] out of here could be incitement. That is unusual enough to make headlines, especially because the defendant is Donald Trump. But the real shocker is that last week, the ACLU publicly defended Trump. The ACLU has defended Trump. The ACLU. Donald Trump. Defended.

I am a professor of law at the University of Louisville. I studied constitutional law with Erwin Chemerinsky at the University of Southern California and I received a PhD in Law at Queen Mary University of London. I have previously written on comparative constitutional law, including freedom of expression. And, I have to say, Judge Hales opinion was almost shocking to me. Incitement always seemed to me, from my early days in law school, to be this almost impossible standard that has resulted in a remarkably unchanging doctrine. I havent heard of an incitement argument being accepted by a court in years, if not decades.

That all changed earlier this month. The incitement case against Trump, Nwanguma v. Trump, was filed after three protesterssaidthey werephysically assaulted at a Trump rally. The three protesters, who stated they were at the rally to protest peacefully, were allegedly shoved and punched by rally attendees. The entire exchange was captured on film and widely broadcast in the media. In their lawsuit, the three plaintiffs have alleged that the violence occurred as a result of Trumps command to his audience to get them out of the building. Their claim that Trump incited the crowd is part of their argument that Trumps speech should not be protected by the First Amendment, leaving him open to the rest of their legal claims. [Disclosure: The lawyer representing the plaintiffs in the case against Donald Trump and his supporters has written for Salon.]

What makes the Trump incitement case so unusual is that it concerns political speech, both from the alleged inciter and the victims of the incitement. Political speech, particularly speech at political rallies, is basically the sweet spot for First Amendment protection. You cant get much more in tune with what the Constitution was meant to protect, at least according to the Supreme Court.

So what happens when political speakers collide, literally? On one hand you have the protesters, silently holding signs that insulted or criticized Donald Trump. (Ms. Nwanguma held a poster of Mr. Trumps face transposed on the body of a pig.) This is clearly political, protected speech. On the other hand, you have Donald Trump, a fiery presidential candidate, telling adoring masses about his candidacy and how he wants to make the country better. Again, political speech.

Whom is the First Amendment supposed to protect?

According to Trumps lawyers, Trump did not commit incitement because forcefully ejecting the protesters was not an unlawful act. Why? Because the protesters were trespassing. By conflating property owners and property possessors, Trumps attorneys actually argue that people who come to a public rally can be subjected to violence if the people who are using the space at the time decide that they dont want them there. Somehow, it was the trespassers silently holding signs that were breaching the peace and not the people shoving and grabbing at them.

Another argument made by Trumps lawyers is that when he said get em out of here, he meant to do it nicely. Apparently, Trumps later statement dont hurt them proves his intent was for a calm, peaceful removal of the protesters. Again, this intent is belied by the video of the event as well as Trumps prior statements about protesters. As Judge Hale noted, Trumps dont hurt them was said much more meekly. Compared to his fiery and repeated prior orders to eject the protesters, this statement does nothing to show that Trump was not getting exactly what he wanted when the crowd forcibly ejected the protesters from the building.

Trumps attorneys have also attempted to minimize the impact of Trumps prior statements that advocated violence against protesters, arguing that the plaintiffs identified only three prior speeches that included advocacy of violence against protesters, and no violence occurred then so those speeches dont provide valuable context for the Louisville rally. However, three prior speeches where a presidential candidate specifically approved of violence against protesters who attended his rallies is actually a lot. Certainly a lot more than other presidential candidates, who generally dont advocate violence at all. It is disingenuous to ignore the build-up of highly publicized rhetoric or to act as though Trumps prior statements were not in his fans minds that day. Unsurprisingly, Judge Hale did not agree with any of these assertions.

No, it is the ACLU thathas jumped to Trumps defense after Judge Hale issued his decision. According to Lee Rowland, a staff attorney for the ACLU, although a close call, Trumps speech did not amount to incitement.

Rowland actually agrees that what Trumps supporters did was unlawful because the protesters were not entitled to protest at Trumps privately run rally. As Rowland notes, Trump had the right to tell them to leave. Unfortunately, thats not what Trump did. He didnt talk to the protesters; he spoke to the crowd and told them to eject the protesters. Second, Rowland argues that Trump disavowed violence simply by adding dont hurt them later, noting that Trump also told the crowd I cant say go get em or Ill get in trouble. Judge Hale found that to be evidence that Trump didnt really mean to call off the mob; he just didnt want to be blamed for his own actions. For some reason, the ACLU is a lot kinder to Trump than a federal judge.

The final piece of the ACLUs defense of Trump, and the one that gets deepest into First Amendment cases, is Rowlands argument that Trumps words were not likely to incite violence. To make this argument, Rowland brushes off the claims of one of the assailants who counter-sued Trump by arguing that he did take Trumps words as an order, which he obeyed.

In this Bizarro-World scenario, this bleeding-heart-liberal legal academic has to come out and say something I didnt think I would ever have to say: I think the ACLU is wrong. I think ACLU has misinterpreted the requirements for incitement.

The seminal incitement cases cited in the ACLU blog were decided in the 1960s and 1970s and involved civil rights issues or anti-war protests. Brandenburg v. Ohio involved a filmed speech of a Ku Klux Klan leader burning a cross and giving a speech that denigrated black people and stated that they might need to take revengeance against the government if it continued to suppress the Caucasian race. According to the Supreme Court in Brandenburg, that speech was not incitement because, in order to legally incite a crowd, you cant just be advocating for criminal activity, you have to be preparing a group for violent action and steeling it to such action.

The other cases cited by the ACLU in its defense of Trump largely say the same thing. Hess v. Indiana (an anti-war protestor who said Well take the fucking streets later) and NAACP v. Claiborne Hardware (civil rights icon Charles Evers, who threatened to break the damn neck of anyone who broke the boycott) both show that threats arent enough. It has to be aimed to produce a response, and an immediate one. Hesss speech wasnt incitement because there was no immediate call to action. Evers speech was also just a threat, and one contingent on someone acting a certain way in the future. Threats, no matter how graphic, do not constitute incitement.

Since then, incitement has been argued in a surprising variety of cases, and almost always unsuccessfully. For example, incitement claims have been unsuccessfully tried against violent video games, giving advice on how to be a successful gang member, and requesting (but not possessing) child pornography. It is not unexpected that these and Im being charitable here creative arguments for incitement did not persuade the courts to expand its reach. In those cases, there was no command to violence and the resulting harm (if any was found) was too temporally removed from the speech.

But there have been some recent cases where a court has allowed a claim of incitement to go forward, and those cases shed some light on what is happening here. A 2009 case, United States v. Stewart, found that a spiritual leaders publicized withdrawal of support for a cease-fire could be seen as a call to arms to his followers to commit violence, placing it in the realm of incitement.

Another 2009 case, United States v. Fulmer, found potential incitement where leaders of an animal rights group used their website and email to urge supporters to participate in [illegal] electronic civil disobedience at a specified time. The defendants were found to have engaged in incitement because they clearly had control over the timing of the illegal virtual sit-ins that clogged websites of targeted companies they stated when a virtual sit-in was to start and, when they announced it had been successful, the virtual sit-in stopped.

Both Stewart and Fulmer show how incitement can be found in modern scenarios, and Trumps speech fits right in. Indeed, Trumps order to get em out of here is a much more explicit call to arms than the statements made in Stewart. The immediacy of his order the implied get them out now makes the harm more imminent than in the case of Fulmer.

And the most damning piece of evidence against Trump, and the ACLUs defense of him, is that his other statements approving of violence against protesters clearly are not incitement. Just looking at two of the most offensive of Trumps statements made at prior rallies shows the difference the legally significant difference between what was said before and what was said in Louisville.

First, at a rally on Feb. 1, 2016, Trump told the crowd [i]f you see somebody getting ready to throw a tomato, knock the crap out of them . . . Just knock the hell out of them. I promise you, I will pay for the legal fees.

Like the speech made by Evers in the Claiborne Hardware case, Trumps words at the February rally were not orders or commands to an audience because they contained a contingency: Act violently only if something specific happens. The contingency is key because it removes the immediacy and the command aspects of the speech. Instead, the speech is just advocacy of potential future violence if certain conditions are met.

At his Feb. 23 rally, which was mere days before the Louisville rally, Trump told the crowd, [h]eres a guy, throwing punches, nasty as hell, screaming at everything else, when were talking. . . Id like to punch him in the face, I tell ya. This statement is even further from incitement. Its a statement of approval of violent action, but it isnt even suggesting that others engage in that behavior.

Thats what makes the Louisville rally so unique. Trump didnt say well get them out or if they dont leave, well take them out. There was no promise of future violence, no contingency upon which violence could occur. He didnt express a desire to inflict violence or say he hoped that someone would get them out. He told his audience to get em out. It was a call to act, to get the protesters out of the building. Immediately. According to the complaint, at the Louisville rally, Trump spoke, knowing that violence was likely to occur as a result of his words. And violence did occur.

Rowlands main point in her article is that we shouldnt allow our distaste of Trump to allow courts to shrink the protections of the First Amendment. To that argument, I would counter that we shouldnt allow our love of the First Amendment to blind us to the fact that a man commanded a room to use force against peaceful protesters. Donald Trumps words dont deserve First Amendment protection, even under the very stringent Brandenburg standard. What he did was precisely why the incitement doctrine was created to stop speech that leads directly to violence. This was not advocacy; it was a call to arms.

With all due respect to the ACLU, what Trump did was textbook incitement. The First Amendment should provide him no safe harbor.

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Not covered under the First Amendment: The ACLU is wrong about ... - Salon