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If no settlement can be reached in Dominion Voting Systems' $1.6 billion defamation lawsuit against Fox News, the ensuing trial will prove to be one of the most important in the history of First Amendment law. On Sunday, the start of the trial was delayed by 24 hours, and reports of a possible settlement spread.

Defamation cases are notoriously difficult to win against media outlets because the plaintiffs must prove both that a claim was false and that it was made with "actual malice" that is, either"with knowledge that it was false or with reckless disregard of whether it was false or not." In this case, a number of factors favor Dominion. First, because Fox News' claims that Dominion had rigged the 2020 election against then-President Donald Trump were false, as withthe other tenets of the Big Lie, Davis ruled that Dominion only needs to prove that Fox News acted with "actual malice." Second, there is a wealth of evidencethat the key figures at Fox News knew that their public accusations against Dominion were false, yet made them despite that knowledge to please their audience. Finally, Fox News has already been scolded by the judgefor withholding important information about the title of board member Rupert Murdoch.

It is easy, amidst the high drama of a landmark free speech case, to lose sight of how we got where we are. The First Amendment of the United States Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." So what does it mean to "abridg[e] the freedom of... the press"? How can courts and policymakers remain faithful to the Constitution while protecting those who may be wronged by a dishonest or corrupt media outlet?

In this case, a number of factors favor Dominion.

Below are some key cases from American history that either have helped shape how that question is answered or which help illustrate the nuances of First Amendment law.

When Salon reached out to Leonard M. Niehoff, a professor at the University of Michigan Law School who specializes in the First Amendment, he replied that "it's tempting to answer your question not by citing three cases but by suggesting reading Sullivan three times. The decision casts a lot of light on the Dominion case."

Niehoff is alluding to New York Times Co. v. Sullivan,a landmark Supreme Court decision that simultaneously protected America's free press and stopped white supremacists from using frivolous litigation to silence their critics. The case's roots can be traced back to 1960 when The New York Times ran a full-page piece by Dr. Martin Luther King, Jr.'s supporters that criticized the police in Montgomery, Alabama for engaging in racist violence against civil rights protesters. White supremacists often responded to critical newspaper coverage by filing frivolous defamation lawsuits, usually by nitpicking an article's factual errors and suing to intimidate publishers into not running pro-civil rights content.

On this occasion, however, the wealthy right-wingers who lined up to back Montgomery police commissioner L. B. Sullivan's intimidatory litigation found their money was wasted. Despite winning early trials due to pro-Southern audiences that were openly hostile to civil rights first in an Alabama jury trial, then with the Supreme Court of Alabama the segregationists were shocked when the Supreme Court unanimously ruled against them in 1964. It found that in order to sustain a defamatory accusation, the plaintiffs must prove that the claim was false and that the individual(s) making it did so with either "actual malice" or recklessly.

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"Consider: Sullivan seeks to create room for the media to make good faith mistakes when telling important stories," Niehoff explained. "Is this a case of good faith mistakes? Were these journalists trying to get the story right but getting it wrong for understandable reasons? Or is this a different kind of case altogether?"

Niehoff also noted that, as with Sullivan,theDominioncase is also a microcosm of where America is at this point in its history."Sullivan had its origins in the civil rights movement and recognized the threat that southern officials would weaponize libel cases to resist it," Niehoff wrote to Salon. "Sullivan is a case about a great social struggle and the role of the media in advancing it. The Dominion case has its origins in a lie about an election outcome. It is a case about a great fraud, where the plaintiff claims the media helped perpetuate it. One can appropriately wonder what the Dominion case says about where we've strayed to as a society."

This is a situation where, although a court case did not directly set a legal precedent, it set a chill through an entire industry as effectively as if the court had ordered it.

"A psychiatrically-impaired POTUS is capable of doing so much harm," Dr. David Reiss, a psychiatrist and expert in mental fitness evaluations who along with Lee contributed to the book "The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President," told Salon. "In my opinion, it is irresponsible for mental health professionals not to inform the public and initiate discussion regarding concerns based upon objective facts (not speculation)."

"The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government," Black explained. "The press was protected so that it could bare the secrets of the government and inform the people. Only a free and unrestrained press can effectively expose deception in government."

"The decision is a bit of a libel buffet, offering up lots of principles that are somewhat disconnected from each other," Niehoff told Salon about the Gertzdecision. "But it seems to me possible that the case's approach to damages and other issues could prove important [toDominion]."

The story behindGertzbegins in 1968, when a lawyer named Elmer Gertz decided to represent the family of Ronald Nelson, who had been gunned down by Chicago police officer Richard Nuccio. Because Nuccio was ultimately convicted of second-degree murder, Nelson's family was suing him for damages. The John Birch Society opposed Gertz's advocacy, however, and falsely published that he was actually working for Communist front organizations as part of a conspiracy to destroy America's police force. They also falsely claimed that Gertz had rigged the trial to get Nuccio's conviction and that he himself had a criminal record. Gertz sued American Opinion (the publication which advanced these Bircher ideas) and, although he won a jury verdict and $50,000 award, lost his libel suit because a judge found he had not proved "actual malice." The Supreme Court later affirmed the lower court's ruling. As a result, America does not apply the standard of "strict liability" (holding someone accountable for the consequences of their actions regardless of their intentions) in defamation cases.

As the Gertzcase helps illustrate, one of the key variables in determining whether defamation occurred is ascertaining the presence or absence of "actual malice." While the courts found that Gertz did not meet that standard, the same was not true for Daniel Connaughton, a candidate for Hamilton, Ohio Municipal Judge in 1983. When it looked like Connaughton was going to win the election becausethe incumbent's Director of Court Services was arrested on bribery charges, a local newspaper owned by Harte-Hanks Communications that supported the incumbent decided to change that. Soon they ran a front-page story that falsely accused Connaughton of orchestrating the arrest through "dirty tricks." Among other things, it dishonestly stated that Connaughton had offered a member of the grand jury bribes in exchange for her assistance with the investigation. Connaughton sued Harte-Hanks and won both in a district court and in a Court of Appeals, as the evidence proved Harte-Hanks had intentionally published something false in order to harm Connaughton's reputation a clear example of "actual malice."

When Niehoff was asked to list important First Amendment cases, he made a point of singling Connaughton.

"There, the Supreme Court clarified the kinds of evidence that can show the presence of actual malice," Niehoff told Salon. "It turns out that the evidence looks a fair amount like the same sort of evidence a plaintiff would use in a simple negligence case. The actual malice standard provides important protection, but, once you get to trial, it's probably less protection than is generally understood. The case also clarifies how appellate courts should review adverse jury verdicts, which may ultimately be a factor here."

"In the present case, it is undisputed that Aequitron is a corporate plaintiff and that CBS is a media defendant," the judge ruled. "The defamatory material is a matter of legitimate public interest, as it affects the health and well-being of babies and is subject to federal regulation. Thus, the actual malice standard applies."

At the last second, however, the judge presiding over the case decided that the "veggie libel" law could not be applied in this case, forcing the plaintiffs to instead prove defamation under normal criteria instead of merely needing to prove financial losses. This was all that Oprah needed to prevail.

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First Amendment history hurts Fox News: How precedent helps ... - Salon

The report that the special counsel, Jack Smith, is contemplating handing up charges of wire fraud against President Trump suggests that the Manhattan district attorney is not the only prosecutor pursuing exotic charges against the former president.

Instead, creative charging appears to be the name of the game against the man who could be the highest-profile defendant America has ever seen, as the laws long arm stretches to reach the countrys 45th president.

As District Attorney Alvin Bragg works on transforming misdemeanors into felonies and the Fulton County district attorney, Fani Willis, considers using anti-racketeering law meant for mobsters against Mr. Trump having already deployed it against teachers and rappers Mr. Smith, who once tried war crimes, is getting in on the action.

Mr. Smith, who has been tasked by Attorney General Garland with investigating both the trove of documents at Mar-a-Lago and Mr. Trumps possible culpability for the events of January 6, 2021, is according to the Washington Post investigating whether Mr. Trump used false claims about voter fraud to raise money.

Subpoenas issued to alumni of Mr. Trumps presidential campaign appear to show that Mr. Smith is zeroing in on the period between the election of November 2020 and the end of Mr. Trumps time in office in January 2021. Mr. Trump raised more than $200 million during that span.

The federal wire fraud statute makes it illegal to make false representations over email for fiduciary gain. It is rooted in mail fraud laws, but according to the Department of Justice requires the use of an interstate telephone call or electronic communication made in furtherance of the scheme. To be convicted, a defendant must intend to defraud, not merely end up doing so.

The question, then, is whether Mr. Trumps claims of a stolen election constituted a scheme or artifice that endeavored by means of false or fraudulent pretenses, representations, or promisesto obtain money or property. In the event of a conviction, the statute carries a maximum 20-year prison sentence.

Mr. Smith could, though, run into a significant roadblock in his pursuit of Mr. Trump; the First Amendment. A warning can be found in the Alien and Sedition Acts of 1798, which banned, among other things, 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.

Those notorious acts, though, were repealed before they faced judicial scrutiny. More than a century and a half later, the Supreme Court held, in New York Times Co. v. Sullivan, Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.

That case also prevented a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false.

The issue here, though unlike Governor Palins suit against the Times, for which the riders of the United States Second Appeals Circuit will eventually have to bestir themselves is not things said about Mr. Trump, but the claims he himself has made about the validity of the 2020 election.

Mr. Trump used those claims to raise funds, which means they fell under the category of a solicitation of money, albeit for politics not for commerce. While commercial speech was historically not protected by the First Amendment, the 1970s saw a sea change. In 1975, Justice Harry Blackmun ordained, The existence of commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.

In a post Monday on Truth Social, Mr. Trump appeared undeterred in his efforts to cast doubt on the last presidential election. He addressed the chief executive officer of News Corporation, Rupert Murdoch, in respect of another defamation case, this one being pushed by Dominion Voting Systems, saying, THE ELECTION OF 2020 WAS RIGGED AND STOLLENYOU KNOW IT, & SO DOES EVERYONE ELSE.

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Jack Smith Appears To Be Getting Creative in Push To Charge ... - The New York Sun

On Monday April 17, Eastern Kentucky Universitys (EKU) Theatre Program hosted Bard in Drag. Actors Johnathan Hibbard, who played the male role, and Chris Holmes, who played the female role, dressed in Elizabethan costumes and read parts of pieces of Shakespeare out loud.

Matthew Johnson, the director of the Theatre Program, said Bard in Drag was inspired by the push for anti-drag laws in many Southern states.

The anti-drag bill is the one that most readily affects what we do, said Johnson. With the way it was written, it just made any drag functionally illegal.

According to Senate Bill 115, an adult performance means a live sexually explicit performance, or a live performance involving male or female impersonators who provide entertainment that appeals to a prurient interest in sexual conduct.

The bill also states that a person is found guilty of engaging in an adult performance when he or she engages in an adult performance on publicly owned property, or in a location where the person knows or should know that the adult performance could be viewed by a person under the age of 18 years old.

During the performance, actresses Paige Harrod, Paige Lambert, and Taylor Drane, dressed up as senators. After screaming that the Shakespeare performance was obscene and a slur, Harrod, Lambert, and Taylor hauled Hibbard and Holmes away from the stage.

This event is part of First Amendment Week held by EKUs chapter of Society of Professional Journalists (SPJ).

For more First Amendment Week coverage visit http://www.easternprogress.com or follow the Eastern Progress on social media.

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"The Bard in Drag" event kicks off First Amendment week - The Eastern Progress Online

Montana would become the first state in America to fully ban TikTok starting in 2024, after the states legislature passed a bill Friday banning the short-form app over security risks related to its ownership by China-based ByteDance. The bill now goes to the desk of Montana Gov. Greg Gianforte before it can become law, while TikTok said it plans to fight the legislation.

Under the Montana legislation, which would go into effect Jan. 1, 2024, TikTok would face fines of up to $10,000 per day per violation if it continued to operate in the state. In addition, the state could impose penalties on Apple and Google if they allow users in Montana to download the app from their respective app stores.

The Biden administration has threatened to enact a nationwide ban on TikTokunless ByteDance sells its ownership stake in the app. Similarly, the legislation in Montana would void the restrictions on the app if ByteDance sells TikTok.

The Montana bill says that the Peoples Republic of China is an adversary of the United States and Montana and has an interest in gathering information about Montanans, Montana companies and the intellectual property of users to engage in corporate and international espionage. The legislation also says that Chinas government exercises control and oversight over ByteDance, like other Chinese corporations, and can direct the company to share user information, including real-time physical locations of users. In addition, the bill alleges that TikTok fails to remove, and may even promote, dangerous content that directs minors to engage in dangerous activities.

A spokesperson for Gianforte told CNN, The governor will carefully consider any bill the legislature sends to his desk. In December, Gianforte banned TikTok from being used on state government devices; the Montana University System also banned TikTok after the governor urged it to follow suit.

TikTok blasted the passage of the Montana bill as an attempt to censor American voices.

The bills champions have admitted that they have no feasible plan for operationalizing this attempt to censor American voices and that the bills constitutionality will be decided by the courts, TikTok said in a statement. We will continue to fight for TikTok users and creators in Montana whose livelihoods and First Amendment rights are threatened by this egregious government overreach.

Analysts said thechances of a U.S. ban on the app increased after CEO Shou Zi Chews appearance before a House hearing last March, given deep skepticism expressed by lawmakers Republicans and Democrats alike about his answers about Chinas influence over TikTok and the communist regimes ability to track user data via the app, as well as TikToks efforts to curb misinformation and harmful content. Chinas commerce ministry had said said it is firmly opposed to a forced sale of TikTok and that any such transaction would be subject to Chinese government approval.

A survey released last month by Pew Research Center found that50% of American adults favor a U.S. government ban of TikTok, which claims to havemore than 150 million U.S. monthly users. The survey of American adults, conducted between March 20-26, found that among people who actually use TikTok just 19% support a ban.

Donald Trump, in the final months of his presidency, attempted to enact a TikTok ban also over perceived national security threats posed by its Chinese ownership. Federal judges ruled thatTrump overstepped his authority in ordering a ban on TikTok, finding the administrations hypothetical concerns about TikToks security risks unconvincing.

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Montana Passes Bill Banning TikTok, Which Vows to Continue to Fight for First Amendment Rights - Variety

Attorney General Paxton has sent a multistate letter to the U.S. Department of Education condemning the Biden Administrations move to rescind an existing regulation that protects the religious freedom of college students.

A proposed federal rule would remove a regulation that helps guarantee that universities receiving Education Department grants respect the First Amendment. Under the existing regulation, religious student organizations may not be denied any right, benefit, or privilege that is afforded to other student organizations, helping ensure that administrators respect the constitutionally protected exercise of religious beliefs.

Protecting the existing rule is a priority as religious student organizations are increasingly targeted. Both left-wing university administrators and Bidens Department of Education conduct brazen attacks on the rights of students seeking religious fellowship with like-minded peers. By removing First Amendment protections, the proposed rule would intensify the hostility to students constitutionally protected right to religious expression.

The Ohio-led comment letter states: [R]eligious students have greatly enriched campus communities, through charity, service, temperance, and commitment to learning. They are owed the right to freely exercise their religion, however out of fashion with an increasingly anti-religious bureaucratic regime that might be. Instead, the proposed rule incentivizes the maltreatment of religious groups by uniquely labeling them discriminators.

To read the full letter, click here.

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Paxton Challenges Biden Administration's Efforts to Remove First ... - Texas Attorney General (.gov)