Below is my column in USA Today on a troubling warrant issued by the Justice Department to force the disclosure of visitors to an anti-Trump site. The DisruptJ20 case raises very serious questions regarding political speech and associational rights.
Here is the column:
It is the nature of power. Governments tend to focus on what they can do rather than what they should do in the use of authority. After all, officials view their own motivations and purposes in the most benign light.
Of course, those same actions can be viewed in a very different light by citizens targeted by the government. That is the conflict unfolding in a small courtroom in Washington D.C. where District of Columbia Superior Court Judge Lynn Leibovitz is reviewing a motion from a company named DreamHost.
The DreamHost motion details an effort by the Trump Administration to gain information on 1.3 million IP addresses. The Justice Department is seeking identifying information for people who went to an anti-Trump website in an overbroad demand that seriously undermines free speech and free association protections.
At issue are people who visited a site called DisruptJ20 or #DisruptJ20. The site seeks to help people in “organizing,” “resistance,” “disruptions” and “civil disobedience.” It does not call for violence or property destruction. It did feature press releases including one that stated that “Our goals were: 1. Set a tone of resistance against the Trump administration; 2. Disrupt the normal flow of the inauguration; and 3. Empower local organizers in D.C. and give them skills and relationships to continue their work.”
The website helped coordinate demonstrations against President Trump in Washington, D.C., on Inauguration Day in January. Some of those protesters turned violent and have faced indictments. It is clear that the government has a right to investigate those individuals but the government also has a duty to tailor such demands in light of the deep free speech interests involved in such demonstrations. There is no evidence of such tailoring in this demand. Indeed, it is an example of how government officials tend to focus on the use of power rather than the misuse of their power.
DreamHost was hit by the demand for “names, addresses, telephone numbers and other identifiers, e-mail addresses, business information, the length of service (including start date), means and source of payment for services (including any credit card or bank account number), and information about any domain name registration.”
The government demand reflects a view that, so long as it is investigating a crime, it can throw caution to the winds in terms of how its actions will impact upon political speech. Justice Anthony Kennedy wrote in Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 701 (1992) that “The First Amendment is often inconvenient. But … Inconvenience does not absolve the government of its obligation to tolerate speech.”
There is little evidence of either tolerance or restraint in this warrant. It shows a complete absence of concern for the implications to political speech in this country. The demand would identify thousands of citizens who oppose the Administration with their email and other information.
Such demands have a long and troubled history in our country. In 1958, the Supreme Court stopped an effort to reveal the names of people working with the NAACP and described the right to privacy in such groups “indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
Of course, even (as implausible as it may seem) Hillary Clinton has proclaimed herself a part of the “resistance” to the Trump Administration. If Clinton wanted to go on DisruptJ20 as the ultimate establishment figure turned resistance fighter, she has every right to do so. Of course, she would have every reason to use an alias — as much to protect her from the wrath of the proletariat as from prosecutors. People have a right to protest. They are also subject to arrest for any illegal acts. People should be able to be anonymous, while crimes should not be.
The Supreme Court has repeatedly sought to limit the “compelled disclosure of affiliation with groups engaged in advocacy.” This concern is at its apex when the government is seeking information on its own critics. Certainly, these concerns can make it more difficult for prosecutors, but, as Thomas Jefferson stated, “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.”
In the end, this is all being done in the name of prosecuting some miscreants who committed relatively minor property damage during the inauguration. The damage that will be left in the wake of this warrant is likely to be far more significant.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors. Follow him on Twitter @JonathanTurley.
I said lajes86….no one listened.
Wait a minute! Disruptj20 is the organizing arm of Antifa, the violent anarchist group whose goals are intimidation and silencing of anything they don’t agree with. Agreed the warrant is very broad; they should be able to tailor it better. Better yet, don’t worry about that site, but check out the Antifa facebook sites where they will find that they advocate anarchy and violence, because “have you ever tried to talk to Nazis?” Anyone who disagrees with them is a fascist and Nazi. This is the event site where disruptj20 sends the info on the various events and where the thugs get their marching orders: https://itsgoingdown.org/ I have been on that site to see what they are up to. A couple of months ago, our small peaceful rally in Philly was disrupted by these thugs; one guy was viciously attacked on his way to his car. Another small group was attacked on their way to a restaurant.
On that site, be sure to go down the page to the “Issue 2” video.
Enter Chelsea Clinton to the debate:
“Chelsea Clinton left twitter users scratching their heads on Thursday, when the former First Daughter compared southern Confederate war memorials with Satan; equating the relationship between the Northern and Southern United States to that of God and the Devil.
Clinton posted her comments on social media, writing, “The story of Lucifer-who rebelled against God-is part of many Christians’ traditions. I’ve never been in a church with a Lucifer statue.”
The backlash on twitter was swift, with users pointing out not only the absurdity of her statement, but also that she was factually incorrect.
“There are churches & cathedrals throughout the world that depict Satan as he is a necessary part of understanding the history of the Bible,” wrote one user.”
Yes, Allan. But did Chelsea Clinton ever visit one of those churches?
P. S. General Robert E. Lee was not Lucifer.
Diane – Robert E Lee was commander of West Point and so impressive that none of his daughters ever married. They could never find a man who could reach their role model. And let’s not forget that Lincoln offered command of the Union Army to Lee before he decided to defend Virginia from invasion.
Paul:
Well there’s the manifest fact the Robert E Lee, who finished second in his class at West Point and was by all accounts the best soldier in the US Army at the time he was offered its command by Lincoln, and that most eligible southern husbands were killed in the war.
mespo – read Mary Chesnut’s Diary from Dixie of the Civil War. Yes a lot of them died, but a lot them made it home. Who was riding on those horses with Bedford Forrest and the KKK? Wasn’t a bunch of Northern boys. 🙂
Generally speaking a lot of dirt farmers made it back. Most of the flower of confederate manhood was killed or crippled and their wealth taken. For example, at Gettysburg alone only one colonel of 13 in Pickett’s Division survived and all the brigade commanders died during Lee’s biggest folly.
mespo – true, but Mary Chesnut was at the center of a Confederate dating service during the war and knew everyone worth knowing in the South. Her diary is amazing, second only to Grant’s memoirs.
Read Porter’s memoirs. As for Mary, she’s a fine author but Ashley Chestnut just never took off. Hard to see those petticoats over the telegraph.
Nathan Bedford Forrest was the best general either side produced during the war by any measure. Rising from rank of private to general he was an u precedented and brilliant strategist. His ideas on race we’re complicated and he never advocated the kind of lawless violence against blacks he’s been caused of. Here’s wiki’s take on that which I’ve heard before: “In August 1874, Forrest “volunteered to help ‘exterminate’ those men responsible for the continued violence against the blacks.” After the murder of four blacks by a lynch mob after they were arrested for defending themselves at a BBQ, Forrest wrote to Tennessee Governor Brown, offering “to exterminate the white marauders who disgrace their race by this cowardly murder of Negroes.” [64]
By the end of his life, Forrest’s racial attitudes would evolve — in 1875, he advocated for the admission of blacks into law school — and he lived to fully renounce his involvement with the Klan that he headed and abolished.”
1) Diane, don’t you think her statement required a slightly broader viewpoint than the one you took?
2) Is the following statement wrong?
“There are churches & cathedrals throughout the world that depict Satan as he is a necessary part of understanding the history of the Bible,”
3) What is your point?
“former First Daughter compared southern Confederate war memorials with Satan;”
4) Do you believe Chelsea wasn’t comparing the two?
allan – I think Chelsea has a poor grasp of history, art history and Christian religion. I am not sure how she got into college, much less grad school.
Allan:
1) Yes, but . . . I want all of The Clintons to go away and stop bothering people.
2) No, but . . . Satan is not strictly necessary for an understanding of the political history of The Israelites in mythic form–at least not in the same way that the peculiar institution of chattel slavery is strictly necessary for the purpose of applying The Exodus Narrative to the descendants of former slaves in America.
3) My point is that Robert E. Lee was NOT Lucifer. Nor were any of the other confederate, secessionist rebels. The Pharoah and his pursuing army . . . maybe; but that’s a bit of a stretch as well.
4) No, presumably Chelsea was comparing the two–inaptly. I wish she hadn’t.
5) The American Civil War was followed by one of the most intense and sustained Jeremiads in our history.
I’m gonna lay down my heavy load.
Down by the riverside,
Down by the riverside,
Down by the riverside
I’m gonna lay down my heavy load
Down by the riverside
And I ain’t gonna study war no more.
6) Feel free to sing the verse about swords and shields, Allan.
Diane, it sounds that we are in general agreement.
Chelsea isn’t stupid in the IQ sense, but she doesn’t demonstrate the intellectual development many assume exists based upon her parentage. Then again many of our leaders are pretty stupid in a common sense way and haven’t actually done very much outside of government or academia.
Fishing expedition.
Or is it a phishing expedition?
Down by the riverside, down by the riverside.
I will publicly disclose my IP address to the Government:
It’s “NOYFB.”
You can figure it out.
Ralph Adamo – since I went to Vegas I put a VPN on my computer to protect my files in the hotels. Rather like the idea that my IP address is in different cities. I only bought a month, so it soon ends, but if I travel again I sure will do it.
Why do you put use VPN only when you travel?
allan – I am pretty secure at my home and all our banking is done through secure websites. However, on the road you never know who is out to get you.
I am not sure why one is more secure at home. I’m not disputing it. I am just gathering information. I considered buying one, but never did so because too many times I end up running into trouble.
allan – I am using PureVPN which was recommended by DataDoctors. Give it a month’s trial.
I will look at these things again. Thanks.
Some of the same people who have no concerns about protections for those visiting an anti-Trump site are vigorous defenders of the first amendment rights of Neo-Nazis and the Klan. If the Justice Department sought the IP addresses of all those visiting some of their websites, would they object then?
Some of the same people who have no concerns about protections for those visiting an anti-Trump site are vigorous defenders of the first amendment rights of Neo-Nazis and the Klan.
And some of the same people that vigorously protect the rights of those visiting an anti-Trump site have no concerns about protections for the first amendment rights of Neo-Nazis and the Klan.
See how easy that works. Both statements are statistically likely to be true and worthless.
Either of those groups would be wildly inconsistent and making decisions based on their agenda and not out of concern for laws or the Constitution.
Until the 2008 election cycle, I was ignorantly aligned with the GOP. I credit Obama with motivating me to begin studying civics. I’m now centered on natural rights and the rule of law. I do not support any political party and I will never trust a politician unless they can prove they deserve it.
That being said, the Left and the Right will always exist. We can survive if we anchor ourselves to natural rights and the rule of law. If we allow the extremes of either side to cause us to drag anchor, then we’ll continue with the insanity we have today.
Excellent Olly.
Thank you Allan.
Enigma, your point is well taken: The First Amendment protects “wildly inconsistent” dueling “agendas” pretty much everywhere except in courts issuing search warrants in keeping with The Fourth Amendment and perhaps under a few other exceptional circumstances as well.
Professor Turley sounds like a Post-Constitutional legal and Manifestonal scholar.
_________________________________________________________________
Citizens have freedom of speech and privacy.
Government has authority to make law and investigate violations of law with probable cause.
The Judicial Branch has no authority to “legislate from the bench” or amend through “precedent.”
______________________________________________________________
1st Amendment – Freedom of Speech.
4th Amendment – Privacy Limited by Probable Cause.
Article 1, Section 8 – Power to Make Law.
Article II, Section 2 – Power to Enforce Law.
No Constitutional Authority to Amend the Constitution by “Precedent.”
_______________________________________________________
What part of “Constitution” do you not understand?
George asks, “What part of “Constitution” do [we] not understand?”
The part where the executive branch finds probable cause to invade the privacy of 1.3 million visitors to a website on suspicion of conspiracy to incite riot–or worse.
Dinner:
Thank you for translating George. I thought his comment was a bad con law outline.
Oops, make that Diane. Damn spell check must be hungry.
Just don’t let spell check call me “late for dinner.”
Superb LOL.
My IP is: Isock Poodle.
I wonder what JT’s opinion is regarding the choice of filing in local, city district court of Washington, D.C. Of course, the majority of precedent will be federal Supreme Court opinions. Article 111 federal judges do enjoy lifetime tenure. However, in my jaded opinion, they also have FBI and other intelligence blackmail files.
It’s easy to figure out what’s happening. It only requires that you acknowledge that Trump is a dictator in waiting doing everything he can to destroy the institutions that are trying to contain him.
It’s easy to figure out what’s happening.
One thing is for certain; if you consider it easy to figure out then you’re being intellectually lazy.
It was easy since I’ve paid attention for two years [listening to Trump directly via his speeches, press conferences, and tweets] and read experts in authoritarian regimes.
IF our institutions hold, he will always be authoritarian but won’t be able to establish a dictatorship here.
Wow. You’ve been listening for a whole two years! You are truly a wise elder.
It only requires that you acknowledge that Trump is a dictator in waiting doing everything he can to destroy the institutions that are trying to contain him.
So your rigorous 2 year analysis concludes people must acknowledge the truth of something that has not happened based on your belief something is happening, without offering an iota of evidence to support that belief.
Yeah, no way is that intellectually lazy. Wow!
LOL Olly ! The ‘Roseanne’s’ of this country – where does one even start?
INlegaleagle,
The sad truth is I support the fact she is erring on the side of caution when it comes to the separation of powers and the rule of law. However I believe her paranoia is not centered on principled governance, but rather ideological bias.
But that’s just me. 😉
No evidence???? LOLOLOLOLOLOLOLOLOLOLOL.
Correct. She offered none in her post to support her statement. Perhaps you could help her out. Bwahahahahahaha!
Olly, would you please be so kind as to furnish us with at least one jot of evidence that there is a coup taking place that has not yet happened?
Roseane, Why don’t you listen to what he does?
Improved economy.
Decrease unemployment
VA corrections made
And loads of other things that would take a few pages.
What is your problem? Maybe you don’t like that illegal immigration has slowed down.
Olly, how much intellectual effort did you expend figuring out the hard way that paid anarchists were staging a slow-as-molasses coup attempt against President Trump?
Roseanne,
“VEROPHARMA”
Excuse me but your vacuous hyperbole and radical ideology are showing.
Dictatorship was precluded by the Founders with ubiquitous “checks and balances.” Read the Jay/Washington letter of July, 1787, which raised the presidential requirement from “citizen” to “natural born citizen” as a “strong check” against foreign allegiances by the commander-in-chief. You’ll come to understand how Obama was, is and will forever be ineligible and unconstitutional.
Trump cannot possibly be a dictator because of multiple “checks and balances.” The “checks and balances” currently being vigorously deployed against President Trump are designed to obfuscate the alleged egregious criminal and treasonous violations by Obama, Hillary, Wasserman, Rice, Power, Farkas, the DNC et al.
Interestingly, Julian Assange is being recruited and negotiated with regarding a plea-bargain which, allegedly, will include proof that Russia was not the source of DNC e-mails while Seth Rich was. And that Joseph Rago was a 34-year-old, Pulitzer Prize-winning, singular expert on Obamacare, with emphasis on its mortal defects, and was allegedly on his way to a meeting with a Russian about “Veropharma,” which allegedly involved pay-for-play by Hillary Clinton as Sec. of State and the new drug plant on the Ukraine/Russia border which was to make limited-by-profit drugs for compulsory purchase by participants in Obamacare, when he mysteriously died.
It is not dictatorship by President Trump which Americans must be concerned with, but allegedly grievous and malignant violations of the Constitution and law by current and former officials of the democrat party and civil officers of the United States.
This is new ground. I’m not certain where I stand on this. RICO investigations have always given me some agita. I understand the intent, but as we know “the road to hell is paved w/ good intentions.” I’ve seen both righteous and unrighteous RICO investigations. What may make me lean to allowing this is I think there is a coup underway and the internet is a valuable tool in supporting a coup.
That’s probable cause if I’ve ever seen it! Make sure your affidavit is attached to all future similar requests for this information.
Nick, I hope you won’t be too upset, but . . . has there ever before been a coup that took more than 200 days to come to fruition? Maybe there’s another name for molasses-like overthrows.
Another name for a glacial coup d’état–resistance? While peaceful transitions of power remain far preferable, one wonders how much longer before the coup d’grace?