Category: Constitutional Law

Little Brother Or Big Brother: The Public Applauds As Free Speech Dies On The Internet

166px-Ad_apple_1984_2Below is my column in USA Today on the fight between Trump and Twitter. As discussed below, this is a fight not for free speech but who will control free speech. Democrats want speech controls through private companies while the Administration wants speech controls through government agencies.  The choice is between Little Brother and Big Brother.

Here is the column:

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“Get The Facts”: How Twitter Is Making The Case Against Itself and Free Speech

Freedom_of_SpeechBelow is my column on the Twitter controversy and censorship of social media.  President Donald Trump has continued to tweet on cracking down on the riots as well as controversy over his tweets on Twitter.  Like former Vice President Joe Biden, he is now calling for the outright elimination of Section 230 of the federal Communications Decency Act.  While supported by many liberal members and commentators, Twitter continues to build a case against itself — and ultimately free speech on the Internet.

Here is the column:

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Supreme Court Rules 5-4 To Uphold Pandemic Orders Limiting Church Services

SCOTUS Early on in the pandemic, I wrote about how governors can shutdown churches under the Constitution.  On Friday, the Supreme Court voted 5-4 to reject an emergency appeal from a California church over the imposition of limits on the size of attendance at services.  The church came close to prevailing. Chief Justice John Roberts joined his liberal colleagues in upholding what he said were limits that “appear consistent” with the First Amendment. The cost ruling is an indication of how courts are applying closer scrutiny to the treatment of churches as opposed to other institutions allowed to have greater numbers of people.

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Twitter Hits Trump With New Warning Over Tweet “Glorifying Violence”

Twitter LogoLate last night, Twitter doubled down on its controversial labeling of tweets from President Donald Trump to flag what it views as misleading or offensive material.  Yesterday, I wrote a column on Twitter’s policy and a second column on President Trump’s response with an executive order. I have strongly opposed Twitter’s policy on censoring and labeling material, including the decision to correct a tweet from the President on the political debate over main-in voting. Undeterred, Twitter has issued a new warning that a tweet from the President on the rioting in Minneapolis was a violation of its rule for “glorifying violence.” Twitter is now making the case for government action to monitor and control social media.  The loser will ultimately be free speech.

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The Trump Executive Order and the Section 230 Option To “Strongly Regulate” Social Media

President Donald Trump’s executive order on social media is framed around the effort to remove protections under Section 230 of the Communications Decency Act. For those of us who teach torts, Section 230 has been a long controversy in its shielding of companies from liability in defamation and other lawsuits. As I write today in my Hill column, Twitter is dangerously wrong in its action against the Trump tweets and Trump is right that this represents a serious attack on free speech. However, I was also critical of the threat to “shut down” or “strongly regulate” media companies. Putting the retaliatory language aside, this is not a change that will likely succeed without congressional action. However, there are some legitimate questions that Congress should consider while, in my view, erring on the side of protecting free speech. Continue reading “The Trump Executive Order and the Section 230 Option To “Strongly Regulate” Social Media”

Trump Threatens To “Shut Down” Social Media Companies

donald_trump_president-elect_portrait_croppedI have a column criticizing Twitterfor its labelling of tweets from President Donald Trump as presumptively false. Twitter has yielded to demands in Congress to censor and regulate political speech.  In signature style, however, Trump promptly bulldozed the high ground in the controversy by threatening to close down social media companies through retaliatory regulations.  The First Amendment was written to bar that very authority in either the President or Congress or both.  The President cannot be the putative victim of private censorship while claiming the authority to engage in government censorship.  In fairness however Democratic leaders have threatened such a regulatory crackdown in the past. The coverage on Trump’s threat telling omits the fact that Democratic leaders and presidential candidates have made the same threat in the past.

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Executive Loses Job and Dog After Tirade Against African American Bird Watcher [Updated]

download-4We have long discussed the difficult questions raised by private and public employers punishing employees for postings on social media or controversies in their private lives.  When employers are identified in the media, controversial statements or conduct can have an obvious backlash against the them, particularly if there is an allegation of racist or discriminatory views.  For free speech advocates, this can raise a type of “Little Brother” problem but the First Amendment is focused on state, not private action. This ongoing debate over where to draw the line on private speech has a new controversy with the release of a truly shocking videotape of a woman, identified as Amy Cooper calling police on an African American bird watcher in Central Park. Her employer Franklin Templeton has put her on administrative leave while reviewing the incident.  She is reportedly the head of insurance investment solutions at Franklin Templeton.  Others have called for animal abuse charges to be filed as Cooper was shown yanking around her hapless dog during her tirade. The dog was surrendered to a local shelter for its protection. Update: Amy Cooper was fired shortly after she was put on administrative leave.

Mika Brzezinski Calls For Trump To Be Banned On Twitter

Twitter Logodonald_trump_president-elect_portrait_croppedScarborough’s co-host and wife Mika Brzezinki is calling for President Donald Trump to be banned on Twitter after he resumed his bizarre pushing of a conspiracy theory that Joe Scarborough murdered an intern in 2001. I have long denounced the President’s use of the tragic story of Lori Klausutis as callous and wrong.  There is not a shred of support for this claim and the constant tweets from the President only adds to this tragedy for the Klausutis family.  As I noted yesterday, “politics ain’t beanbag” but it is also not a license for such malicious slandering of your critics.  Having said that, I do not support the effort to ban Trump from Twitter. I have written repeatedly about the danger posed by calls from politicians for increased censorship on social media and the Internet.  Indeed, I criticized Trump recently for such banning of opposing views from his Twitter account.

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President Trump Pledges To Override State Orders As Ninth Circuit Upholds California Church Order

ninth-circuit-logodonald_trump_president-elect_portrait_croppedThis week, President Donald Trump has pledged that he will “override” state orders barring in-person religious services unless governors do so.  As I have previously noted, the President is claiming authority that is expressly denied to him in our system of federalism. While I have warned such deference given to the states wanes with time, any order to reopen churches in a given state will be based on the inherent authority of the courts, not the President.  This issue could be coming to a head with the split decision of a panel in the Ninth Circuit late Friday to uphold the order Gov. Gavin Newsom barring large in-person religious services.  Early on in the pandemic, I wrote about how governors can shutdown churches under the Constitution. The Administration can, and has promised, joined legal challenges to such state orders but it is not claiming the inherent authority of presidents to “override” state decisions.  The Justice Department has warned Newsom that his order is contravening constitutional rights.

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A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders

1280px-Emmet_G._Sullivan_2012We have been having a spirited debate over the orders of U.S. District Judge Emmet Sullivan in the case of former National Security Adviser Michael Flynn.  Now, the United States Court of Appeals for the District of Columbia has given Judge Sullivan ten days to respond to the motion for his removal.  The language is not discretionary so Sullivan will likely to have address the two controversial orders issued after the filing of the motion to dismiss.  In particular, he will have to state directly to the D.C. Circuit his understanding of his own discretion in such matters. I have maintained that the law in this areas is clear and that Sullivan has little ground upon which to deny this motion.  Continue reading “A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders”

The Flynn Court Drifts Dangerously Outside Judicial Navigational Beacons

Der Untergang der TitanicBelow is my column in USA Today on concerns over the recent orders of U.S. District Court Judge Emmet Sullivan. As leading lawyers, including a former Clinton U.S. Attorney openly advise Sullivan on how to “make trouble” for the Administration, these calls only magnify concerns over the purpose of these proceedings and whether they are increasingly detached from the merits of the pending motion. While many seem to relish the improvisational element, they risk undermining the judicial element of the proceedings. Flynn’s team has sought the removal of Sullivan (a very difficult proposition, particularly in the D.C. Circuit).  The intense opposition in the bar and teaching academy to Trump seems again to have greatly distorted the legal analysis, which fails to address the most troubling aspects of these orders.  As I have previously acknowledged, there are good-faith arguments to be made but much of the analysis has ignored the strong precedent against a denial of the motion and rarely even acknowledge the serious implications for the rights of defendants in such action. I address some of the countervailing (and in my view controlling) authority in a separate posting.

Notably, the D.C. Circuit gave Judge Sullivan ten days to respond to the motion seeking his removal. Thus, these issues will presumably be addressed by Judge Sullivan before any hearing is held.

Here is the column: Continue reading “The Flynn Court Drifts Dangerously Outside Judicial Navigational Beacons”

Former Clinton U.S. Attorney Calls Upon Sullivan To “Make Trouble” For The Administration [Updated]

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Out Like Flynn: How the Media Embraced Prosecutorial Misconduct As An Article Of Faith

440px-Michael_T_FlynnFor decades, the legal community has decried common practices used by prosecutors to coerce pleas from defendants. Prosecutors often stack up charges and then drain defendants until they agree to pleading guilty. There was a time when such abuses were regularly called out in leading newspapers. These are not those times. Continue reading “Out Like Flynn: How the Media Embraced Prosecutorial Misconduct As An Article Of Faith”

White House Blocks Twitter Account In Apparent Violation Of Court Order

President Donald Trump and the White House appear to have violated a 2019 federal court order that it cannot block twitter accounts from the official White House account, @realDonaldTrump, based in the content of its tweets.  The account, @realDonaldTrFan, has over 313,000 followers and savages the President regularly with parodies. If the site was blocked as reported, the action would be a flagrant disregarding of the authority of the federal courts.

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The New ACLU: The Once Premier Protector of Due Process Has Filed A Lawsuit Opposing Due Process Protections

downloadFor years, many of us who have long supporteded the American Civil Liberties Union (ACLU) have grown alarmed by its abandonment of core principles in the support of civil liberties in favor of support what seems a more political agenda.  Under the leadership of a President Susan N. Herman and Executive Director Anthony Romero, the ACLU has dropped support for unpopular causes while aligning itself more closely with the Democratic Party’s position on issues ranging from immigration to sexual harassment.  I have spent my life supporting the ACLU and speaking at its conferences. It has been very painful for many of us in the “Old guard” as these political advocates have taken over the board and organization. That has been evidenced as the ACLU moved to develop a more nuanced approach to “hate speech” after criticism following the Charlottesville protests.  Free speech protection was once the touchstone of the ACLU which was fearless in its unpopular advocacy. It is now an area of open retreat for the organization as the leadership seeks to appease irate donors. Despite the right to carry being a constitutional right, the ACLU has indicated that it will not vigorously support the right to lawfully carry weapons at protests. That is no more evident than in the truly shocking filing of the ACLU to oppose due process rights for students at our colleges and universities, particularly in the imposition of a higher and more consistent evidentiary standard.  While I found aspects of the brief to raise compelling points, the thrust of the brief is an attack on basic evidentiary protections that would have once been viewed as a position fundamentally at odds with the organization’s mission.

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