First Amendment News 286: Resources on the First Amendment, the former president, the Senate impeachment trial and what lies ahead

Given the historical importance of the recent Senate impeachment trial, I thought it useful to have some record of the relevant documents, news stories, videos, and op-eds concerning the First Amendment arguments tendered by the House managers and the counsel for the former president along with what it might all portend for the future.

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“He riles up a mob, incites them, he inflames them and then, when they’re about to do the most lethal damage, turns away and is derelict in his duty. That’s the reason it’s vital — vital! — that he be convicted and personally disqualified from running.”

— Laurence Tribe, Erin Burnett OutFront, CNN (Feb. 12)

“[T]he argument made by the House impeachment managers that the First Amendment does not apply to presidents or others who “attack our democracy” was precisely the argument made by Joseph McCarthy and his followers in the 1950s . . .”

— Alan Dershowitz, The Hill (Feb. 4)

“Holding the president accountable for his words on Jan. 6, as part of that pattern, does not run afoul of the First Amendment. The House impeachment resolution reflects this.”

— Anthony Romero, Executive Director, ACLU (Jan. 11)

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• Annie Karni, “N.A.A.C.P. Sues Trump and Giuliani Over Election Fight and Jan. 6 Riot,” The New York Times (Feb. 16) (legal complaint here)
• Russell Contreras, “NAACP sues Trump for inciting Capitol riot,” Axios (Feb. 16)
• Paul F. deLespinasse, “Why the First Amendment Does Not Apply to Impeachments,” Newsmax (Feb. 16)
• Mitch McConnell, “Acquittal Vindicated the Constitution, Not Trump,” The Wall Street Journal (Feb. 15)
• Brooke Seipel, “McConnell defends acquittal in WSJ op-ed but blasts Trump’s ‘unhinged falsehoods‘,” The Hill (Feb. 15)
• Steven Dennis, “Republican Senators and Why They Voted as they Did,” Twitter (Feb. 15)
• “The other time Trump was charged with incitement: Interview with Jonathan Adler,” Smerconish, CNN (Feb. 14) (video)
• “Raskin: ‘We Have No Regrets At All’ On Impeachment Trial Loss,” Meet The Press, NBC News (Feb. 14) (video)
• “Statement of Former President Donald Trump,” Twitter (Feb. 13)
• “Senate Majority Leader Chuck Schumer’s speech following Trump’s acquittal,” CNN (Feb. 13)
• “Pelosi blasts McConnell, others who voted to acquit as ‘cowardly group of Republicans’,” ABC News (Feb. 13)
• “Managers highlight McConnell’s agreement that they proved case,” ABC News (Feb. 13)
• “McConnell’s full remarks following Senate vote to acquit Trump,” NBC News (Feb. 13) (video)
• Weiyi Cai, Annie Daniel, Jon Huang, Jasmine C. Lee & Alicia Parlapiano, “Trump’s Second Impeachment: How the Senate Voted,” The New York Times (Feb. 13)
• Maanvi Singh, Adam Gabbatt, & Martin Belam,”Trump impeachment: defense wraps up, claiming free speech is at stake –as it happened,” The Guardian (Feb. 12)
• Mark Sherman, “Trump’s free speech impeachment defense open to dispute,” Associated Press (Feb. 12)
• Jacqueline Thompson, “‘How Dare You?’: Trump Impeachment Lawyer Bristles Over Scholars’ Opposition to Defense Arguments,” Law.com (Feb. 12)
• “Trump’s Defense Rests After Brief Presentation, Allowing Senate to Begin Question Phase,” The New York Times (Feb. 12) (see here also)
• Louis Jacobson, “How solid is Donald Trump’s First Amendment impeachment defense?,” Politifact (Feb. 12)
• Jess Bravin, “Trump’s Impeachment Trial Grapples With Definition of Incitement,” The Wall Street Journal (Feb. 12)
• Ian Millhiser, “Trump’s false claim that impeachment violates the First Amendment, explained,” Vox (Feb. 12)
• “Trump’s Defense Team Argues First Amendment Protection,” The New York Times (Feb. 12) (video)
• Manu Raju & Alex Rogers, “Three GOP senators meet with Trump’s lawyers on eve of impeachment defense presentation,” CNN (Feb. 11)
• Morgan Phillips, “Dem impeachment managers target Trump lawyers’ First Amendment argument, calling it a ‘distraction’,” Fox News (Feb. 11)
• Josh Blackman, “A Reply to the House of Representatives’ Managers’ Reply Memorandum,” The Volokh Conspiracy (Feb. 11)
• “Trump not protected by First Amendment for inciting insurrection, Rep. Raskin says,” PBS (Feb. 11) (video)
• Dom Calicchio, “Jim Jordan: Dems ignoring that Trump urged DC crowd to protest ‘peacefully and patriotically’,” Fox News (Feb. 11)
• Brakkton Booker, “House Impeachment Managers Say Trump’s ‘Incitement’ Is Not Protected Speech,” NPR (Feb. 10)
• Noah Feldman, “Impeachment doesn’t violate Trump’s First Amendment rights,” Arizona Daily Sun (Feb. 9)
• Jacob Sullum, “Trump’s Dubious First Amendment Defense Against Impeachment,” Reason (Feb. 9)
• Jonathan Turley, “Trump impeachment trial – No, impeachment is not insulated from free speech arguments,” Fox News (Feb. 9)
• Jonathan Turley, “‘The First Amendment Does Not Apply’: A Response to the Letter of Scholars in Rejecting Trump Arguments Under The First Amendment,” JonathanTurley.org (Feb. 8)
• Matt Naham, “Federalist Society Co-Founder: Trump’s Impeachment Defense Is Like Arguing a President Can’t Be Convicted for Wearing a Swastika,” Law & Crime (Feb. 8)
• Ilya Somin, “Trump’s First Amendment rights don’t matter for his impeachment trial,” The Washington Post (Feb. 8)
• Josh Blackman, “What Do ‘Many’ of the 140+ Law Professors Think About the First Amendment and Impeachment?,” The Volokh Conspiracy (Feb. 6)
• Open letter: “Constitutional Law Scholars on President Trump’s First Amendment Defense,” (Feb. 5) (NYT story here)
• Elliot Mincberg, “Free Speech Arguments Against Trump’s Impeachment Dishonor The First Amendment,” People for the American Way (Feb. 5)
• Alan Dershowitz, “The House impeachment brief endangers freedom of speech,” The Hill (Feb. 4)
• Catherine J. Ross, “What the First Amendment Really Says About Whether Trump Incited the Capitol Riot,” Slate (Jan. 19)
• Keith E. Whittington, “Is There a Free Speech Defense to an Impeachment?,” LawFare (Jan. 19)
• Suzanne Nossel, “Don’t Let Trump’s Second Trial Change the First Amendment,” The New York Times (Jan. 14)
• Joseph Kennedy, “There’s a Big Hole in Trump’s First Amendment Defense,” Slate (Jan. 14)
• Einer Elhauge, “The First Amendment doesn’t protect Trump’s incitement,” The Washington Post (Jan. 14)
• James D. Zirin, “Incitement and the First Amendment,” Moyers on Democracy (Jan. 12)
• Anthony D. Romero, “We Can Uphold Free Speech and Hold President Trump Accountable,” ACLU (Jan. 11)

Main documents 

• Trial Memorandum of the United States of Representatives in the Impeachment Trial of President Donald J. Trump
• Brief Filed by House Impeachment Managers
• Trial Memorandum of Donald J. Trump, 45th President of the United States of America
• Answer of President Donald John Trump, 45th President of the United States, to Article I: Incitement of Insurrection

The lawyers 

House lawyers

• Jamie Raskin
  Rep. Stacey Plaskett
• Diana DeGette
• David Cicilline
• Joaquin Castro
• Eric Swalwell
• Ted Lieu
• Stacey Plaskett
• Madeleine Dean
  Michael T. van der Veen (van der Veen, O’Neill, Hartshorn, and Levin Law)
• Joe Neguse

Former president’s lawyers

• Bruce L. Castor, Jr.
• David Schoen
• Michael T. van der Veen

Symposium on ‘National Security, Whistleblowers & the First Amendment’ 

• “National Security Whistle Blowers & The First Amendment,” First Amendment Law Review (Jan. 22)

Panel 1: “Classification and Access to National Security Information”

• Margaret Kwoka, Professor of Law at University of Denver Sturm College of Law
• David Pozen, Vice Dean for Intellectual Life and Charles KellerBeekman Professor of Law at Columbia Law School
• Steven Vladeck, Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law

Panel 2: “The Press, Whistleblowers, and Government Information Leaks”

• Heidi Kitrosser, Visiting Professor of Law at the Northwestern Pritzker School of Law
• David McCraw, Senior Vice President and Deputy General Counsel at The New York Times Company
• Mary-Rose Papandrea, Judge John J. Parker Distinguished Professor of Law & Associate Dean for Academic Affairs at University of North Carolina School of Law

Upcoming law review symposium on government speech

• University of Illinois Law Review 2022 Symposium (April 16)

10 a.m., Welcoming Remarks
Vikram D. Amar, University of Illinois College of Law

10:05 a.m., Opening Keynote
Helen Norton, University of Colorado Law School

10:15 a.m., Panel I

Panelists:
Claudia E. Haupt and Wendy E. Parmet, Northeastern University School of Law
Kate Shaw, Cardozo School of Law
Danielle K. Citron, University of Virginia School of Law

Moderator:
Jason Mazzone, University of Illinois College of Law

11:30 a.m., Panel II

Panelists:
William Araiza, Brooklyn Law School
Mary-Rose Papandrea, UNC School of Law
Clifford Rosky, University of Utah S.J. Quinney College of Law
Alexander Tsesis, Loyola University Chicago School of Law

Moderator:
Jason Mazzone, University of Illinois College of Law

1 p.m., Panel III

Panelists:
Erwin Chemerinsky, UC Berkeley School of Law
Michael S. Kang, Northwestern Pritzker School of Law and Jacob Eisler, University of Southampton Law School
Ciara Torres-Spelliscy, Stetson University College of Law

Moderator:
Jason Mazzone, University of Illinois College of Law

For more information:
Yongli Yang
JD Candidate, Class of 2021
Managing Internet & Symposium Editor, University of Illinois Law Review, 2020-2021
University of Illinois

New scholarly article on First Amendment and incorporation doctrine 

• James Y. Stern, “First Amendment Lochnerism & the Origins of the Incorporation Doctrine,” University of Illinois Law Review (2020)

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine’s justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton’s recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as having three basic components, of which First Amendment incorporation predominated. It goes on to show how First Amendment incorporation drew in important ways from existing doctrine, including important strands of “Lochnerian” jurisprudence, and was structured in a way that in turn facilitated subsequent incorporation of criminal procedure protections. Finally, it notes that in its critical beginning moments, incorporation decisions did not consider, much less adjudicate, the kinds of issues that are today central to discussions of judicial federalism.

New scholarly article on Garcetti

• David Hudson, “The Supreme Court’s Worst Decision in Recent Years – Garcetti v. Ceballos, the Dred Scott Decision for Public Employees,” Hamline Law Review (2020)

So to Speak podcast: ‘The Fight for Free Speech’

• Interview with Ian Rosenberg

In this episode of So to Speak: The Free Speech Podcast, we are joined by media lawyer Ian Rosenberg to discuss his new book, “The Fight for Free Speech: Ten Cases That Define Our First Amendment Freedoms.”

Rosenberg is assistant chief counsel at ABC, Inc., where he has provided pre-broadcast counsel for ABC News clients on libel, newsgathering, intellectual property, and FCC regulatory issues since 2003.

Related

• “Webinar: Ian Rosenberg: The Fight for Free Speech,” March 4 at 7 p.m. EST, hosted by the First Amendment Museum
• “Conversation with Ian Rosenberg,” First Five Now, Freedom Forum (Feb. 11)
• “Author Shares Excerpts on Free Speech: Ian Rosenberg and The Marketplace of Ideas,” First Amendment Watch (Feb. 9)

Clear and Present Danger podcast on free speech and racial justice 

• “Free Speech and Racial Justice: Friends of Foes?” Episode 41

In May 2020, protests erupted all over the U.S. after a video emerged of a white police officer killing a black man named George Floyd. Millions took to the streets in support of racial justice under the rallying cry “Black Lives Matter.” Most protests were peaceful, but several cities experienced large-scale violence. Free speech was also affected in the process. A disturbing number of incidents of police brutality and excessive force against peaceful protesters and journalists were documented. President Trump accused a Black Lives Matter leader of “treason, sedition, insurrection” and labelled protestors as “terrorists.”

But demands for structural change also led to calls for de-platforming people whose views were deemed hostile to or even insufficiently supportive of racial justice. A Democratic data analyst named David Shor was fired after tweeting a study that showed that nonviolent black-led protests were more effective than violent ones in terms of securing voter support. In another instance, New York Times staffers protested that the newspaper put “Black @NYTimes staff in danger” by running a provocative op-ed by Republican Senator Tom Cotton, which argued for deploying the military to quell riots. The newsroom revolt led to opinion editor James Bennet resigning.

Academia was affected too. A letter signed by hundreds of Princeton faculty members, employees and students demanded a faculty committee be established to “oversee the investigation and discipline of racist behaviors, incidents, research, and publication” and write “Guidelines on what counts as racist.”

Social media companies came under intense pressure to take a more robust stand on “hate speech.”

The entrenchment of so-called “cancel culture” caused around 150, mostly liberal, writers and intellectuals to sign an open “Letter on Justice and Open Debate.” The letter argued against what the signers saw as “intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.” The letter drew sharp criticism from many journalists, writers and intellectuals for being “tone-deaf,” “privileged,” “elitist” and detracting from or even hurting the struggle for racial justice.

The wider debate often turned nasty — especially on social media — with loud voices on each side engaging in alarmist, bad faith arguments ascribing the worst intentions to their opponents. Many of those concerned about free speech warned of creeping totalitarianism imposed by “social justice warriors” run amok, intent on imposing a stifling orthodoxy of “wokeism.” Some confused vehement criticism of a person’s ideas with attempts to stifle that person’s speech. On the other hand, some racial justice activists outright denied the existence of “cancel culture” and failed to distinguish between vehement criticism of a person’s ideas and calling for that person to be sanctioned by an employer, publisher or university. Some even accused free speech defenders of being complicit in or actual defenders of white supremacy and compared words deemed racially insensitive with violence.

Underlying these debates is a more fundamental question. Is a robust and principled approach to free speech a foundation for — or a threat to — racial justice?

To help shed light on this question, this episode will focus on what role the dynamic between censorship and free speech has played in maintaining and challenging racist and oppressive societies. The episode will use American slavery and segregation, British colonialism, and South African apartheid as case studies.

More in the news

• Asawin Suebsaeng, Lachlan Cartwright, & Adam Rawnsley, “Dominion Says It Will Sue MyPillow CEO Mike Lindell Over Election Fraud Claims,” Daily Beast (Feb. 16)
• Michael Powell, “Obscure Musicology Journal Sparks Battles Over Race and Free Speech,” New York Times (Feb. 14)
• “Arizona Lawmakers Move Forward on Anti-Protest Bill,” First Amendment Watch (Feb. 16)
• Tyler Olson, “First Amendment group sues UCF over bias response team, speech code,” Fox News (Feb. 16)
• Adam Steinbaugh, “University of Colorado responds to questions on Eastman’s sidelining, raises new questions,” FIRE (Feb. 15)
• David Hudson, “University investigates grad student’s social posts; she sues,” The Free Speech Center (Feb. 15)
• Elliott McLaughlin, “Larry Flynt waged many First Amendment wars — and not just in defense of porn,” CNN (Feb. 13)
• Alison Durkee, “Powell In Dominion Defamation Case,” Forbes (Feb. 12)
• Eugene Volokh, “Does the Government Have the Right to Control Content Moderation Decisions?,” The Volokh Conspiracy (Feb.12)
• Soraya Ferdman, “Fox Asks Judge to Dismiss Smartmatic Lawsuit, Claims its Coverage was Protected by the First Amendment.” First Amendment Watch (Feb. 12)
• “Justice Department Drops Case Against Former Aide to Melania Trump,” First Amendment Watch (Feb. 9)
• Kashmir Hill, “Clearview AI’s Facial Recognition App Called Illegal in Canada,” New York Times (Feb. 3)

2020-2021 SCOTUS term: Free expression & related cases

Cases decided 

• Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)

Cases argued

• Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)
• Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)
• Carney v. Adams (OA: Oct. 5, 2020) (standing/judicial elections)

Cert. granted

• Mahanoy Area School District v. B.L.
• Thomas More Law Center v. Becerra 
• Americans for Prosperity Foundation v. Becerra
• Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)
• Carney v. Adams (OA: Oct. 5, 2020) (standing/judicial elections)
• Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)

Pending petitions

• City of Austin, Texas v. Reagan National Advertising of Texas Inc.
• Houston Community College System v. Wilson
• Thompson v. DeWine
• Corn et al v. Mississippi Dept. of Public Safety (5th Cir. opinion)
• Trump v. Knight First Amendment Institute
• Stockman v. United States
• Institute for Free Speech v. Becerra
• Arlene’s Flowers Inc. v. Washington

Cert. denied

• Jack Daniel’s Properties Inc. v. VIP Products LLC
• Hurchalla v. Lake Point Phase
• Bruni v. City of Pittsburgh
• Hunt v. Board of Regents of the University of New Mexico
• Lieu v. Federal Election Commission
• City of Sacramento, California v. Mann
• Evans v. Sandy City, Utah
• Reisman v. Associated Faculties of the University of Maine
• Austin v. Illinois
• Living Essentials, LLC v. Washington

First Amendment-related 

• Rentberry, Inc. v. City of Seattle
• Uzuegbunam & Bradford v. Preczewski, et al. (nominal damages and mootness in campus speech context) (cert. granted)
• National Association of Broadcasters v. Prometheus Radio Project (Re: Section 202(h) of the Telecommunications Act of 1996) (cert. granted)
• Federal Communications Commission v. Prometheus Radio Project (Re: FCC cross-ownership restrictions) (cert. granted)
• Retzlaff v. Van Dyke (state anti-SLAPP laws in federal diversity cases) (cert. denied)

Last scheduled FAN

• FAN 285: “The rise of defamation lawsuits by and against public figures”

The post First Amendment News 286: Resources on the First Amendment, the former president, the Senate impeachment trial and what lies ahead appeared first on FIRE.