Recently in First Amendment Category

Eugene Volokh has this post at the Volokh Conspiracy on one of the most blatant violations of the First Amendment right of freedom of speech that I have ever heard of from any government agency in my lifetime, and that is saying quite a lot.

Here is my question.  Is this violation of the First Amendment so clear that the commissioners can be prosecuted for the federal crimes of conspiracy against free exercise of federal constitutional rights, 18 U.S.C. §241, or deprivation of rights under color of law, §242?
In my last post, I gave a preview (courtesy of Harvard Law Prof. Mark Tushnet) of how dreadful a Clinton-appointed Supreme Court would be.

I am unhappy to report that that's not the principal reason Sec. Clinton should be denied the keys to the White House.  The principal reason is that, as she has already made clear, she will use the awesome power to prosecute as a political tool  If that is not the road to tyranny, what is?

That's a bold proposition, sure.  I invite readers to draw any other conclusion after reading the following account by Stephen F. Hayes in the Weekly Standard.
CJLF sometimes gets involved in freedom-of-speech issues as they sometimes overlap with criminal law.  "Hand over your wallet or I will kill you," is speech.  It is also robbery.

On college campuses today, the principal threat to freedom of speech comes from the political left.  The disgraceful conduct of officials at Marquette University in the case of Professor John McAdams is described in this editorial at the WSJ.

But not everyone in academia has lost their minds.  The Standing Committee on Open Expression at Emory University has this thoughtful opinion on some recent incidents there.

Thanks for the tip to Eugene Volokh, who notes his brother is on the committee.
In some corners of the Bizarro World of left-wing academia, freedom of speech and freedom of the press are limited to expression of Politically Correct ideas.  What do you call it when a Politically Incorrect student journalist tries to cover a protest, and a professor of communications, no less, calls for "some muscle" to forcibly remove him?  The City of Columbia prosecutor calls it assault in the third degree.

Erik Wemple, media blogger for the WaPo, reports:

Melissa Click, an assistant professor of communication at the University of Missouri, has been charged with third-degree assault by the city of Columbia prosecutor's office, an assistant at that office confirmed today to the Erik Wemple Blog. The arrest comes months after Click was captured on video asking for "some muscle" to counter a student journalist at a November protest at the university. She also pushed the student journalist's camera.

The ACLU, Protecting Your Rights.

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Unless you happen to support Donald Trump, in which case you should get shot.

And no, the ACLU itself did not make this statement, but a board member of its Colorado chapter did.  He since resigned and, surprise of surprises, is unavailable for comment.

Here is the story.
A neighbor of the Jihadist killers in San Bernardino noticed that something suspicious was going on next door, but said nothing about it out of fear of being labelled a "racist."  Here's the story:

Neighbors of San Bernardino shooter Syed Rizwan Farook told ABC Wednesday that they noticed "suspicious activity" at Farook's home recently, but did not report it for fear of being called racist....

Aaron Elswick -- a neighbor of Farook's mother in Redland -- said that another neighbor told him "they had I guess been receiving packages -- quite a few packages within a short amount of time, and they were actually doing a lot of work out in the garage."

"She was kind of suspicious and wanted to report it," Elswick explained, "but she said she didn't want to profile."

When the authorities finally searched the house, too late for the 14 murder victims, they found an arsenal of automatic weapons and what amounted to a bomb factory.

Unfortunately, it turns out that Mr. Elswick has more to fear than merely being branded a racist.  As noted, he might realistically have feared an investigation by Attorney General Lynch.

President Obama says he abhors "gun violence."  Having helped mold a culture in which people are cowed from reporting the possibility that Middle Eastern neighbors could be stockpiling AK-47's, my guess is that his abhoring has just begun. But don't count on his asking Ms. Lynch to change her watch-your-mouth priorities.

P.S.  Liberals would often tell us that, if we start to curtail our freedoms out of fear, the terrorists will have won. This turns out to be true, just not in the way they wanted us to believe.

Attorney General to Free Speech: Drop Dead

Attorney General Loretta Lynch doesn't want you saying offensive stuff about Islam or Muslims.  And if you don't wise up, she's prepared to do something about it.

Hence this story from ABC News:

"Obviously this is a country that is based on free speech," Lynch told the audience at the Muslim Advocates dinner in Arlington, VA. "But when that edges towards violence...we will take action."

I don't know exactly what "edges towards violence" means, and I think there used to be this thing called the "void-for-vagueness" doctrine circumscribing the actions of prosecutors.  But Ms. Lynch is only Attorney General, so I can't expect her to know everything. 

Still, I want to take this opportunity to test the new limits (or non-limits) on prosecution of speech by saying some things that could quite plausibly be viewed as "edging toward violence."  DOJ, I hope you're listening.

DoJ Gives Lois Lerner a Free Pass

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Sari Horwitz reports for the WaPo:

No criminal charges will be filed in the two-year investigation into whether any IRS officials, including Lois Lerner, committed crimes in connection with the handling of tax-exemption applications by conservative groups, the Justice Department announced Friday.
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Rep. Darrell Issa (R-Calif.) criticized the Justice Dept.'s decision not to bring charges as "giving Lois Lerner a free pass" and called it "a low point of accountability in an Administration that is better known for punishing whistleblowers than the abuse and misconduct they expose."

"After stating that their investigation confirms that Tea Party and conservative groups were improperly targeted, they dismiss it merely as a byproduct of gross mismanagement and incompetence - ignoring volumes of evidence in the public record and efforts to obstruct legitimate inquires," Issa said in a statement.

On Trial for Speech in France

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The Europeans love to lecture us for the supposed human-rights violation of punishing murderers sufficiently for the crimes they have committed, but a trial under way in France threatens one of the most fundamental of genuine human rights, freedom of speech.

Marine Le Pen is on trial for making a speech.  What did she say?  Henry Samuel has this article in the London Telegraph.  In 2010, Ms. Le Pen had this to say about mass prayer sessions being held by Muslims in the streets at the time:

"I'm sorry, but for those who really like to talk about the Second World War, if we're talking about occupation, we could talk about that (street prayers), because that is clearly an occupation of the territory," she said during the meeting.

"It is an occupation of sections of the territory, of neighbourhoods in which religious law applies, it is an occupation. There are no tanks, there are no soldiers, but it is an occupation anyhow, and it weighs on people."
Poorly chosen words?  Sure.  A crime?  Not in any country that understands what liberty is all about.

Separation of Church and State, Then and Now

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There was a point in our history when it was accepted that there is, and ought to be, a pretty clearly defined separation between church and state.  The Framers thought one Church of England was enough.  Almost all of them were Christian, but did not want religion, theirs or anyone else's, thrust upon others.

Liberals were avid fans of this view of things  --  until they found out that the opposite view could advance their agenda.

My, how times do change.
Is it a crime for a governor to threaten to veto a funding bill because he does not believe the head of the office being funded can be trusted to use the money appropriately?  Of course not.  We elect governors and other officials to make such judgments.

Yesterday, the Texas Third Court of Appeals threw out one of the charges brought against former Governor Rick Perry.  This WSJ editorial summarizes the case:

A special prosecutor in notorious Travis County essentially charged Mr. Perry for exercising his constitutional right to oppose and veto an act of the legislature. Mr. Perry threatened to veto a funding bill for the Travis County District Attorney's Public Integrity Unit unless D.A. Rosemary Lehmberg resigned. She had been arrested and pleaded guilty to drunk driving, but she refused to resign and Mr. Perry followed through with the veto. The charges boil down to criminalizing routine political debate and controversies.
The procedural mechanism invoked by Perry is a pretrial writ of habeas corpus.  Under Texas case law, this procedure can only be used for facial challenges to statutes, not "as applied" challenges.  The Court of Appeal held that the Coercion of Public Servant statute was unconstitutional on its face.  It regulates speech, and its prohibition of threats is not limited to "true threats" within the meaning of the U.S. Supreme Court cases on that point.

Perry's challenge to the charge of Abuse of Official Capacity is not cognizable in this proceeding, so that one will have to be thrown out at some point down the line.

Elonis Teleforum Podcast

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The Federalist Society Teleforum on the Facebook threats case, Elonis v. United States, previously noted here, is now available as a podcast.

The speakers are John Elwood, who argued the case for Elonis in the Supreme Court, and CJLF Legal Director Kent Scheidegger, who wrote an amicus brief supporting the government.

Teleforum on Elonis

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The Federalist Society has a teleforum today on Elonis v. United States:


On Monday, June 1, the U.S. Supreme Court overturned the conviction of Anthony Douglas Elonis, who was prosecuted under a 1939 law prohibiting the communication of threats for allegedly threatening his estranged wife via Facebook. Has the Supreme Court clarified the legal status of violent speech on the internet, or merely added to the confusion? Our experts will discuss the opinion and its implications.

  • John Elwood, Partner, Vinson & Elkins LLP
  • Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

Call begins at 3:00 p.m. Eastern Time.

That's noon here on the Left Coast.

John argued the case for Elonis in the Supreme Court.  I wrote an amicus brief supporting the government.

The call-in number is 888-752-3232.  No other code is required.  We should have time for questions.  If you miss the live call but still want to listen, I expect the FedSoc will post it as a podcast in a few days.
Peter Hall of the Allentown Morning Call has this story on the Elonis case.  The story includes this nugget:

The U.S. Attorney's Office in Philadelphia was reviewing the decision and considering its options, including a "likely retrial" for Elonis, First Assistant U.S. Attorney Louis Lappen said Monday in a statement.
And this one:

Elonis served 44 months in federal custody from his arrest in 2010 until his release in February 2014. He is again behind bars after being charged by Freemansburg police in April with assault and harassment for allegedly throwing a metal pot at his girlfriend's mother.
Even though he has already done the time, it is important that the conviction remain on this sleazoid's record for the purpose of recidivist sentencing.

Why Did Elonis Take Six Months?

Elonis v. United States, the subject of two earlier posts today, was argued December 1, 2014, and decided today, exactly six months later.  The actual decision is only that the "reasonable person" test for what is a threat, in use in all but two of the federal circuits, is insufficient as a matter of statutory interpretation.  The actual test is undecided.  The requirements of the First Amendment in this area are undecided.

And this took you six months to write, Mr. Chief Justice?

No, of course it didn't.  The Court is famously secretive about its internal deliberations, but I just have to believe that something far more significant had been the subject of much debate, but the author of that broader opinion could not put together a majority for it.  So, perhaps the decision was that a narrow but controlling opinion that does not settle enough is better than a fractured multi-opinion decision that leaves everyone scratching their heads and perhaps settles nothing at all.

I don't think it was that hard a case.  The widely accepted "default" rule of interpretation from the Model Penal Code* is that when a criminal statute has no express mental element, then either purpose, knowledge, or recklessness will do.  Given that the Court has resolved long ago that recklessness is sufficient for First Amendment purposes, even in criminal cases (Garrison v. Louisiana (1964), cited in my brief and Justice Alito's opinion), the doctrine of constitutional avoidance provides no basis for deviating from the standard rule.

If the Court really feels it needs more briefing on this point, it should grant rehearing (whether the Government asks it to or not), take more briefing, and schedule reargument for next October.

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