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Trump faces two lawsuits for First Amendment violations – July 2017, October 2018

New York

In July 2017, President Trump was sued by several users he had blocked on Twitter, who claimed their exclusion from the public forum constituted a First Amendment violation. Then, in October 2018, he was sued again, by a group claiming he had used governmental regulatory mechanisms to threaten media outlets, once more violating the First Amendment.

Key Players

President Donald Trump is known for his prolific Twitter use, which has led to legal troubles with a number of groups.

The Knight FIrst Amendment Institute was established at Columbia University in 2016 and seeks to defend Free Speech and freedom of the press. The institute served as legal counsel for the seven people who sued Trump for blocking them on Twitter.

PEN America is an organization that represents writers and other figures in the literary community, and also defends First Amendment values.

Further Details

Before filing the first lawsuit, the plaintiffs, including a comedy writer and a journalist for The Daily Kos, wrote in June 2017 to the White House requesting they be unblocked from access to Trump’s Twitter account. When their requests were ignored, they filed the legal action, which listed both Trump and Dan Scavino, the White House’s social media director, along with other high-ranking administration officials, as defendants.

The Knight First Amendment Institute argued that Trump’s Twitter feed constituted an official government tool, a characterization that the Department of Justice pushed back on. The institute added that the account is a public forum from which the plaintiffs had been purposefully excluded. The Twitter account in question, @realDonaldTrump, was established by Trump in 2009 and has since garnered 48 million followers; @POTUS, the account that passes from one president to another, has about 22 million followers, according to the Times.

The original case was heard in a Manhattan federal court, presided over by Judge Naomi Reice Buchwald. In a March 2018 hearing, Buchwald questioned both sides rigorously, according to the Times, at one point suggesting the president “mute” followers rather than “block” them. Muting critics would conceal their tweets from Trump, but critics would still be able to see the president’s tweets, which would not be possible once they were blocked from Trump’s account.

In October 2018, PEN America (PEN) also filed a suit against Trump. PEN argued that he had demonstrated a pattern of behavior that seeks to interfere with the free press, separate from his rhetorical attacks on media outlets.

PEN cited a number of troublesome incidents, Fortune reported, including a demand that the U.S. Postal Service increase Amazon’s delivery rates after negative coverage of him was published in The Washington Post, a publication owned by Amazon founder Jeff Bezos; a Justice Department lawsuit to prevent the merger between AT&T and Time Warner, the parent company of CNN, which Trump frequently derides; and threats to challenge the broadcast licenses of TV stations owned by NBC.or carrying its programs.

Fortune suggested that PEN may struggle to establish standing in court to file the lawsuit, as it does not directly represent any of the affected organizations, though some of its members work for these groups.

Outcome

Manhattan federal court rules Trump cannot block Twitter users; administration appeals

In May 2018, Buchwald ruled that the president’s @realDonaldTrump Twitter account did in fact, among others, violated the First Amendment.

“The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the president’s personal First Amendment interests,” Buchwald wrote in the ruling.

Jameel Jaffer, executive director of the Knight First Amendment Institute, suggested the ruling would have vital implications beyond the case of Trump’s feed, the Times reported. “This ruling should put them on notice, and if they censor critics from social media accounts used for official purposes, they run the risk that someone will sue them and win,” he said.

A spokesperson for the Justice Department said at the time that it “respectfully disagree(s) with the court’s decision” and was considering its next steps.

Although Buchwald did not issue an injunction formally ordering the White House to unblock the users, the administration did so in June 2018, according to The New York Times.

“The decision to unblock the plaintiffs from interacting with Mr. Trump’s account was a gesture of constitutional modesty by the Trump administration at a time when he and his lawyers have been making increasingly aggressive assertions of executive powers,” the Times wrote.

At the same time it unblocked the users, however, the White House appealed the federal court’s ruling to the Second Circuit Court of Appeals in New York. The suit brought by PEN is pending.

External References

Trump’s Blocking of Twitter Users Is Unconstitutional, Judge Says, New York Times

White House Unblocks Twitter Users Who Sued Trump, but Appeals Ruling, New York Times

Judge Floats Idea to Settle @realDonaldTrump Twitter Blocking Case, New York Times

PEN America Sues Trump to Stop Him From Violating First Amendment, Fortune

Knight First Amendment Institute at Columbia University

Prepared by Maya Gandhi ’20

Uploaded December 6, 2018

 

Free Speech in Civil Society graphic

White House suspends CNN reporter’s press pass, leading to lawsuit – November 2018

Washington, D.C.

In November 2018, CNN’s Chief White House Correspondent had his White House press pass suspended after a contentious encounter with President Donald Trump. CNN sued the White House, and won a temporary restoration of the press pass before getting it back permanently, though not without added conditions.

Key Players

Jim Acosta is CNN’s chief White House correspondent. Acosta had been a target of criticism from the president even before his temporary suspension. Trump has repeatedly accused CNN and Acosta of reporting misinformation, or “fake news.”

Donald Trump is the 45th president of the United States. He has been criticized for, among other things, his hostile attitude toward the media and his denunciation of journalists as “enemies of the people.”

Judge Timothy J. Kelly, who was appointed by Trump to sit on the U.S. District Court for Washington, D.C., ruled against the president in the initial stages of the case.

Further Details

During a November 7, 2018, White House news conference, Acosta pushed back on Trump’s description of a caravan of migrants heading toward the United States, after fleeing violence in Central America, as an “invasion.”

Trump rejected Acosta’s characterization of these comments as anti-immigrant and sought repeatedly to cut him off by calling on other reporters. But Acosta persisted, and attempted to ask a question about the ongoing investigation into Trump’s ties with Russia.

At this point, a White House intern stepped forward to take the microphone from Acosta, who refused to surrender it despite the intern’s best efforts. Trump repeatedly told Acosta to “put down the mic” during the physical struggle, but it was not until Trump began railing against CNN and calling Acosta a “a rude, terrible person” that the reporter finally relented.

Although critics cited the president’s behavior as an example of his antipathy toward the press, the administration framed Acosta’s actions as insubordinate and disrespectful.

Hours later, Press Secretary Sarah Sanders announced that the White House would be suspending Acosta’s “hard pass,” which is the press credential that gives him access to the executive mansion. Sanders said the White House “would never tolerate a reporter placing his hands on a young woman just trying to do her job as a White House intern” and called the incident “absolutely unacceptable.”

The revocation of Acosta’s press credentials only exacerbated the public backlash from Free Speech advocates, including the White House Correspondents’ Association (WHCA).

The association wrote in a statement that it “strongly objects to the Trump Administration’s decision to use US Secret Service security credentials as a tool to punish a reporter with whom it has a difficult relationship” and called the actions “unacceptable.”

A day after revoking Acosta’s press pass, Sanders shared on Twitter a doctored video of the incident, which appeared to show Acosta being physically aggressive toward the intern, according to the Washington Post.

Outcome

After CNN sues White House, judge temporarily restores press pass

On Nov. 13, CNN sued the Trump administration, seeking the restoration of Acosta’s press pass. The lawsuit alleged violations of the First Amendment and the Fifth Amendment, which guarantees due process. It requested an immediate order reinstating Acosta’s credentials. To the surprise of many, the suit was joined by Fox News, which is strongly supportive of the president.

On Nov. 16, Judge Kelly granted CNN’s request for a temporary restoration of Acosta’s press credentials, allowing him back into the White House. Though the ruling represented a win for CNN, the broader issue of access will be settled in future cases, according to the New York Times.

White House restores press pass, issues strict guidelines for reporters

On Nov. 19, the White House announced it would formally restore Acosta’s press pass, leading CNN to drop its suit.

However, along with returning Acosta’s pass, the administration issued new rules regulating reporters at the White House, according to the New York Times. They restrict reporters to only one question at a time and will permit follow-up questions only at the discretion of the president or an administration official.

“Failure to abide,” the administration warned, “may result in suspension or revocation of the journalist’s hard pass.”

The WHCA said it had not been consulted prior to the ruling’s release. After news of it broke, the American Civil Liberties Union criticized the association, saying it had allowed the White House to “avoid real scrutiny.”

External References

Trump Lashes Out During Combative Press Conference, NPR

White House Revokes Press Pass Of CNN’s Jim Acosta, NPR

White House shares doctored video to support punishment of journalist Jim Acosta, Washington Post

A short history of Donald Trump’s clashes with CNN’s Jim Acosta – video, The Guardian

CNN sues White House to regain access for reporter Jim Acosta, Washington Post

Trump speaks on Jim Acosta, and also says he has answered written questions from special counsel, CBS News

CNN’s Jim Acosta Returns to the White House After Judge’s Ruling, New York Times

CNN’s Jim Acosta Has Press Pass Restored by White House, New York Times

Prepared by Maya Gandhi ’20

Uploaded December 4, 2018

 

Free Speech in Civil Society graphic

Judge halts Cincinnati billboard tax after pushback from advertising agencies – October 2018

Cincinnati, OH

After Cincinnati passed a “billboard tax” in June 2018, advertising agencies sued the Ohio city for infringing on their First Amendment rights.

Key Players

Norton Outdoor Advertising is a digital advertising agency based in Cincinnati that specializes in billboards and other large outdoor posters. Norton was the initial group to sue the city for attempting to implement a billboard tax. Lamar Advertising, which also specializes in outdoor digital marketing, is the other agency that sued Cincinnati after the billboard tax was approved. Norton and Lamar are two of largest advertising companies in the city.

Cincinnati is a city of just over 300,000 in southwestern Ohio. The Cincinnati City Council implements ordinances and tax measures, as well as allocating appropriations.

Further Details

At a June 2018 meeting, the City Council enacted a measure that would have increased the cost of billboard advertising within city limits. The measure, known as the “billboard tax” by its detractors, would have added approximately $700,000 of revenue to the city’s budget, which the council was attempting to balance against a $32 million deficit. Altogether, the proposed policy sought to:

  • Increase the fee to obtain outdoor advertising from $70 to $280;
  • Require a certificate of compliance that costs $115.44; and
  • Require annual permits for billboards, rather than requiring them every other year.

Following the measure’s passage, both Norton and Lamar filed lawsuits against the city of Cincinnati. Among other things, the companies and other critics argued that the financial measures unlawfully constrained the exercise of First Amendment rights, including the right to Free Speech.

Cincinnati councilman David Mann said in an interview that the billboard tax was justified because other cities and towns throughout Ohio already have similar policies in place. He added that “The city solicitor said it’s a lawful tax and we implemented it. And those that operate billboards would prefer not to have it.”

Outcome

Judge grants preliminary injunction

On July 30, 2018, Judge Curt Hartman of the Hamilton County Common Pleas Court temporarily stopped the measure from taking effect. Although he only ruled on the Norton case, his decision extended to the suit brought by Lamar Advertising, as well.

On October 17, 2018, Judge Hartman granted a full preliminary injunction to the advertising agencies, temporarily halting the “billboard tax” from being implemented as the issue goes through the judicial system. Hartman wrote, “the court finds that a substantial showing has been made that [the charges are] a direct tax on the means of engaging in speech…The tax is effectively no different than a tax specifically targeted to being imposed on newsprint or a printing press used to produce newspapers. As such, the court finds a sufficient First Amendment interest has been implicated and likely violated.”

Acting City Manager Patrick Duhaney estimated that, without the revenue from the billboard tax, the city would need to find a way to address a budget shortfall of $837,000.

External References

Judge halts Cincinnati’s billboard tax, says funding ‘pet projects’ no reason to raise taxes, Cincinnati.com

Judge may decide Friday to halt city billboard tax, leaving $837k hole in Cincinnati’s budget, WCPO Cincinnati

Ohio: Judge suspends Cincinnati billboard “tax”, Business Advocate

Cincinnati City Council website

Prepared by Emma Vahey ‘20

Uploaded to Tracker: November 26, 2018

 

Free Speech in Civil Society graphic

ACLU wins suit against Memphis to halt surveillance of activists – October 2018

Memphis, TN

In 2017, the American Civil Liberties Union of Tennessee (ACLU-TN) sued the city of Memphis, alleging that its police department (MPD) had conducted intensive surveillance of local activists, including several members of the Black Lives Matter (BLM) movement, who had participated in protests and demonstrations. ACLU-TN argued that such intelligence gathering on individuals’ exercise of their First Amendment rights threatened their Free Speech. U.S. District Court Judge Jon McCalla, who was nominated to the bench by Republican President George H. W. Bush in 1991, ruled in favor of ACLU-TN on October 26, 2018, citing several clear examples of what he regarded as MPD’s improper surveillance of activists.

Further Details

Memphis law enforcement has long been accused of using surveillance of activists as a tool of intimidation. Throughout the civil rights movement in the 1960’s and 1970’s, MPD allegedly gathered intelligence on protesters and activists and used that information to dissuade them from their advocacy, according to ACLU-TN. These methods effectively chilled activists’ Free Speech through fear.

In 1976, ACLU-TN had sued the city of Memphis, leading to a 1978 court order that barred the use of domestic intelligence to monitor individuals’ exercise of their First Amendment rights, a landmark decision at the time.

Four decades later, in 2017, the ACLU-TN brought a federal lawsuit claiming that MPD had resumed conducting surveillance against activists, including several in Black Lives Matter. The suit arose after documents were published revealing the city’s list of people who required a police escort at City Hall — many of whom had no criminal record, but had participated in demonstrations in the past, according to ACLU-TN. The lawsuit unearthed a plethora of information about the city’s habit of surveilling activists, the very practice that had been banned by the 1978 ruling.

Documents released in July 2018 showed how the MPD’s Office of Homeland Security used social media to track BLM activists. In one example, MPD developed a fake Facebook profile to befriend activists on the social media platform — allowing the police to gather both public and private posts from them, according to The Appeal, a nonprofit outlet that focuses on criminal justice.

The case also uncovered a PowerPoint presentation identifying the BLM activists who had gathered for a vigil to honor a Memphis teenager shot by the police: The presentation, which was circulated among MPD command staff, included the names and pictures of the activists and details of their arrests at the vigil. It also linked the activists to radical leftist groups, according to The Appeal. In a deposition, the officer who compiled the presentation said he also tracked the activists’ associations and contacts, including at least one activist’s spouse, The Appeal reported.

“The public has a right to know about government practices,” ACLU-TN Executive Director Hedy Weinberg told The Appeal. MPD Director of Police Services Michael W. Rallings maintained the department’s innocence, saying that his “officers have never interfered with anyone lawfully exercising their First Amendment rights.”

In an August 2018 hearing, the city argued that the 1978 decree needed updating to reflect technological advances, according to WREG, a local CBS affiliate.

Outcome

ACLU of Tennessee wins suit against Memphis Police Department

Early hearings for the case established that MPD’s actions constituted “political intelligence,” thus violating the 1978 ruling that surveillance could curtail individuals’ First Amendment rights.

McCalla said that ACLU-TN presented “clear and convincing” evidence that MPD had violated the 1978 order barring political intelligence, and ordered the city to revise its regulations and enhance its training for officers, according to the Los Angeles Times. ACLU-TN reported that the court imposed sanctions to ensure MPD compliance with the 1978 decree, including revising their policy on political intelligence, training officers, and establishing lists and written guidelines for social media searches. The court also appointed an independent monitor to supervise the implementation of these sanctions.

External References

FBI tracked an activist involved with Black Lives Matter as they travelled across the U.S., documents show, The Intercept

Memphis police collected Black Lives Matter activists’ private Facebook posts, The Appeal

ACLU, City of Memphis face off in court over surveillance concerns, WREG Memphis

Blanchard et al. v. City of Memphis, ACLU Tennessee

ACLU Wins Illegal Surveillance Ruling Against MPD, Memphis Flyer

Federal judge orders Memphis police to limit surveillance of activists, Los Angeles Times

Prepared by Maya Gandhi ’20

Uploaded November 26, 2018

 

Free Speech in Civil Society graphic

California man sues town following arrest at public meeting – October 2018

Chico, CA

During the public-comment phase of a Chico City Council meeting, a local resident approached the podium and began speaking about a member of the local community. He was arrested and removed from the meeting.

Key Players

Mark Herrera is a resident of Chico, a town of nearly 94,000 in northern California. Herrera is a former park commissioner for the city and a one-time candidate for city council.

The Chico City Council is an elected body, with seven nonpartisan members. Sean Morgan is mayor of Chico, and presides over council meetings.

Chico First is a community group that advocates for “public safety.” According to its Facebook page, some of its specific projects are related to “shopping cart” and “locking dumpster” initiatives. It hopes to address issues presented by homelessness in the community.

Further Details

On May 15, 2018, Mark Herrera attended a Chico City Council meeting. During the public-comment period, he rose to speak about Chico First, which was represented at the meeting by some of its members.

According to The Chico Enterprise-Record, Herrera at one point referred to the leader of the Chico First group in a way that, according to mayor Sean Morgan, bordered on a personal attack. Herrera later stated that his comment was intended to be satirical, and that he was merely poking fun at the group.

Following further comments by Herrera, Morgan ordered that he be detained, and two Chico police officers approached Herrera to escort him out of the meeting. Herrera ignored them, however, and was ultimately arrested for “wilfully disturbing a public meeting.” At the police station, he was found to have a high blood alcohol level on a breathalyzer test. Nevertheless, the Butte County District Attorney’s Office chose not to press charges

Outcome

Herrera sues city of Chico

Herrera filed a civil complaint in federal court on October 11, 2018. He claimed his First and Fourth Amendment rights were violated during this incident. He named Morgan, the city of Chico, the Chico Police Department, and several individual police officers as defendants in the case. Herrera claims that Morgan violated his rights to freedom of expression and to petition the government when Morgan “unlawfully imposed a content-based restriction to silence [him] and preclude him from further speaking.” The city of Chico has declined to comment on active litigation as of October 20, 2018.

City denies having violated Herrera’s rights

Responding to Herrera’s lawsuit, the city of Chico said police had probable and reasonable cause to detain and arrest him, according to court documents filed on November 4, 2018. The city also denied allegations it violated Herrera’s First and Fourth Amendment rights and demanded a jury trial.

 

External References

Chico man sues city over arrest during City Council meeting, The Chico Enterprise-Record

Chico police detained man for disrupting city council meeting, KRCR News Channel

Chico man sues city, mayor, Chico News & Review

Chico First Facebook page

Prepared by Emma Vahey ‘20

Uploaded to Tracker: November 14, 2018

 

Free Speech in Civil Society graphic

Trump lawyers defend release of stolen emails on First Amendment grounds – October 2018

Richmond, VA

Lawyers representing President Trump’s 2016 presidential campaign filed a motion to dismiss in Roy Cockrum et al. vs. Donald J Trump for President Inc. The plaintiffs in the case allege that Trump campaign operatives engaged in conspiracy by violating privacy rights and subjecting them to intentional emotional distress by helping publish and disseminate emails stolen during a hack of the Democratic National Committee. Lawyers representing the Trump campaign offered the First Amendment as a defense of the operatives’ actions, arguing that the information contained in the emails, being of national interest, outweighed any privacy claims.

Key Players

Donald J. Trump for President Inc. was the campaign organization created to elect Donald Trump during the 2016 U.S. presidential election. Operatives for the campaign allegedly conspired with Wikileaks and Russian hackers to release private emails that had been stolen when the hackers infiltrated the Democratic National Committee’s computer network.

The Democratic National Committee (DNC) is the national political organisation for the Democratic party. Workers for the DNC allege that their privacy was violated and they were intentionally subjected to emotional distress when private emails were released on the Wikileaks platform leading up to the 2016 elections.

Wikileaks is an online news source that publishes secret information and leaks provided by anonymous sources. Russian hackers sent emails they had stolen to Wikileaks for publication before the 2016 elections.

Further Details

According to Robert Mueller’s federal investigation, twelve Russian operatives hacked into the DNC computer network in 2016 and stole private emails from its employees. Plaintiffs in this case allege that the subsequent release of the emails violated the privacy of several DNC employees and subjected them to intentional emotional distress. Lawyers representing Trump’s campaign committee, however, argue that campaign workers simply assisted with the dissemination of the stolen information, which they argue is protected by the First Amendment.

In their motion to dismiss the lawsuit, Trump’s lawyers cite the “Bartnicki test” from Bartnicki v. Vopper of 2001, which holds that the First Amendment protects the disclosure of stolen information under two conditions: first, that the disseminator was not involved in the theft of the information, and second, that the information is relevant to “a matter of public concern.” Regarding the plaintiff’s allegations, the motion says, “at a minimum, both violate the First Amendment as applied to the kind of speech at issue here—truthful speech in a campaign.”

Trump’s lawyers argue that they did not assist with stealing the emails, only with their dissemination, according to the findings of Robert Mueller’s investigation. And they say the content of the emails was of public interest, so that releasing them was protected by the First Amendment. “The First Amendment ‘has its fullest and most urgent application to speech uttered during the campaign for political office,’” the lawyers argued, quoting from Eu v. San Francisco County Democratic Cent. Comm. of 1989. Through the Bartnicki test, the Trump campaign contended that to punish the dissemination of the stolen emails would be a violation of the First Amendment.

Outcome

A specific court date has not been set for a hearing on the motion in US District Court for the Eastern District of Virginia. The case was previously dismissed by a federal court in Washington, DC, for lack of jurisdiction.

External References

Opening brief in support of defendant Donald J. Trump for President, Inc.’s Motion to Dismiss.

The Trump Campaign says exploiting hacked emails is free speech.

District of Columbia Court decision to dismiss the case for lack of jurisdiction.

Eastern District of Virginia Court Schedules – Richmond Division.

Prepared by Gustav Honl-Stuenkel ‘20

Date uploaded to tracker: November 8, 2018

Free Speech in Civil Society graphic

National Park Service seeks to restrict White House protests – August 2018

Washington, D.C.

After consistent protest outside the White House during Donald Trump’s presidency, the National Park Service proposed limits on demonstrations there and in other iconic Washington venues, including the National Mall. Critics, such as the American Civil Liberties Union, pushed back, arguing that such restrictions are unconstitutional.

Further Details

Protests outside the White House have been frequent during Trump’s presidency, and grew even more common after his July 2018 summit in Helsinki, Finland, with Russian leader Vladimir Putin. Protesters occupied the sidewalks outside the White House for at least three weeks after the summit, according to The Washington Post, and used the opportunity to attempt to hold Trump accountable on a range of issues.

In August 2018, the National Park Service (NPS) — housed in the Department of the Interior — proposed to limit the number of protests on the north sidewalk in front of the White House, the National Mall, Lafayette Square, and the sidewalk in front of the Trump International Hotel, among other places, according to Fortune.

The proposal would close 80 percent of the sidewalks around the White House to demonstrations, according to The Guardian, limiting them to a five-foot-wide section on Pennsylvania Avenue. The proposed policy would also open the door to requiring protestors to pay “event management” fees to cover the cost of barriers, cleanup, and necessary security personnel.

The aim, in part, is also to “preserve an atmosphere of contemplation” around national memorials, according to Fortune, as well as to protect the grass on the Mall. Additionally, the proposed policy would allow the NPS greater time to work out logistics before granting event permits, Fortune reported, which would limit spontaneous demonstrations.

The proposed limits on demonstration come amid Trump’s historical antipathy to protest. In the past, Trump has suggested that those who protest against him are paid by prominent Democratic Party donors, as he wrote in a Oct. 5 tweet during the confirmation hearings of Justice Brett Kavanaugh:

“The very rude elevator screamers are paid professionals only looking to make Senators look bad,” Trump wrote. “Don’t fall for it! Also, look at all of the professionally made identical signs. Paid for by Soros and others” (an allusion to financier George Soros, the object of many conspiracy theories circulating on social media about the origins of anti-Trump protests).

Trump has also said in the past that protesting should be illegal, according to the Washington Post.

“I think it’s embarrassing for the country to allow protesters,” Trump said in a Sept. 4 Oval Office interview. “You don’t even know what side the protesters are on.”

Outcome

Proposal to limit protest faces backlash

The NPS faced backlash on the proposed policy, particularly from critics who saw it as an infringement on Free Speech. The American Civil Liberties Union (ACLU) pointed out that such restrictions have the ability to hamper demonstrations by raising costs.

“Managing public lands for the benefit of the American people” — whether demonstrators or tourists — “is what Congress funds the National Park Service to do,” said Arthur Spitzer, legal director of the ACLU of the District of Columbia, in a post on the ACLU’s blog. “While the Park Service may be strapped for funds, it cannot balance its budget on the backs of people seeking to exercise their constitutional rights.”

The ACLU also cited the numerous historic protests that have occurred in these spaces. New limitations “could make mass protests like Martin Luther King Jr’s historic 1963 March on Washington and its ‘I have a dream’ speech too expensive to happen,” Spitzer wrote.

NPS hosted a 60-day public comment period, which ran until Oct. 15 and drew more than 41,000 responses, according to the Washington Post. A spokesman for NPS said it could take several months to finish a report on public sentiment and reaction. The ACLU submitted a formal complaint as well, arguing that the proposal violates the First Amendment.

“We’re just looking to have a genuine conversation with the public about updating this comprehensive plan,” NPS spokesperson Brent Everitt said, according to the Post.

Constitutional experts have said the proposed policy would likely not be upheld if challenged in court, because of its potentially chilling effect on people’s exercise of their First Amendment rights, the Post reported.

“President Trump might not like having protesters on his doorstep, but the First Amendment guarantees their right to be there,” Spitzer wrote.

External References

Mixing protest and party, nightly ‘Kremlin Annex’ rally outside the White House reaches its third week, The Washington Post

The Trump Administration’s Latest Idea to Hit Back at Its Opponents: Charge Them for Protesting, Fortune

Pressure builds as National Park Service considers proposals to change how protests are done in D.C., The Washington Post

Trump administration plans crackdown on protests outside White House, The Guardian

Trump Administration Seeks to Stifle Protests Near White House and on National Mall, ACLU

No, George Soros isn’t paying Kavanaugh protesters, Washington Post

Trump suggests that protesting should be illegal, Washington Post

Prepared by Maya Gandhi ’20

Uploaded November 4, 2018

 

Free Speech in Civil Society graphic

Court rules in favor of Oregon police officer prevented from commenting on racial profiling – September 2018

Springfield, OR

In February 2015, Thelma Barone, then multicultural liaison for the police department of Springfield, OR, made a public comment about racial profiling within the police force. The department suspended Barone before offering her a “last-chance agreement,” whereby she could return to the force if she promised not to say anything negative about the police or the city in writing or speech. Barone refused this offer, and a subsequent one, and, as a consequence, was fired. She then filed a federal lawsuit, contending that she had been the victim of retaliation for speaking out, but lost in the trial court and appealed that decision. In September 2018, the 9th U.S. Circuit Court of Appeals determined that the restrictions against Barone had violated her Free Speech and sent the case back to a federal judge in Eugene, OR .

Key Players

Thelma Barone was the multicultural liaison for the Springfield Police Department for 13 years; as such, she served as the primary bridge between the police and Springfield’s Latino community. She worked to establish relationships between the police department and communities of color. Following public remarks about the police force and subsequent controversy, she was terminated from her position in August 2015.

The Springfield Police Department serves a city of about 60,000 people just outside Eugene, OR. The current Chief of Police is Richard Lewis. In 2015, at the time of the incident, the Chief of Police was Tim Doney.

Further Details

In February 2015, Thelma Barone was a scheduled speaker for an event at the local Springfield City Club. The event’s focus was on police brutality and racial profiling, a salient topic given the anti-police-brutality protests taking place at the time in Ferguson, MO. Barone was asked whether she had heard of increased racial profiling by the police in the Springfield community, and she answered in the affirmative.

A week later, Police Chief Tim Doney placed Barone on administrative leave for the seemingly unrelated reason of “alleged untruthfulness during investigations in previous cases.” An internal investigation determined that she had violated parts of the department’s code of conduct by allowing teenagers to photograph restricted areas during a tour. According to Barone, in July 2015 officials in both the police department and the police union ordered that she sign a “last-chance agreement.” If she refused, she would be fired.

The agreement stipulated that she would not publicly say anything disparaging about Springfield or its police department. Further, it detailed that she would no longer serve as the liaison with the local Latino community. After Barone refused to sign this document, the officials returned with an amended version that would have allowed her to report on and track racial profiling or racial discrimination complaints, but kept her gag order in place.

But Barone rejected that offer as well, and was fired on August 12, 2015, as a result. Without income, Barone ultimately lost her house. Now 61, she says it would be too difficult to return to the force. Instead, she is pursuing a master’s degree in social work. Following her termination in mid-2015, she filed a lawsuit in federal court against the city of Springfield and its police department for allegedly firing her on false pretenses and retaliating against her for speaking publicly against the department.

 

Outcome

Appeals court rules in favor of Barone

In September 2018, The U.S. Court of Appeals for the Ninth Circuit ruled in favor of Barone, overturning a previous ruling against her. The court clarified that although her comments at the public meeting in February 2018 were not protected speech under the First Amendment, the “last-chance agreement” restricted her speech as a private citizen, and therefore was unconstitutional.

External References

Attempt to silence Oregon police officer violated First Amendment, court says, The Oregonian

Court: Attempt to silence officer violated First Amendment, The Associated Press

Thelma Barone v. City of Springfield, Public Document

Free Speech Prevails: Former Springfield police aide wins First Amendment case against Springfield, Eugene Weekly

Federal appeals court reverses decision about fired Springfield police employee, The Bulletin

Prepared by Emma Vahey ‘20

Uploaded to tracker: 10/29/2018

Free Speech in Civil Society graphic

Connecticut mayor orders Libertarian activists removed from public park following solicitation for signatures – April 2018

Meriden, CT

On April 28, 2018, the mayor of a Connecticut town ordered members of the local Libertarian Party and a Libertarian candidate to leave a public park. The group had gathered to collect signatures in order to get their candidate on the statewide ballot for an upcoming election.

Key Players

Kevin Scarpati is the mayor of Meriden, CT, a town with a population of about 61,000 in central Connecticut. He is registered as an unaffiliated voter, although he was formerly registered as a Republican before running for the town’s mayoral office in 2017.

Dan Reale is the Connecticut state chair of the Libertarian Party. He filed a Connecticut Superior Court lawsuit in May 2018 on behalf of the political volunteers in the park on that day in April, naming Kevin Scarpati as the defendant.

The Libertarian Party is an American political movement, citing “minimum government” and “maximum freedom” as two of its most valued tenets. Volunteers for the Connecticut Libertarian Party were in the park on the day in question, stumping on behalf of Libertarian gubernatorial candidate Rod Hanscomb.

Further Details

On April 28, 2018, the annual Meriden Daffodil Festival was held in Hubbard Park, in Meriden, CT. Many community organizations and members attend the event every year. At the 2018 festival, volunteers for Rod Hanscomb for Governor — among them Reale — stood near the entrance, collecting signatures on petitions to add Hanscomb to the ballot. Scarpati happened to walk past the volunteers and, soon after, a police officer asked the them to leave.

Following this incident, Reale filed a lawsuit in Connecticut Superior Court. He claimed his First Amendment rights to free speech and assembly were violated because Scarpati had the volunteers removed from the park out of political motivations. Reale noted that both the local Republican and Democrat parties had a presence at the same festival, but did not face similar actions. He also said he had called the Meriden police department after leaving the park in order to determine what might happen if the volunteers were to return and continue their efforts. “The desk sergeant informed him he would be arrested for ‘first degree’ criminal trespass,” the lawsuit alleged.

Outcome

Case settled out of court

On September 28, 2018, the city of Meriden settled the case with Dan Reale and the Libertarian Party for $37,000. The Libertarian Party, which had joined the case as an additional plaintiff, received $32,000, and $5,000 went to Dan Reale as a private individual.

External References

‘Go After The First Amendment, You’ll Pay The Price’ — $37K To Settle Lawsuit Against Meriden Mayor, Hartford Courant

Legal Mess Endures Months After Meriden Mayor Had Cops Oust Libertarians From Park, Hartford Courant

Libertarian party candidate files suit over alleged incident at Meriden’s Daffodil Festival, Record-Journal

Meriden Office of the Mayor webpage

Prepared by Emma Vahey ‘20

Uploaded to Tracker: October 15, 2018

Free Speech in Civil Society graphic

Satanic statue unveiled at Arkansas capitol to protest Christian monument – August 2018

Little Rock, AR

A satanic statue, sponsored by the Satanic Temple, an atheist group, was unveiled at the Arkansas state capitol building in protest of a monument to the Ten Commandments that had been erected at the site in 2017. This move mirrors a similar case in Oklahoma, where in 2015 the state supreme court ruled the erection of a biblical statue in front of the state capitol unconstitutional.

Key Players

The Satanic Temple is a group made up of atheists, humanists, and Free Speech advocates, according to The Washington Post. Founded in 2012, it currently has 15 chapters in the United States. Despite its name, the association does not require satanic worship, but uses satanic imagery to highlight what it feels are violations of the principle of the constitutional separation of church and state.

The movement gained notoriety in 2013, when it proposed an eight-foot-tall bronze statue of the satanic goat monster, Baphomet, to sit next to a Ten Commandments monument that had been built in front of the Oklahoma State Capitol a year earlier. In July 2015, the Oklahoma Supreme Court ruled that the Ten Commandments statue was illegal and would have to be removed, since it used public lands to support a specific religion.

The Satanic Temple lauded that decision and dropped its plans to install its own statue. But, in doing so, it left its newly created statue of Baphomet without a home. “Arkansas looks rather appealing,” answered Satanic Temple spokesman Doug Menser, when asked by the Post where the statue might end up.

Further Details

In April 2015, the Arkansas state legislature had passed a bill authorizing a privately funded Ten Commandments statue at the steps of the state capitol building in Little Rock. In response, the Satanic Temple made plans to install there the Baphomet statue that had almost found a home in Oklahoma.

A monument to the Ten Commandments was installed on the grounds of the Arkansas State Capitol in June 2017, but was destroyed within 24 hours when a man rammed his car into it. The monument was replaced in April 2018, after private fundraising efforts by Arkansas State Senator Jason Rapert, a Republican who sponsored the original bill to erect the Ten Commandments monument.

The Temple’s plans to install the goat statue were blocked in 2017 by a bill the Arkansas state legislature passed in an emergency session. The bill required all monuments at the capitol building to have legislative sponsorship, according to the Post.

Unable to find a state legislator to sponsor the installation of Baphomet at the state capitol, the Temple launched a crowdfunding campaign to transport it to Little Rock, and raised its $20,000 goal without difficulty, the Post said.

Rapert said he “respects” individuals’ free speech rights under the First Amendment, but that “it will be a very cold day in hell before an offensive statue will be forced upon us to be permanently erected on the grounds of the Arkansas State Capitol,” NPR reports.

Outcome

Baphomet is unveiled at the Arkansas Capitol Building

On Thursday, August 16, 2018, Baphomet was unveiled in a temporary spot at the Arkansas statehouse to 150 cheering participants of a “First Amendment Rally.” Several counter-protesters also gathered at the capitol building, many holding Bible verses or signs that indicated they disapproved of the satanic statue.

Because the statue cannot stay at the capitol, Baphomet’s arrival has become, in effect, a temporary protest of the Ten Commandments monument, rather than a permanent installation. At the end of the protest, the Satanic Temple removed the statue, according to the AP.

The American Civil Liberties Union (ACLU) supports the Satanic Temple in its opposition to the Ten Commandments monument, and is seeking to join a lawsuit by the Arkansas chapter of the ACLU arguing that the biblical statue is discriminatory and unconstitutional, according to NPR.

External References

The Satanic Temple’s giant statue of a goat-headed god is looking for a home, The Washington Post

Why one man keeps ramming his car into Ten Commandments statues on government property, The Washington Post

A satanic idol goes to the Arkansas Capitol building, The Washington Post

Satanic Temple Protests Ten Commandments Monument With Goat-Headed Statue, NPR

Satanic Temple installs goat-headed creature at Arkansas state capitol, AP

Prepared by Maya Gandhi ’20

Uploaded October 8, 2018