Free Speech in Civil Society graphic

DC arts agency issues, then quickly retracts, restriction on artistic expression – November 2018

Washington, DC

After having awarded contracts to various artists in the nation’s capital, the DC Commission on the Arts and Humanities (DCCAH) emailed a final amendment to all contracted artists, requesting they sign onto a provision that would allow their funding to be pulled in case their artwork violated standards of violence, politicization, or obscenity.

Key Players

The DC Commission on the Arts and Humanities provides grants, professional opportunities, education enrichment, and other programs and services to individuals and nonprofit organizations in Washington, DC.

Angie Gates is the DCCAH’s interim executive director. She signed a contract amendment that many artists criticized as infringing upon free expression.

Muriel Bowser is mayor of Washington, DC, a position she has held since 2015. The DCCAH receives its funding from the DC city government, and is ultimately administered by Bowser. Shortly after hearing about the proposed amendment, she had it rescinded and issued a statement in support of artistic expression.

Further Details

On Nov. 5, 2018, DCCAH emailed all grantees that it would be adding an amendment with new stipulations to their awards. According to The Washington Post, the new regulations would require artists to avoid producing artwork that could be viewed as lewd, lascivious, vulgar, and overtly political or violent.

The DC arts community, backed by the National Coalition Against Censorship and the American Civil Liberties Union (ACLU), protested the restriction, prompting DC City Councilmembers to become involved and speak out against the proposed changes.

ACLU lawyer Deepak Gupta explained to the Washington City Paper that the amendment clearly violated the artists’ constitutional rights, because under its terms, the commission would have the sole authority to decide whether artwork should be censored, which could have a chilling effect on artists’ freedom of expression.

Though the amendment was signed by DCCAH’s Interim Executive Director Angie Gates, other members of the commission indicated in an email obtained by the City Paper that “commissioners weren’t made aware of this before it was sent out to the grantees.” The Mayor’s Office was similarly eager to distance itself from the amendment, and immediately moved to rescind it. DCCAH Chief of External Affairs Jeffrey Scott told the City Paper: “The Bowser Administration stands firmly behind our shared DC Values and will always strive to uphold our mission of service to the District and its residents. The [DCCAH] believes deeply in the right to freedom of expression and would never seek to violate that right by censoring the work of any grantee.”

According to the City Paper, some believe the amendment was a reaction to work produced a month earlier by local artist Marta Pérez-Garcia, who received $50,000 from the DCCAH for her installation for the DC Coalition Against Domestic Violence. Her piece, which was displayed in a municipal center, included cloth dolls made by survivors of abuse that were suspended in a manner that upset at least one visitor, because this seemed to depict a lynching.


Following backlash, DC Mayor Bowser rescinds DCCAH contract amendment that would have allowed censorship

Five days after artists were alerted to the new clause in their contracts, Mayor Bowser rescinded the amendment that would have allowed DCCAH to pull funding from projects it deemed “lewd, lascivious, vulgar, overtly political, or excessively violent” or that constituted sexual harassment or were, in any other way, “illegal.” A bill is under review by the DC City Council that would change the role of the commission, turning it into an advisory body rather than an arts funder.

In a statement to the Post, Peter Nesbett, executive director of the Washington Project for the Arts, said, “Now we have to make sure that the amendment is truly rescinded, that artists and organizations that signed it are not bound by its restrictive conditions.”

External References

Mayor Bowser to withdraw censorship amendment from DC arts grant.

After outcry, DC commission backs down on censoring art.

Prepared by Gustav Honl-Stuenkel ‘20

Uploaded to tracker: December 13, 2018

Free Speech in Civil Society graphic

DHS seeks to compile, and subsequently to monitor, a list of journalists, bloggers, and media influencers – April 2018

Washington, DC

On April 3, 2018, the US Department of Homeland Security (DHS) released an advertisement for a contractor to help create a list of more than 290,000 journalists, editors, bloggers, social media influencers, and other media creators around the world. The database would be continuously updated and searchable by beat, location, and alleged political sentiment; it would provide instantaneous translation into English from numerous languages, including Russian and Arabic. Many journalists expressed their outrage on social media, saying that the program contained early indications of totalitarianism.

Key Player

The Department of Homeland Security is a cabinet-level agency of the US government with the stated aim of ensuring “a homeland that is safe, secure, and resilient against terrorism and other hazards.” Among other efforts, it seeks to monitor both traditional and non-traditional news sources for information relevant to its work, and, in so doing, create a list of writers, editors, bloggers, and social media influencers who create this content.

Further Details

The “statement of work” that DHS uploaded to requests “Media Monitoring Services” and outlines six specific tasks to be performed, including “Online and Social Media Monitoring” and “Media Intelligence and Benchmarking Dashboard Platform.”

Many members of the media and other public figures reacted negatively to this solicitation. One wrote on Twitter: “I’ve gotten threats of violence and death from Trump supporters. Am I to be put on the Department of Homeland Security’s list now, too, for having the audacity to criticize @realDonaldTrump in the media and my published work?” Others described the database as an attempt to “dox” them—referring to a method by which the personal information of an individual is revealed on the internet. Some, however, were less worried, including Garrett Graff, a former CNN journalist, who tweeted: “This strikes me as a totally normal and routine thing for DHS to do, and not at all Orwellian.”


American Civil Liberties Union (ACLU) files a FOIA request for documents relating to the statement of work

On April 10, ACLU filed a Freedom of Information Act request with the Department of Homeland Security, seeking to access records regarding the April 3 statement of work, including emails, voicemails, memos, reports, and written or electronic communications. ACLU said it wanted  to “provide the public with information about DHS’s monitoring of news, social media conversations, and journalists.”

Nonprofit group files lawsuit against DHS

On May 30, the Electronic Privacy Information Center, a nonprofit group focused on privacy and civil liberties, filed a federal lawsuit against DHS, claiming the department broke federal law because it did not publish a Privacy Impact Assessment about its plan to create a “media influencer database.”   The complaint also alleged other violations of federal laws and regulations by DHS.

External References

The DHS’s statement of work requesting “Media Monitoring” can be found here, as an archived web page.

Is Homeland Security Working to Compile a Database of Journalists and Bloggers?

Homeland Security to Compile a Database of Journalists, Bloggers and Influencers.

The ACLU’s FOIA request regarding the solicitation.

Prepared by Gustav Honl-Stuenkel ‘20

Uploaded to tracker: December 13, 2018

Free Speech in Civil Society graphic

California town faces accusations of stifling free speech with signage policy – September 2018

Clayton, CA

The city council of Clayton, CA, faced accusations of infringing Free Speech in September 2018 because of its signage policy, which limits residents to having three square feet or less of “temporary noncommercial signs” in their yards. This, in essence, made it illegal for a yard to have more than one average-sized campaign sign.

Key Player

The Clayton City Council governs this small rural town in the East Bay region near San Francisco. It discussed and reiterated its signage policy in May 2017, which effectively limited Clayton residents to one yard sign for every property.

Further Details

On May 16, 2017, the Clayton City Council held a meeting to discuss the town’s signage policy, in response to the US Supreme Court’s decision in Reed vs. Town of Gilbert, Arizona, which held that regulations restricting the size, duration and location of “political” and other signs could be viewed as content-based and thus could violate First Amendment speech protections, the East Bay Times reports. Content-based, in this context, means that a government could impose restrictions based on the message a sign conveys.

Mindy Gentry, Clayton’s community development director, recommended aligning the town’s signage policy with the precedent set by the Supreme Court decision, including allowing “temporary noncommercial signs” no larger than 30 square feet on residential properties.

The town’s municipal code defines a “temporary noncommercial sign” as “any noncommercial temporary sign displaying an ideological, political or other noncommercial message (…) which is designed or intended to be displayed for a limited period of time.” Some city council members objected to the proposed size increase, saying that the original policy was put in place to avoid “sign blight” and to limit the amount of signage that could populate an individual yard.

Councilmember Julie Pierce described it as a “really emotional issue” for residents. Councilmember David Shuey said he agreed the sign area limit should not increase, explaining that “we may be subject to potentially a lawsuit, but frankly, that’s a risk that’s pretty minimal in my view.” Following this, the council sent the ordinance back to the Planning Commission to retain the three-square-foot aggregate limitation.

In September 2018, as campaigns for Clayton City Council heated up, the East Bay Times reported that candidate Brian Buddell accused the sitting councilmembers of violating his First Amendment rights through the policy, as his supporters and those of candidate Jeff Wan had been asked to remove signs supporting the candidates from their yards or face a fine of up to $500.

Since these accusations were made, Clayton City Manager Gary Napper has indicated that he will not enforce the ordinance, which the City Council has indicated it will reconsider. However, the current ordinance still states that signs are allowed, provided that “the aggregate signage displayed at one time does not exceed three (3) square feet in area per parcel,” and has not been changed as of this writing.


California town decides not to enforce ordinance prohibiting signs greater than three square feet.

The ordinance states that aggregate signage on a property may not exceed three square feet in area, despite its apparent inconsistency with a Supreme Court ruling on a case from Arizona; but following backlash from political campaigns, the City Manager has decided not to enforce the policy until it is reviewed again by the City Council.

External References

East Bay city’s stirs election season first amendment debate.

Clayton, California  Municipal Code.

Prepared by Gustav Honl-Stuenkel ‘20

Uploaded to tracker: December 13, 2018

Free Speech in Civil Society graphic

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.


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.


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.”


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,

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.


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


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.


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.”


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