Given the historical importance of the recent Senate impeachment trial, I thought it useful to have some record of the relevant documents, news stories, videos, and op-eds concerning the First Amendment arguments tendered by the House managers and the counsel for the former president along with what it might all portend for the future.
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"He riles up a mob, incites them, he inflames them and then, when they're about to do the most lethal damage, turns away and is derelict in his duty. That's the reason it's vital — vital! — that he be convicted and personally disqualified from running."
— Laurence Tribe, Erin Burnett OutFront, CNN ()
"[T]he argument made by the House impeachment managers that the First Amendment does not apply to presidents or others who “attack our democracy” was precisely the argument made by Joseph McCarthy and his followers in the 1950s . . ."
— Alan Dershowitz, The Hill ()
"Holding the president accountable for his words on Jan. 6, as part of that pattern, does not run afoul of the First Amendment. The House impeachment resolution reflects this."
— Anthony Romero, Executive Director, ACLU ()
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Rep. Jamie Raskin
Annie Karni, "," The New York Times (Feb. 16) (legal complaint )
Russell Contreras, "," Axios (Feb. 16)
Paul F. deLespinasse, "" Newsmax (Feb. 16)
Mitch McConnell, "," The Wall Street Journal (Feb. 15)
Brooke Seipel, "'," The Hill (Feb. 15)
Steven Dennis, "," Twitter (Feb. 15)
"," Smerconish, CNN (Feb. 14) (video)
"," Meet The Press, NBC News (Feb. 14) (video)
"," Twitter (Feb. 13)
"," CNN (Feb. 13)
," ABC News (Feb. 13)
"," ABC News (Feb. 13)
"," NBC News (Feb. 13) (video)
Weiyi Cai, Annie Daniel, Jon Huang, Jasmine C. Lee & Alicia Parlapiano, "," The New York Times (Feb. 13)
Maanvi Singh, Adam Gabbatt, & Martin Belam,"," The Guardian (Feb. 12)
Mark Sherman, "," Associated Press (Feb. 12)
Jacqueline Thompson, "'," Law.com (Feb. 12)
"," The New York Times (Feb. 12) (see also)
Louis Jacobson, "," Politifact (Feb. 12)
Jess Bravin, "," The Wall Street Journal (Feb. 12)
Ian Millhiser, "," Vox (Feb. 12)
"," The New York Times (Feb. 12) (video)
Manu Raju & Alex Rogers, "," CNN (Feb. 11)
Morgan Phillips, "’," Fox News (Feb. 11)
Josh Blackman, "," The Volokh Conspiracy (Feb. 11)
"," PBS (Feb. 11) (video)
Dom Calicchio, "," Fox News (Feb. 11)
Brakkton Booker, "," NPR (Feb. 10)
Noah Feldman, "," Arizona Daily Sun (Feb. 9)
Jacob Sullum, "" Reason (Feb. 9)
Jonathan Turley, "," Fox News (Feb. 9)
, "," JonathanTurley.org (Feb. 8)
Matt Naham, "," Law & Crime (Feb. 8)
Ilya Somin, "," The Washington Post (Feb. 8)
Josh Blackman, "," The Volokh Conspiracy (Feb. 6)
Open letter: "," (Feb. 5) (NYT story )
Elliot Mincberg, "," People for the American Way (Feb. 5)
Alan Dershowitz, "" The Hill (Feb. 4)
Catherine J. Ross, "," Slate (Jan. 19)
Keith E. Whittington, "," LawFare (Jan. 19)
Suzanne Nossel, "," The New York Times (Jan. 14)
Joseph Kennedy, "," Slate (Jan. 14)
Einer Elhauge, "," The Washington Post (Jan. 14)
James D. Zirin, "," Moyers on Democracy (Jan. 12)
Anthony D. Romero, "," ACLU (Jan. 11)
Main documents
The lawyers
House lawyers
Rep. Stacey Plaskett
Michael T. van der Veen (van der Veen, O’Neill, Hartshorn, and Levin Law)
Former president's lawyers
Symposium on 'National Security, Whistleblowers & the First Amendment'
"," First Amendment Law Review (Jan. 22)
Panel 1: “Classification and Access to National Security Information”
, Professor of Law at University of Denver Sturm College of Law
, Vice Dean for Intellectual Life and Charles KellerBeekman Professor of Law at Columbia Law School
, Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law
Panel 2: “The Press, Whistleblowers, and Government Information Leaks”
, Visiting Professor of Law at the Northwestern Pritzker School of Law
, Senior Vice President and Deputy General Counsel at The New York Times Company
, Judge John J. Parker Distinguished Professor of Law & Associate Dean for Academic Affairs at University of North Carolina School of Law
Upcoming law review symposium on government speech
(April 16)
10 a.m., Welcoming Remarks Vikram D. Amar, University of Illinois College of Law
10:05 a.m., Opening Keynote Helen Norton, University of Colorado Law School
10:15 a.m., Panel I
Panelists: Claudia E. Haupt and Wendy E. Parmet, Northeastern University School of Law Kate Shaw, Cardozo School of Law Danielle K. Citron, University of Virginia School of Law
Moderator: Jason Mazzone, University of Illinois College of Law
11:30 a.m., Panel II
Panelists: William Araiza, Brooklyn Law School Mary-Rose Papandrea, UNC School of Law Clifford Rosky, University of Utah S.J. Quinney College of Law Alexander Tsesis, Loyola University Chicago School of Law
Moderator: Jason Mazzone, University of Illinois College of Law
1 p.m., Panel III
Panelists: Erwin Chemerinsky, UC Berkeley School of Law Michael S. Kang, Northwestern Pritzker School of Law and Jacob Eisler, University of Southampton Law School Ciara Torres-Spelliscy, Stetson University College of Law
Moderator: Jason Mazzone, University of Illinois College of Law
For more information: Yongli Yang JD Candidate, Class of 2021 Managing Internet & Symposium Editor, University ofIllinois Law Review, 2020-2021 University of Illinois
New scholarly article on First Amendment and incorporation doctrine
James Y. Stern, "" University of Illinois Law Review (2020)
The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine’s justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton’s recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as having three basic components, of which First Amendment incorporation predominated. It goes on to show how First Amendment incorporation drew in important ways from existing doctrine, including important strands of “Lochnerian” jurisprudence, and was structured in a way that in turn facilitated subsequent incorporation of criminal procedure protections. Finally, it notes that in its critical beginning moments, incorporation decisions did not consider, much less adjudicate, the kinds of issues that are today central to discussions of judicial federalism.
Rosenberg is assistant chief counsel at ABC, Inc., where he has provided pre-broadcast counsel for ABC News clients on libel, newsgathering, intellectual property, and FCC regulatory issues since 2003.
Related
"," March 4 at 7 p.m. EST, hosted by the First Amendment Museum
"," First Five Now, Freedom Forum (Feb. 11)
"," First Amendment Watch (Feb. 9)
Clear and Present Danger podcast on free speech and racial justice
"" Episode 41
In May 2020, protests erupted all over the U.S. after a video emerged of a white police officer killing a black man named George Floyd. Millions took to the streets in support of racial justice under the rallying cry “Black Lives Matter.” Most protests were peaceful, but several cities experienced large-scale violence. Free speech was also affected in the process. A disturbing number of incidents of police brutality and excessive force against peaceful protesters and journalists were documented. President Trump accused a Black Lives Matter leader of “treason, sedition, insurrection” and labelled protestors as “terrorists.”
But demands for structural change also led to calls for de-platforming people whose views were deemed hostile to or even insufficiently supportive of racial justice. A Democratic data analyst named David Shor was after tweeting a study that showed that nonviolent black-led protests were more effective than violent ones in terms of securing voter support. In another instance, New York Times staffers protested that the newspaper put “Black @NYTimes staff in danger” by running a provocative by Republican Senator Tom Cotton, which argued for deploying the military to quell riots. The newsroom revolt led to opinion editor James Bennet resigning.
Academia was affected too. A signed by hundreds of Princeton faculty members, employees and students demanded a faculty committee be established to “oversee the investigation and discipline of racist behaviors, incidents, research, and publication” and write “Guidelines on what counts as racist.”
Social media companies came under to take a more robust stand on “hate speech.”
The entrenchment of so-called “cancel culture” caused around 150, mostly liberal, writers and intellectuals to sign an open “.” The letter argued against what the signers saw as “intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.” The letter drew sharp criticism from many journalists, writers and intellectuals for being “tone-deaf,” “privileged,” “elitist” and detracting from or even hurting the struggle for racial justice.
The wider debate often turned nasty — especially on social media — with loud voices on each side engaging in alarmist, bad faith arguments ascribing the worst intentions to their opponents. Many of those concerned about free speech warned of creeping totalitarianism imposed by “social justice warriors” run amok, intent on imposing a stifling orthodoxy of “wokeism.” Some confused vehement criticism of a person’s ideas with attempts to stifle that person’s speech. On the other hand, some racial justice activists outright denied the existence of “cancel culture” and failed to distinguish between vehement criticism of a person’s ideas and calling for that person to be sanctioned by an employer, publisher or university. Some even accused free speech defenders of being complicit in or actual defenders of white supremacy and compared words deemed racially insensitive with violence.
Underlying these debates is a more fundamental question. Is a robust and principled approach to free speech a foundation for — or a threat to — racial justice?
To help shed light on this question, this episode will focus on what role the dynamic between censorship and free speech has played in maintaining and challenging racist and oppressive societies. The episode will use American slavery and segregation, British colonialism, and South African apartheid as case studies.
Ayaan Hirsi Ali grew up in a culture of conformity. She was
beaten and mutilated. She was told who she must marry. Eventually,
she rebelled. "You don't speak up at first," she told us. "First
you leave and you find a place of safety. It's...
First Amendment News is a weekly blog and newsletter about free expression issues by Ronald K. L. Collins and is editorially independent from ĂŰÖĎăĚŇ.
When 15-year-old Samson Cournane wrote a petition calling attention to patient-safety concerns at a local hospital, the hospital threatened to sue his mother for defamation.
