Daily Media Links 4/17

April 17, 2020   •  By Tiffany Donnelly   •  
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Coalition Statement Supporting the Right to Protest During the Pandemic

Dissent and protest are protected by the First Amendment to the Constitution, which guarantees freedoms of speech, assembly, and the right to petition the government for a redress of grievances. These rights are fundamental to our democracy. They cannot be sacrificed even, and perhaps particularly, in times of public emergency.

On April 14, 2020, the police department in Raleigh, North Carolina, tweeted, “Protesting is a non-essential activity,” as an explanation for breaking up a protest. As organizations dedicated to protecting civil liberties and the First Amendment, the undersigned groups are deeply disturbed by this statement and other remarks and actions by public officials suggesting that peaceful protest can be outlawed during a national crisis. The ongoing Covid-19 pandemic cannot be used to justify the suspension of First Amendment rights. People must be free to express disagreement with government decisions, even when it involves criticism of essential public health measures…

We urge all public officials to recognize their obligation to defend First Amendment rights while they protect public safety. These rights are critically important during uncertain times like these.

Read the full statement here.

The Courts

New York Times: Judge Dismisses Lawsuit Challenging Censorship of Writings by Ex-Officials

By Charlie Savage

A federal judge on Thursday dismissed a novel lawsuit challenging a censorship system the government uses to ensure that millions of former military and intelligence officials disclose no classified secrets if they write articles and books after leaving public service.

It has become a routine part of gaining a security clearance to consent to prepublication reviews of writings that relate to government work. Over the past 40 years, that system has expanded to cover many more officials and agencies than it did in 1980, when the Supreme Court upheld it in a cursory and unsigned decision.

But in a 57-page opinion, Judge George J. Hazel of the Federal District Court of the District of Maryland ruled that the 1980 precedent still controlled the legal dispute – at least at his level. He wrote that only the Supreme Court can decide if one of its precedents is obsolete in light of changed circumstances…

Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, which – along with the American Civil Liberties Union – brought the case on behalf of five former intelligence officials, said they would appeal.

“This is a disappointing decision,” Mr. Jaffer said. “The court has approved sweeping restrictions on the speech of former civil servants whose insights into the work of government are needed more than ever. These restrictions silence voices that the public needs to hear, and they are inconsistent with the First Amendment.”

WKOW: Marquette County teen sues sheriff who ordered her to delete Instagram post

By Dan Plutchak

A Marquette County teen has filed a federal lawsuit against the Marquette County Sheriff, who she says ordered her to remove an Instagram post about recovering from COVID-19.

The Wisconsin Institute for Law & Liberty filed the lawsuit in federal court Thursday on behalf of Amyiah Cohoon and her parents, Richand and Angela, against Marquette County Sheriff Joseph Konrath and a patrol sergeant for violating the First and Fourteenth Amendment rights…

The lawsuit asks a judge to rule that, “the Cohoon’s Instagram posts were speech protected by the First Amendment and that Defendants’ threats to cite her or her parents for disorderly conduct and arrest and jail them if she did not remove her posts violated her First Amendment rights.”

WHBL: Michigan residents sue Governor Whitmer over coronavirus pandemic orders

By Jonathan Stempel, Reuters

Michigan Governor Gretchen Whitmer faces at least two federal lawsuits challenging her April 9 executive order to combat the coronavirus outbreak, including requirements that residents stay at home and most businesses close.

In complaints filed on Tuesday and Wednesday, several Michigan residents and one business accused the Democratic governor of violating their constitutional rights by imposing her “Stay Home, Stay Safe” order…

Both lawsuits say Whitmer’s order deprives residents of their constitutional right to associate with other people under the First Amendment and their right to due process.

Techdirt: Lessig Withdraws ‘Clickbait Defamation’ Lawsuit Against NY Times After Changed Headline

By Mike Masnick

You may recall that earlier this year, I heavily criticized Larry Lessig’s defamation lawsuit against the NY Times, which I believe is a quintessential SLAPP suit. The NY Times presented a Medium post that Lessig had written about the Jeffrey Epstein/MIT Media Lab situation in a way which he felt unfairly presented what he had said. As Larry and I discussed in a long and frustrating podcast, Larry believed that NY Times’ characterization of what he said was “false and defamatory” and that it was done for clickbait reasons — while I believe it was that Lessig himself failed to clearly explain his ideas, and that led many people to believe he was arguing something he was not. Lessig, clearly, disagrees. While I agreed that the NY Times (and many others) failed to understand the nuance of Lessig’s arguments, you don’t get to sue someone for misunderstanding your poorly made arguments.

Either way, for reasons that are not entirely clear, on April 2nd, the NY Times finally changed the headline and lede to the story and added a correction…

Then, on Monday, Lessig announced that he had agreed to withdraw the lawsuit because of this change. It’s not a settlement and it wasn’t negotiated. The NY Times made this change, and Lessig felt that there was little reason to continue the (expensive) lawsuit.

Congress

National Review: The Coronavirus Will Be Leviathan’s Enabler

By Kevin D. Williamson

Forcing people into the position of needing assistance and then conditioning that assistance in self-serving political ways is corrupt, and it should be understood as corruption.

For example: There might have been some pretty good “loose lips sink ships” reasons to restrict the communications of certain businesses receiving military contracts during the war against Germany and Japan (oh, all right: You, too, Italy, you, too!), but there is not much good reason for restricting the First Amendment rights of U.S. business owners and executives during this epidemic. Nonetheless, Washington is doing precisely that, for example by forbidding recipients of federal business aid to speak against unionization in their firms. Aid is normally conditional, and there is not anything wrong with that where the conditions serve some legitimate purpose related to the intended use of the aid. This is not that. This is rank political opportunism and the diminution of basic political rights. Progressives tempted to justify this restriction of political speech on the grounds that he who pays the piper calls the tune should think very carefully about the principle they are forwarding and the ways in which it might be applied to people receiving other kinds of government aid.

Washington Examiner: Ted Cruz introduces legislation that would sanction Chinese officials involved in coronavirus cover-up

By Dominick Mastrangelo

Sen. Ted Cruz said this week he introduced legislation that would seek to punish Chinese Communist Party officials who reportedly deceived world health officials and covered up the realities of the coronavirus during its early days in Wuhan, China, late last year.

“As the coronavirus was breaking out in Wuhan, the Chinese Communist Party deliberately silenced those who tried to sound the alarm and provide the world with medical information – just as they do with political speech they find threatening,” Cruz said in a statement when he announced the legislation. “They prioritized propaganda over protecting the health and safety of people around the world – and the consequences have been catastrophic.” …

Cruz’s legislation would sanction any Chinese officials “involved in the ongoing suppression of medical experts, journalists, and political dissidents, amid Chinese censorship of its citizens.”

First Amendment

Washington Post: Fox News blasts merit-starved coronavirus lawsuit

By Erik Wemple

The 1917 Espionage Act, as amended, triggered a spree of prosecutions against people who, by modern standards, were performing their civic duty. But many argued there just had to be limits on free speech during wartime. “It became criminal to advocate heavier taxation instead of bond issues, to state that conscription was unconstitutional, though the Supreme Court had not yet held it valid, to say that the sinking of merchant ships was legal, to urge that a referendum should have preceded our declaration of war, to say that war was contrary to the teachings of Christ,” noted Zechariah Chafee in a 1941 history of free speech. “Men have been punished for criticizing the Red Cross and the Y.M.C.A., while under the Minnesota Espionage Act it has been held a crime to discourage women from knitting by the remark, ‘No soldier ever sees those socks.'”

The backlash to the overkill of World War I Espionage Act prosecutions has given Americans the broad-ranging First Amendment protections that many have come to take for granted. They’re every bit as important in times of crisis as in times of prosperity.

Wall Street Journal: The Lockdown Protests Begin

By The Editorial Board

On Wednesday thousands drove to Lansing to jam traffic, honk horns and wave posters from car windows, in what the Detroit News called “one of the largest protests at the state Capitol in a decade.”

The majority remained safely in their vehicles. But instead of at least acknowledging her constituents’ concerns, Governor Whitmer focused on the few who left their cars, accusing the protesters of jeopardizing public health and threatening that they “may have just created a need to lengthen” her emergency measures. In North Carolina, the Raleigh police department infuriated the public when, after a smaller protest there this week, it tweeted that “protesting is a non-essential activity.”

As the closures and isolation extend into a second month, along with increasing economic harm, acts of civil disobedience may increase. Efforts to organize protests are underway in several other states, and police have busted speakeasies in New York and California.

Independent Groups

CNBC: Tom Steyer shuts down his Need to Impeach operation after failed 2020 bid, Trump acquittal

By Brian Schwartz

Billionaire and former presidential candidate Tom Steyer is shutting down his organization that advocated the impeachment of President Donald Trump.

Steyer, a businessman who founded Need to Impeach in 2017 to call on Congress to impeach and remove Trump from office, has decided it’s time for the political action committee to close after the president was indeed impeached by the Democratic-led House late last year, according to his spokesman…

“Tom started Need to Impeach two and half years ago and committed over $75 million of his own money to help shine a light on this lawless president,” Benjamin Gerdes, the spokesman, told CNBC…

It doesn’t appear Need to Impeach will be evolving into a new venture. The organization’s website says it is “transitioning to Need to Vote – our movement to hold Republican Senators and the President accountable.” No other details are given, except that it calls for people to sign up for an email list. Executive director Nathaly Arriola’s LinkedIn page says that she’s now the executive director of Need to Vote.

However, Gerdes, the Steyer spokesman, said it is not a new group.

Online Speech Platforms

NPR: Did You Fall For A Coronavirus Hoax? Facebook Will Let You Know

By Shannon Bond

In a new move to stop the spread of dangerous and false information about the coronavirus, Facebook will start telling people when they’ve interacted with posts about bogus cures, hoaxes and other false claims.

In the coming weeks, Facebook users who liked, reacted to or commented on potentially harmful debunked content will see a message in their news feeds directing them to the World Health Organization’s Myth busters page. There, the WHO dispels some of the most common falsehoods about the pandemic.

“We want to connect people who may have interacted with harmful misinformation about the virus with the truth from authoritative sources in case they see or hear these claims again off of Facebook,” wrote Guy Rosen, Facebook’s vice president for integrity, in a blog post.

The new feature will go beyond Facebook’s current attempts to keep dangerous misinformation about the virus off its network. Up until now, it has been notifying users only when they share a post that fact-checkers have labeled false.

Candidates and Campaigns

The Hill: Biden announces endorsements from End Citizens United, Let America Vote

By Tal Axelrod

Joe Biden on Thursday announced he had received endorsements from End Citizens United and Let America Vote as the former vice president works to unite Democratic support around his White House bid.

Biden said in a statement first provided to The Hill that he would work as president to curtail the power of outside money in politics and expand access to the ballot for all voters.

“Our Constitution doesn’t begin with the phrase, ‘We the Democrats’ or ‘We the Republicans.’ And it certainly doesn’t begin with the phrase, ‘We the Donors.’ It begins with ‘We the People.’ Today, our campaign finance and electoral systems are broken. I’m excited to work with End Citizens United and Let America Vote to fix this once and for all,” he said.

Biden said he would work to overturn the Citizens United Supreme Court decision, which lifted restrictions on independent expenditures to political campaigns by corporations.

The States

Yakima Herald: Justices: $18M campaign finance penalty to be reconsidered

By Gene Johnson, Associated Press

The Washington Supreme Court has ordered a lower court to reconsider the largest penalty for campaign finance violations ever assessed in the state.

A Thurston County Superior Court judge imposed a $6 million penalty against the Grocery Manufacturers Association – now known as the Consumer Brands Association – for violations in 2013.

The judge then tripled it to $18 million, finding the violations were intentional; the state appeals court, however, reduced it back to $6 million, saying it was inappropriate to triple the fine.

The GMA – whose members included PepsiCo., Nestle and Coca Cola – had spent $11 million to defeat Initiative 522, which would have required labeling of genetically modified organisms on food packaging.

In a ruling Thursday, a majority of the justices agreed that the organization intentionally concealed the source of money by not identifying which of its member companies had contributed it. Because the violations were intentional, five of the justices said, the organization could be required to have its fine tripled, and it reinstated the $18 million penalty.

However, the majority also said such a penalty might be so high as to violate constitutional protections against excessive punishment. It sent the case back to the appeals court to consider that question.

Greenwich Free Press: Greenwich Police Captain Kordick Resigns, but Hopes to Be Reinstated

On Wednesday Greenwich Police Captain Mark Kordick, a 30+ year member of the Police Department, submitted a letter of resignation to Police Chief James Heavey effective Thursday evening. The move came after Police Chief Heavey announced Monday he would terminate Kordick effective Friday, April 17…

Kordick said he wants his job back and was prepared to for fight for it.

The turn of events stems back to October 25, 2019, when residents began to spot red and white lawn signs sprinkled among local candidates’ campaign signs. The “Trump/Camillo” signs erected in the run up to the November 5 municipal election, left people scratching their heads. The signs said “Local Elections Matter” and “Trump/Camillo…Make Greenwich Great Again.” …

On Oct 28 Kordick was placed on paid administrative leave after he freely admitted he was responsible for the signs…

Kordick said he was flabbergasted. “The Police Dept deciding the right move was to terminate a 30-year veteran police officer for non-offensive, perfectly lawful, 100% off-duty political speech? That is insanity.”

From the start Kordick has said the signs represented his free speech…

“I am entitled to participate in the political process even if a vocal and intolerant minority do not consider my opinions worthwhile,” Kordick wrote in his letter of resignation to Chief Heavey Wednesday, adding, “Standing up against mob rule is the obligation of law enforcement. If all speech were popular speech, there would be no reason to have Constitutional safeguards in place to protect it.”

Florida Phoenix: Environmentalist Hurchalla: ‘I’m okay, the First Amendment is not’

By Lucy Morgan

A unanimous Florida Supreme Court has refused to review a $4.4-million verdict against environmentalist Maggy Hurchalla for urging the Martin County Commission to back out of a deal with Lake Point Restoration, a rock mining company.

Hurchalla, the feisty sister of former U.S. Attorney Janet Reno, has waged a lengthy legal battle, lost some of her possessions and made the case a celebrated cause for environmental activists who contend the decision against her will have a long term impact on the ability of Floridians to oppose actions taken by governmental agencies.

“I’m okay, the First Amendment is not,” Hurchalla said Tuesday after hearing of the court decision.

She has vowed to take the fight all the way to the U.S. Supreme Court if necessary and recently created www.SLAPPMaggy.com, a web site devoted to the details of the case which originated in Martin County and was upheld by the Fourth District Court of Appeal in West Palm Beach last year.

MLive: 4 Northern Michigan sheriffs won’t strictly enforce Whitmer’s ‘vague framework of emergency laws’

By Brandon Champion

Sheriffs from four different Northern Michigan counties have publicly voiced concerns regarding Gov. Gretchen Whitmer’s stay-at-home orders.

In a joint press release issued as thousands of residents protest at the state capital in Lansing, Leelanau County Sheriff Mike Borkovich, Benzie County Sheriff Ted Schendel, Manistee County Sheriff Ken Falk and Mason County Sheriff Kim Cole said they will not strictly enforce Whitmer’s orders in their counties…

Instead of strict enforcement, the sheriffs say they “will deal with every case as an individual situation and apply common sense.” …

“Each of us took an oath to uphold and defend the Michigan Constitution, as well as the US Constitution, and to ensure that your God given rights are not violated,” the sheriffs said. “We believe that we are the last line of defense in protecting your civil liberties.”

Tiffany Donnelly

Tiffany Donnelly

https://www.ifs.org/author/tdonnelly/

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