First Amendment – National News Roundup

National News Roundup — Year 2, Week 19 (May 27 — June 2)

June 5, 2018 Kara HurvitzLeave a comment

This week wasn’t as catastrophic as last week. I mean, it wasn’t so good, either; in particular, there was a striking amount of Constitutional Crisis Corner, the news from Puerto Rico is dire, and our political norms are continuing to erode. It says something about how bad it was last week that I’m still feeling a small sense of relief about one section’s worth of Bad, and I won’t judge you if you do, too.

Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week’s news contains some detailed analysis that’s outside my expertise — I’m a lawyer, not a summit! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!

Constitutional Crisis Corners:

Now that things have quieted a bit, let’s catch up on Violations of the Emolument Clause regarding the Trump Organization and China. Here are the main things to know:

What the ZTE.* First Trump started talking about softening the penalties against ZTE, a Chinese telecommunications firm that has been penalized by America in March and April, as a ‘favor’ to Chinese President Xi Jinping despite the penalty’s recent issuance. Though Trump claimed the penalties “hurt a lot of American companies,” apparently by ‘American companies’ he meant his American company, because the Trump Organization got a $500M loan from China right before he announced he wanted to soften the penalties. Then news broke this week that Ivanka Trump was granted seven trademarks by China’s State Department for Industry and Commerce. This would be eyebrow-raising by itself, given Ivanka’s official role with the U.S. government, but it gets worse when you consider that they were literally issued while Trump was promising to assist ZTE, and were also issued unusually quickly — Ivanka only first applied in March. Congress is understandably pissed and pushing back, with a Senate panel approving an amendment that blocks Trump from removing penalties and sixty House Democrats demanding an ethics investigation into the entire thing.

We had quite a week for Casual Disregard of Governing Norms, including an unpleasant resurgence of press harassment. Here are the main things to know:

Classified Braggadocio.* Trump broadly shared information he wasn’t supposed to share not once, but twice this week. First he disclosed classified information about a battle in Syria to a group of fundraisers, exercising the President’s power to declassify in a decidedly inappropriate fashion. But while he might have had the legal right to tell donors about military action, he definitely did not have the right to tweet about employment rates over an hour before the federal report was released, which he did only a few days later. This violates a Reagan-era directive that a President may not comment on an Employment Situation Report until an hour after it is issued, and it messed with the markets that he released the information early.
Spygate Fib Fizzles. Trump tried to push his Spygate conspiracy on us another week, but the narrative definitely lost momentum anyway, with even Fox News saying the claims were baseless by the end of the week. But his blatant lies and conspiracies erode trust in public institutions and make it harder to create accountability, which is probably what they’re designed to do in the first place. Given how he peddled a fake spy conspiracy, it’s not surprising that Trump’s average of false or misleading statements has climbed to eight statements per day since the beginning of last month. Relatedly, he’s now claiming that the special investigation is unconstitutional, which it definitely is not.
The Eroding Power of Pardons. Another thing Trump does to erode institutions is pardon people convicted of disrupting or disregarding government process, and this week is no exception. The big news is his pardon this week of Dinesh D’Souza, who was convicted of campaign finance fraud for illegally using straw donors to donate to a Republican candidate in 2012. Though D’Souza was the only actual pardon granted this week, he also insinuated that he might pardon Martha Stewart or commute the sentence of Rod Blagojevich, both of whom were convicted of government-related misconduct as well. Commuting Blagojevich’s eighteen-year sentence for, among sixteen other corruption charges, literally trying to sell a Senate seat would be particularly repugnant, but Trump’s previous pardons have been pretty bad as well, and he’s since moved on to announcing he can pardon himself, so all bets appear to be off on the pardon front.

There was also more aggression regarding Infringement of First Amendment Rights:

Actual Censorship Is Apparently a Thing Now. The day after Samantha Bee apologized for calling Ivanka Trump a vulgar epithet (thanks for the euphemism, New York Times!), Trump publicly demanded to know why she wasn’t fired for the thing she had just apologized about. (Trump also called the lack of firing a ‘double standard’ because Roseanne Barr got canceled for being terminally racist, but more on that below.) But even more concerning than Trump’s temper tantrum was Sarah Huckabee Sanders’s statement about it as official White House press secretary: “The collective silence by the left and its media allies is appalling. Her disgusting comments and show are not fit for broadcast, and executives at Time Warner and TBS must demonstrate that such explicit profanity about female members of this administration will not be condoned on its network.” (emphasis mine) In other words: The government is pressuring a private entity to fire its staff on account of she said bad things about said government, and that is literally what First Amendment freedom of speech is supposed to prevent.

There were a few developments on the Russia Investigation front too, including one major bombshell. Here’s a summary of the main things to know:

Your By-Now-Weekly Cohen Updates. Impatient with Cohen’s team dawdling, the federal judge on his case ordered all document review to be completed by June 15. So far, the team has only claimed about 252 documents out of 1.3 million as privileged, which is an astonishingly low number when you consider that Cohen was Trump’s attorney and all attorney work product is privileged. As Business Insider noted, “what it tells us is that Cohen wasn’t acting as a lawyer very often; [h]e was doing something else.” Almost to underscore the point, recordings also surfaced this week of Cohen making threats to various people to get them to do things. All in all, Cohen looks less like a lawyer and more like a wartime consigliere every day.
Sessions Recusal Investigation. Several outlets are reporting this week that Mueller has renewed interest in Jeff Sessions after studying Trump’s repeated requests that Sessions rescind his recusal from the Russia investigation. In particular, Mueller’s list of questions for Trump has about eight questions regarding the recusal. Unsurprisingly, Rudy Giuliani doesn’t want any of those questions answered, and he’s now back to arguing that Trump can’t be subpoenaed.
Mueller v. Manafort (Round 2354256). Mueller’s team moved to revoke Manafort’s bail this evening, alleging that he tampered with witnesses in his ongoing investigation. Since the allegations involve literally contacting witnesses via WhatsApp and telling them what to say, it’s understandable that the filing notes Manafort’s conduct “instills little confidence that restrictions short of detention will assure [his] compliance with the court’s orders and prevent him from committing further crimes.” No news on when the hearing will be scheduled as of yet, but given the allegations it seems pretty likely it will be — I’ll follow up on this once there’s more news.

Your “Normal” Weird:

North Korea’s Will-They-Or-Won’t-They Summit.* According to Trump, the North Korea summit is now back on for next week, although his Secretary of State Mike Pompeo seemed less sure about this. And Kim Jong Un took an opportunity to complain to Russia about us only a day earlier, so I’m inclined to think Pompeo’s opinion more reflects reality as we head into the new week. But that said, Senate Democrats are giving Trump instructions like they think the summit will be a Real Thing, so perhaps the optimism is warranted — and either way, the summit isn’t scheduled until next Tuesday. That’s like three news cycles away by our current reckoning; pretty much anything could happen in that time!
Resignations and Racist Races. It’s been a wild week for reps and races to become them. First Virginia representative Thomas Garrett announced that he struggles with alcohol dependence and won’t be seeking reelection after all, because he’s going to get treatment instead (and good for him). It’s not clear who will replace him in the race — although it seems a safe bet it won’t be the local independent candidate, who is a terrifying hot mess even by current GOP standards. Meanwhile, the governor of Missouri resigned as part of a deal to avoid felony charges, although he’s insisting as he leaves that the whole thing was a “political witch hunt” (gosh, wonder where he learned that). And now seems like a good time to mention some bonkers things happening as we gear up for November 2018 in general, like that guy in Massachusetts who’s claiming the Holocaust was perpetuated by gay nazis and yet somehow won enough bids to challenge the gubernatorial incumbent, who is a member of his own party. Or that guy out in California who has promised a country “free from Jews”, and is still running despite polling at 0% as of this past week. In fact, all told there are eight white nationalists openly running for office this election cycle, which is kind of a nauseatingly high number.
Right to Try Bill Becomes Law. A “right to try” bill was signed this week that lets terminally ill patients try experimental medications that have not yet been approved by the FDA. At first blush, this looks like compassionate legislation, because it potentially gives struggling patients more options. But the chief sponsor of the bill has disclosed that its primary purpose was to stick it to the FDA, which is maybe not a thing we want to encourage when the rest of government has become so deregulation-happy (to our collective detriment). So it appears to be a promising law passed for the wrong reasons? Which is… disorienting, to say the least, so this wound up in the Weird section.
SCOTUS Actions. The Supreme Court was pretty busy this week, but the main theme of the cases is “nothing has been decided.” First the Supreme Court declined to hear a case regarding Arkansas’s restrictive medical abortion law, prompting an injunction to lapse and the law to immediately go into effect as the only ban of medication-induced abortion in the country. But since the appeal was regarding an injunction, rather than a final decision, the case is still ongoing, and we might see further developments. The court gave a similarly confusing ruling on another abortion case, this time about an undocumented teen’s access to abortion services. Because the abortion had been obtained, the Supreme Court found the whole thing moot, and vacated the lower court’s decision as part of that finding — and the holding is narrowly tailored to her, so it doesn’t impact anyone else going forward. They also declined to punish her attorneys for doing their jobs, though, so there’s at least one actual decision in there. And finally, the Supreme Court issued an actual decision on the Masterpiece Cakeshop case, but nobody can agree on what it means (so I threw my own analysis into the ring). The short version of my take is that the ACLU’s right; it doesn’t create a license to discriminate — but Lambda Legal is also right to say that there are plenty of concerns created anyway.

The Bad:

Puerto Rico Death Report Released. The New England Journal of Medicine released a report estimating the total number of deaths in Puerto Rico attributable to Hurricane Maria and its aftermath, and that number is a nauseating 4,645 people — a figure nearly seventy times the official death count of 64, and over twice the death count from Hurricane Katrina. This discrepancy is so large that the Puerto Rico Institute of Statistics is suing to get more accurate information about the death count. The high numbers are at least partially attributable to lack of electricity and medical assistance in the months after the hurricane, and I can personally verify that multiple friends and colleagues have horror stories about losing family members on the island due to lack of insulin or other critical medical care in the last half year. This is deeply horrifying, and should never have occurred, and we owe our fellow citizens better than this. A colleague with family on the island asks me to note that they particularly recommend donating to Puerto Rico Legal Services (SLPR) at this time.
Immigration Updates. The immigration horrorshow continues this week, with unsurprising news that the number of migrant children unaccompanied by adults has climbed by over 2,000 since late April due to the new “zero tolerance” policy and the shelters can’t keep up. The administration has begun to discuss putting children on military bases when the shelters become completely full. Meanwhile, some news groups are reporting that funding has been cut for groups that provide legal representation to unaccompanied minors, and when a senator tried to tour a detention center for immigrant children this weekend, the center called the cops on him instead of letting him in. And Buzzfeed reported that a mother who legally arrived to seek asylum with the Honduran caravan was separated from her children despite the lack of illegal entry, confirming that this practice is being applied to asylum seekers.
Trade Tariffs Against Our Allies.* Trump is back to pushing tariffs against Mexico, Canada, and the European Union, because nothing says Alt-Right Summer Fun quite like alienating allies at our borders. Unsurprisingly, none of these countries are happy with us, and we appear to be on the brink of a global trade war. So now the EU’s opening a WTO case against us and Trudeau refused to meet with Trump because the latter insisted on a sunset provision for NAFTA. Which naturally means the next step should be banning German cars, at least if you’re Donald Trump and therefore inexplicably hate them. I’ll be honest, I can barely make heads or tails of any of this, because it’s so incredibly self-spiting it’s bananas.
Save Coal (Because I Said So).* Trump also announced this week that he plans to bail out faltering coal companies, which he’s classifying as an ‘emergency response necessary to protect national security’ but a more reasonable person might classify as a ‘nepotistic response lucrative to protected Trump friends.’ It’s actually the second bailout attempt since last year, but it’s not better-tailored than the first one, because it doesn’t actually address the real reason coal is struggling — its main competitor is natural gas. But like so many things the Trump administration does, this is going to happen whether the facts support it or not.

The Good:

Roseanne is Barred (from ABC). After an unprovoked and racist tweet storm this week, Roseanne Barr’s show was dropped by ABC, with the network calling her language “abhorrent, repugnant, and inconsistent with our values.” Barr initially tried to shake off blame, saying she wasn’t racist and lashing out at cast members who condemned her actions. But after she claimed that she was “ambien tweeting,” the company that makes Ambien, Sanofi, noted that “racism is not a known side effect of any Sanofi medication.” It’s so rare to see racism viewed as a toxic brand these days that I’m just gonna go ahead and enjoy that while I can.
Recent Court Resilience. For all that the Supreme Court was a mixed bag this week, there were several steps forward by other courts this week as well. On the lawsuit side, a federal union is suing Trump over his executive order limiting union activity, alleging that it violates the First Amendment and oversteps his constitutional authority (both of which are probably true). And the NAACP and special education groups are suing Betsy DeVos over how her department has managed civil rights cases, arguing that the behavior is arbitrary and capricious. And finally, Iowa advocates won a minor victory when a state judge issued an injunction blocking the “heartbeat abortion” law from taking effect until the case is resolved. Yay progress!

And that’s the news this week, which honestly is more than enough for one week, good grief. I’ll be back next week, and I hope you will be too. In the meantime, feel free to ping the National News Roundup ask box. Send me questions! Send me feedback! Send me the a week with fewer last-minute news items!

Red, White, and First Amendment Blues

February 10, 2017October 21, 2019 Kara HurvitzLeave a comment

One of the most fascinating and rapidly evolving news stories this week involves Nordstrom dropping Ivanka Trump’s clothing line, citing poor sales as its reasoning. In case you missed this, here is more-or-less what happened: First it was a simple schadenfreude-laden headline, because the Trump dynasty loves selling things and also is historically bad at it. But the collective amusement turned into incredulous outrage when Trump censured Nordstrom’s from the POTUS account, in typical 45th fashion. Then we all watched a Spicer Double Down Special in yesterday’s press conference, when he referred to the business move as “a direct attack on [the President’s] policies.” And by the time Kellyanne Conway got around to literally advertising Ivanka’s product in her official capacity as a White House adviser today, nothing was surprising anymore.

I’ve seen a lot of people note Conway’s endorsement that was illegal (which it was), that this whole story illustrates Trump’s inherent conflict of interest (which it does), and also that Spicer apparently doesn’t know what the word ‘direct’ means (which he doesn’t). But I also think this is the latest in a larger picture issue, and I don’t hear a lot of people talking about it. And that issue is that this administration is launching a systemic assault on the First Amendment.

What does Trump’s conflict of interest have to do with the First Amendment?

I’m glad you ask, Hypothetical Person in My Head! The key is both Trump and his proxy Spicer censuring Nordstrom’s business decision. The groundwork was laid when Trump criticized Nordstrom’s business decision from the POTUS account, saying: “My daughter Ivanka has been treated so unfairly by @Nordstrom. . . . Terrible!” This is because a statement from an official account that something was “unfair” can be reasonably read to carry an implicit threat. But that idea wasn’t fully developed until Spicer said this in the press conference yesterday: “There are clearly efforts to undermine [Ivanka’s] name based on her father’s positions on particular policies that he’s taken. This is a direct attack on his policies.” And it’s when a business decision becomes an “attack” on Presidential policies that the larger picture about the First Amendment starts to take shape. As it happens, these statements taken together tread awfully close to Nordstrom’s right to freedom of speech — specifically its freedom of association and freedom of expressive conduct (And also its freedom to contract, but that’s a whole other ball of wax.).

A Brief First Amendment Primer

For those of you playing the home game, the First Amendment contains more-or-less five basic rights:

Freedom of the press;
Freedom of speech;
Freedom of religion (encompassing both the right to practice religion without government hindrance and the right to freedom from government laws “respecting a religious establishment”);
Freedom to petition; and
Freedom to peaceably assemble.

Though whole treatises could be (and have been) written on this topic, the main thing to take away for now is that the government generally cannot tread on these five things. That includes all branches of the federal government, not just Congress (which is what the First Amendment literally says), and thanks to the Fourteenth Amendment it includes state government as well. (Note that it does not, however, extend to that moderator on reddit who banned that one guy for using slurs, regardless of what that guy is yelling on 4chan.)

Okay, but One Tweet Isn’t an Attack

Good point, Other Hypothetical Person Also in My Head! But this is the part where I remind you that this wasn’t just one tweet in a vacuum — it’s just the latest part of a sustained, systemic effort. Let’s go through that list above, with an eye towards things this administration has done in the past as well as in the past few weeks, and see if they hit all of the First Amendment tickyboxes.

Freedom of the Press: Check. At this point, the 45th discrediting specific members of the press (and especially CNN) as “fake news” has become so commonplace that it’s a recurrent joke on Saturday Night Live. And that skit was hilarious, but it touches on a real phenomenon that’s pretty frightening: The idea that if you report displeasure with the President’s policies, you no longer get to count as real news. This is in addition to a growing rhetoric that the members of the fourth estate are enemies of the state generally, which is popping up in everything from serious allegations that the press is “refusing to cover” terrorist attacks to random statements attacking the “so-called media” over, of all things, reporting on a bathrobe. These statements, taken in tandem, paint a picture of this administration’s general desire to make Americans mistrust news in general.

Freedom of Speech: Check. I covered this one briefly above, but let’s spend a few more minutes on it. This administration has a long-established position of disliking First Amendment freedom of speech, which predates its assumption of office — from threatening to sue the people who stepped forward about sexual assault during his campaign to threatening to jail Hillary Clinton for telling ‘so many lies’ to threatening to remove citizenship for flag-burning. Since taking office, the administration has continued this trend, issuing a communications lockdown impeding executive government staff’s use of social media, demanding that park service officials retract tweets, and beginning to dismantle net neutrality. These actions, taken in tandem, suggest this administration wants people to fear speaking and relaying information freely in a variety of circumstances.

Freedom of Religion: Check. This administration has touched upon both the exercise clause and the establishment clause within the past few weeks. On the exercise end, mounting evidence is being considered by courts that the recent executive order is intended to curtail Muslim entry to the country due to specific Islamophobic animosity within the administration. On the establishment end, we have Trump threatening to dismantle the Johnson Amendment at the National Prayer Breakfast so that Christian organizations can participate more directly in politics, and promising to make persecuted Christians a political priority for immigration. None of this is a good sign, especially so early on in the Presidency.

Freedom to Petition: Check. This one is a more nebulous concept in some ways than the others, but the freedom to petition generally involves being able to talk to government directly about issues with governance. Political texts books often point to things like lobbying, letter-writing, e-mail campaigns, testifying before tribunals, filing lawsuits, supporting referenda, collecting signatures for ballot initiatives, peaceful protests, and picketing. It’s pretty closely tied to the freedom to assemble, which I’ll get to below. But things like shutting down the White House comment line, lying about the number of people who attended the Inauguration, the forcible follow of the POTUS account by 560,000 Twitter users, ignoring one of the most popular We the People petitions in history, and repeatedly attacking the judiciary branch all implicate the freedom to petition, and also all have happened in the past few weeks. Taken together, they suggest this administration wants to make it difficult for constituents as well as other branches of government to interact with its decisions.

Freedom to Assemble: Check. This right applies both to the right to protest and to the general right to associate with other people in things like unions. Though in general the Trump administration has been a bit cagey about this one, we do see early indications that we can expect future infringement of the right of assembly . Trump’s threat to cut federal funding over Berkeley protests is a mixed example at best, but his early description of protests as “unfair,” later description of Madonna’s statements at the Women’s March as “disgraceful to our country,” and more recent iterative rhetoric that protesters are being ‘paid’ all paint a larger picture that can be separated from the violence associated with the Berkeley news. And they come at a time when several state legislators are suggesting criminalizing protest. These things suggest a broader stance against protest generally.

Why does all of this matter?

It matters because the First Amendment collectively is an important check on centralized government process. The Founding Fathers knew this — the anti-federalists fought so hard for a Bill of Rights because they wanted to have a system in place that could slow the federalist machine and prevent it from steamrolling human rights. It’s not a coincidence that the First Amendment is, well, first.

And a natural extension of that is that a healthy enforcement of the Bill of Rights, and the First Amendment in particular, prevents a lot of the hallmarks of fascism from finding purchase (particularly the intertwining of government and religion, controlled mass media, suppression of labor power, and censorship of the arts). It’s a foundational part of American history, and one of the things that does, in fact, make America great. We’ve seen a lot of discussion about whether Trump’s administration is ushering in an era of fascism, and I personally believe that it is. In order for a nascent fascist state to take root in the United States, the Bill of Rights and especially the First Amendment (along with the Fourth, Fifth, Sixth, Eighth, and Tenth) need to be bludgeoned into submission. And we’re watching it happen, one tweet at a time.

What can we be doing? (Besides getting the 45th to stop tweeting. That isn’t going to happen.)

Okay, you raise a compelling counterpoint, Final Hypothetical Person, despite the noted disadvantage of not actually existing. But there are things we can be doing nonetheless!

Resist normalization of deviance. This is basically just a fancy sociological way of saying that there is real actual societal value in stamping “This Isn’t Normal” on your forehead and yelling it every time something infringes on a First Amendment right. On a related note, Amy Siskind recommends keeping a list of all of the things you notice changing around you — experts say this can be a very effective technique for resisting normalization. She keeps a weekly list herself, and you can read this past week’s here.
Continue to exercise your own rights, especially the last two. Protest things! Sign petitions! Call your senators and yell a lot! Obviously, this is easier for some people than others, but one very real way to preserve rights is to exercise them.
Keep track of the news. You can’t know your rights are being infringed if you aren’t paying attention — but more importantly, you also don’t know when your rights are being protected. The Ninth Circuit took a big step towards protecting freedom of religion today, though that fight is far from over, and that’s really helpful to know — it’s a form of petition being successfully preserved, at least so far.
Take care of yourself. It’s the best way to keep on fighting.

And on that note, I am going to take my own advice, and save writing about today’s three executive orders for tomorrow. Self-care, folks. It’s a thing. But you’ll hear from me again soon!