Category Archives: First Amendment

Alan Dershowitz Scores a win in Defamation Suit Against CNN

Famed attorney Alan Dershowitz sued CNN for defamation related to its coverage of his argument in the first Trump impeachment trial. He alleges that CNN misleadingly edited a clip of his statements to give a false impression about his argument… and then propagated that misperception by replaying the clip and repeating it through pundits who based their arguments on the inaccurate summary of his statement. CNN filed a motion to dismiss, arguing that his claim does not rise to the high level needed to show defamation against a public figure, among other things. The judge ruled that the claim does meet that burden, allowing the case to go forward, and scoring a huge win for Dershowitz.

One of the arguments made by CNN is that their coverage of Dershowitz’s arguments should be protected by the fair report privilege. The court agreed that verbatim statements in a public proceeding like an impeachment trial are generally protected when they are repeated verbatim, or are an “accurate or a fair abridgement.” But here, Dershowitz’s claim was that there was a deliberate scheme to defraud by playing the truncated clip, and then playing the pundits’ statements to present the comments in a defamatory matter. He will still have to prove it at trial, but Dershowitz’s allegations are sufficient to defeat the motion to dismiss. The court agreed with Dershowitz that “CNN presented an official proceeding in a misleading manner and the fair report privilege does not apply.”

This is bad for CNN. The court went on to explain that the abridgement of Dershowitz’s statement was inaccurate, in that it omitted a crucial qualification. The court said CNN could argue to a jury that Dershowitz’s statement was ambiguous and that CNN was reasonable in its belief about what Dershowitz argued. That’s a tough sell in light of the qualifying statements that CNN chose to redact from the clip. A failure to defeat a motion to dismiss is usually when media companies see the writing on the wall and look to settle. But beyond the liability for damages here, it’s bad for CNN because the judge essentially made a finding that CNN was presenting false reporting. The court said, “For the fair report privilege to apply, a defendant must have ‘presented a fair and accurate report of the source documents.’ The CNN broadcasts do not meet that standard.” [citation omitted].

Ouch. The “Most Trusted Name in News” just had a federal judge make a finding that it failed to present fair and accurate information.

This could also be bad for other media outlets, particularly those of the cable talk-show type. While it may feel good for them to dance a little over CNN’s misfortune, many other stations have used the format where they play a clip, and then have pundits attack the speaker. This ruling suggests than if they A: play a clip that is edited or redacted so as to be misleading, and B: then repeat it through pundits, even if those commentators couch their punditry as criticism. That’s been a common practice on many media outlets, and CNN has now shown that they can be called on that practice. This is an important ruling for defamation law.

Judge Throws man in Jail for Writing Critical Letter After His Case

A judge in Palm Beach County filed contempt charges against Derrick Jenkins, who was sentenced to 30 days in jail, for a harshly worded letter critical of the judge after Jenkins’ case was dismissed. In addition to being critical, Jenkin’s letter was profane, stating ““f—— hypocrit” and he “cant wait til the voters wake up and get rid of these f—— clowns you call judges.” [sic] Judge Howard Coates did not take kindly and initiated contempt proceedings. Another judge was assigned, and found Jenkins’ words a danger to the orderly administration of justice, found Jenkins guilty or contempt of court, and sentenced him to 30 days in jail with 6 months of probation.

If that sounds a problematic, you’re right. The First Amendment guarantees the right to free speech, and its protections are strongest for speech that is critical of the government. There are limits, for instance it wouldn’t be prudent to shout insults and expletives at a judge in open court. However, there was no disruption of any proceedings in this case. In fact, Mr. Jenkins’ underlying case was closed, the court had dismissed his claim against the Sheriff’s Office, so there was no pending matter. The letter would lose its protection if it contained true threats, but claiming an investigation or to have a judge voted out is not a true threat- that’s the Constitutionally preferred way to deal with those officials we disagree with. Judge Warner said, “That’s what you do when you’re unhappy with the judge. You say, ‘we’re going to vote him out of office'” according to the Palm Beach Post.

Appellate arguments were Tuesday, and the statements and questions raised by the judicial panel hearing the appeal don’t appear to take kindly to the arguments in favor of the conviction. The case does not seem to meet any of the exceptions to the protections provided by the first amendment, in spite of the fact the allegations may have been “scandalous and noxious,” in the words of the offended judge. It will likely be several weeks or even a few months until the appellate court rules.

What exactly is Sedition?

As the first indictments are coming down from the riot that occurred at the Capitol last week, the allegation of sedition has been referenced several times. Since it’s not a statute that is prosecuted very frequently, I thought it worth considering the legal definition. Federal Law defines “Seditious Conspiracy” under 18 U.S. Code § 2384 as “…two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof…” It’s a felony that carries a fine or a prison sentence up to 20 years. It certainly seems that those rioters who occupied the Capitol building would be subject to prosecution under this statute.

First, it requires that two or more people be conspiring, and there were hundreds working together to breech the Capitol building, so that element is satisfied. While it mentions putting down the government, which is arguable, it also includes other ways to break the law including levying war, oppose the authority of, hinder the execution of law or most notably, “by force to seize, take, or possess any property of the United States”. That certainly seems to be an apt description of the mass of people who breeched the Capitol building and occupied it. The Federal government certainly could make a case that the activity was seditious, especially if more information were to come out about conspiratorial actions in the lead up to the riot.

Some have suggested the President could also be criminally liable for the inflammatory language he used preceding the riot. It would be difficult for him to face criminal liability, though he not need be present to have conspired to commit a crime. Conspiracy charges, such as Seditious Conspiracy, punish not only the direct actors, but those that conspire with them. However, since the President did not directly call for invading the building, it would be difficult to make a case without something more. If things come to light over time that suggests there were actions or conversations with the President and those intending violence at the Capitol, he could face criminal liability, but his bigger concern is probably being held civilly liable.

The first indictments related to the riot have been issued, and sedition charges have not been filed against those individuals, including one who did enter the building. Mark Leffingwell does face a felony charge under the Federal Anti-Riot act for allegedly interfering with an officer during a civil disorder. He faces several other charges, including assault on law enforcement. The other individual is Lonnie Coffman, who was caught later in the day with weapons and a bunch of Molotov cocktails in his vehicle: he also faces felony charges. Dozens more have been arrested, and at least one law enforcement officer died, so many more charges are slated to come down, including homicide for anyone responsible for the officers death.

*UPDATE The FBI indicated this afternoon they are considering an array of charges, including possible sedition charges.

Challenges growing to use of Cell Phone location- “Geofencing” Warrants by Law Enforcement

Law enforcement is increasing its use of reverse-location warrants with companies like Google, known as “geofence” warrants. Instead of asking Google, or Verizon, or AT&T for the specific history of a person, these warrants ask for the identifying information of all the people in a certain area. For instance, a bank is robbed, and the authorities file a warrant on Google demanding that all of the Google Maps users with a certain radius of that bank be turned over to authorities. While the perpetrator may be included in that group, it could also potentially include the private data of dozens or even hundreds of innocent people. That’s where the biggest privacy concern arises.

The use of geofence warrants is growing, Google indicated that they were receiving 180 requests per week at the end of last year, and the numbers have been steadily increasing. The cases challenging these searches, generally most will target the lack of specificity and the invasion of privacy, have not yet resulted in many appellate decisions detailing when such warrants may be appropriate. One judge wrote in denying a warrant application, “The potential to use Google’s capabilities to identify a wrongdoer by identifying everyone (or nearly everyone) at the time and place of a crime may be tempting, but if the government can identify that wrongdoer only by sifting through the identities of unknown innocent persons … a federal court in the United States of America should not permit the intrusion.”

There is likely a path to make such reverse-location warrants valid, but it will likely encounter strict scrutiny to ensure limiting the request as narrowly as possible by size, time, and other factors to target the likely offenders, and not invade the privacy of law-abiding citizens. The concerns about unconstitutional intrusions were brought to light when NYC sought geofence data for people protesting and counter-protesting last year in the hunt for data about criminal rioters. The concern here is not only the invasion of privacy, but also the chilling effect on the 1st Amendment rights of lawful protestors. There are a lot of complex issues here, and it will likely be some time for the courts to develop guidance as to when geofence warrants are permissible, and when they are not.

Michael Cohen Recommitted to Federal Custody

Michael Cohen has been returned to prison today. According to reports, he went to sign paperwork converting his furlough to home confinement. According to statements attributed to his lawyer, the paperwork included a prohibition on several first amendment protected activities, such as speaking to media, engagement on social media, and publishing things like books. Cohen had been working on a book about his history with Donald Trump, which dates back years before Trump ran for president.

This is troubling for a couple reasons. First, it appears the prison is arbitrarily adding conditions to his sentence that were not ordered by the court. Second, those conditions seem pointedly targeted to silence him from speaking out, which is normally protected by the first amendment. While he gives up some freedom when convicted and confined or supervised, his first amendment rights do not generally go away. There may be exceptions, such as when his crime directly relates to his speech (such as if someone who had sent a threat might be restrained while on supervision,) but such conditions would not be expected in this case. The unique conditions, sprung on him without notice, suggest ulterior motives.

Warrant Issued for Church Pastor that Held Services in Violation of Stay-at-Home Order

A mega-church in Tampa defied a “safer-at-home” order in effect in Hillsborough County, Florida, and held a crowded service Sunday morning. Today, the pastor is facing charges for holding the service in violation of the order. The Sheriff and State Attorney held a press conference this afternoon to announce the charges, saying they had reached out to the church a couple of times, and the church refused to cancel the service. Pastor Rodney Howard-Browne will reportedly turn himself in on charges of unlawful assembly and violation of a public health emergency order.

Rodney Howard-Browne via Facebook

The church, and pastor Howard-Browne, will argue that the stay-at-home order violated their first amendment rights, but the equation is not that simple. The order was content neutral, meaning it did not target religious services, but all gatherings. For instance, a city cannot bad one party from putting up signs before an election, but they can ban all signs more than a month before the election: the state has more leeway on such content neutral rules. Usually, those are applied to free speech element of the First Amendment, but these rules also differ in that they deal with the free exercise of religion and the right of peaceable assembly. There’s not much precedent to use, as the last time we had such a public health emergency in this country was 100 years ago during the Spanish Flu epidemic. I think the State will be more interested in stopping the services going forward than they will be in prosecuting a pastor, but the legal question will be interesting to watch.

This twitter post links footage from the service Sunday:

UPDATE: The pastor did turn himself in on the charges. Seems like under the rodney howard-browne mugcircumstance, it would have made more sense to give him a notice to appear. That is, if you’re so worried about social distancing, there is an alternative to processing him through a jail with hundreds of inmates. But, they had a point to make, and wanted to give him a mug shot.

Upcoming Case to Challenge Florida’s Mass Shooting Threat Law

Is it a crime to post a joke about a mass threat? Florida’s law makes it a crime to publish such a threat, including posts on social media, and does not require that there be an actual harmful intent. In a few weeks, a Florida appellate court will determine if the law will stand.

David Puy, and 18-year old in West Boca Raton, made a post on Snapchat that said, “On my way, school shooter!” He says he was actually on his way to meet friends for dinner, and meant it as a joke. There’s no indication he had nefarious plans, or even owned any guns, but posting the language that sounds like a threat made it a crime. The fact that he claims to be joking does not make a difference under Florida’s latest version of the threat law, updated after the shooting a Marjory Stoneman Douglas High School in Parkland, Florida.

Puy challenged the law unsuccessfully at the trial level, and the case is now on appeal. It’s’ believed to be the first to challenge the Constitutional validity of the new version of Florida law. The issue is whether or not his words, which do not meet the historical definition of a true threat, are protected by the First Amendment. The appellate court is scheduled to hear oral arguments March 10, though it will likely be several months before the ruling is released.

Charlotte County Man Arrested after Filming Cops, Harrassing Witnesses

Ian McGuire

Charlotte County Deputies served a warrant today on Ian McGuire, accusing him of three counts of Harassing a Witness, two counts of Obstruction of Justice, and Breach of the Peace. McGuire showed up at an investigation in April and started filming deputies who were searching a warrant. They’d have a hard time charging him with anything related to that, due to his First Amendment protections. However, he took it a step farther by stepping into the crime scene area, arguing with Deputies, and allegedly mocking witnesses that were speaking to deputies. He has a First Amendment right to film public interactions, but he may have crossed the line if his words or actions interfered with the deputies’ lawful investigations (they were responding to a report of an aggravated battery). McGuire posted a 19 minute video of the incident, online. McGuire has previously been in the news for his activism.

Exotic Dancer Arrested for Threatening a Mass Shooting

brien basarich

Brein (Brien) Basarich

An exotic dancer from Lakeland, Florida was arrested last week for allegedly posting threats about a possible mass shooting online. Brein Basarich posted on Tumblr under the username “taking lives” that she was thinking about purchasing An AR-15 and had a “vision” of a bar or club with one way out and plans and firing that rifle into a crowd. Her name has also been reported as “Brien Basarich”, I’m not sure which one is correct.

This is a poor criminal case against her… the ‘threats’ that she posted probably do not qualify as threats under Florida law. While posting something on the internet is sufficient to satisfy the “written” element, generally threats must be pretty specific, and not just generalized talk about her “visions” or conditional claims that she could do something. She will say that musing about her fantasies is not a threat, and that she has a Constitutional right under the first amendment to write about her musings, even if they might be violent or unpleasant. That fist amendment protection does not extends to “true threats“, if this qualifies. Obviously law enforcement is sensitive to the through of a shooting at a club, especially so close to where the Pulse tragedy occurred, but they would likely need something more to sustain a prosecution than has been reported so far. Without that, the prosecutors may be forced to drop the charges. It will probably be a few weeks before the filing decision is made.

If You Think You Have a Secret, You’re Probably Wrong

Thanks to the omnipresence of electronic devices in our lives today, somebody probably knows everything you do. You have a cell phone in your pocket, which is essentially a listening device, your computer might have a camera on it that is potentially watching your every move, HAL 9000 style, and you might even be wearing a smart watch that is literally following you every step. All of those are able to collect data, store it, and potentially share it with others… perhaps even authorities. It’s potentially an avenue for the government to get in your homes and bedrooms.

Much of this technology is new, and the courts are still trying to determine what the limitations are on privacy, and what the government can access and use. The latest test case is actually in Germany, where prosecutors are using data compiled by Apple iPhone’s Health App: an app that is standard and pre-installed on the last several versions of iPhone. The Defendant refused to give up his passcode, by a cyber-forensics firm was able to crack it and give the data to prosecutors.

There are a lot of issues related to this, particularly here in the United States where different Constitutional rights come in to play. Obviously, the rights to privacy, unreasonable search and seizure, and due process are involved, but a major case last year even involved First Amendment aspects. In Arkansas, James Bates was accused of killing his friend Victor Collins, who was found drowned in Bates’ hot tub. In order to strengthen their case, prosecutors sought info from his iPhone to track his phone calls, and even his smart utility meter to demonstrate his water use (they planned to argue that he had hosed down his deck).

The prosecution also went after Alexa- the digital assistant program that works with his Amazon Echo device. Alexa listens and potentially records everything within the range of its microphone, so there’s a major question whether people would have an expectation of privacy around one. The prosecutors sought to obtain the data, when Amazon itself entered the fray with another claim: that they should not have to turn over the data because it would violate the First Amendment… that it could have a chilling effect on protected expression.

Ultimately, the Bates case did not decide the matters. Kathleen Zellner, the attorney who is handling Making a Murderer’s Steven Avery’s post-conviction claims, took over the case and since her defense was not dependent on the Amazon data, waived any objection and it was turned over. Ultimately, it probably did not play a role, as additional medical and forensic reviews apparently convinced the prosecutors that there was not a murder, at least not one that could be proven, and the charges were dropped without the case having to go to trial.

In the meantime, be aware that there is the potential that the government can find out a lot about you, from your computer, your social media, your phone, your watch, your car, your video game, your pacemaker, and in this case, they didn’t just go after Alexa, they used Bates’ hot water heater to charge him with a murder.