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Tag: First Amendment

  • He was arrested for making a joke on Facebook. A jury just awarded him $205,000 in damages.

    He was arrested for making a joke on Facebook. A jury just awarded him $205,000 in damages.

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    On a Friday in March 2020, a dozen or so sheriff’s deputies wearing bulletproof vests descended upon Waylon Bailey’s garage at his home in Forest Hill, Louisiana, with their guns drawn, ordered him onto his knees with his hands “on your fucking head,” and arrested him for a felony punishable by up to 15 years in prison. The SWAT-style raid was provoked by a Facebook post in which Bailey had made a zombie-themed joke about COVID-19. Recognizing the harm inflicted by that flagrantly unconstitutional arrest, a federal jury last week awarded Bailey $205,000 in compensatory and punitive damages.

    “I feel vindicated that the jury agreed that my post was satire and that no reasonable police officer should have arrested me for my speech,” Bailey said in a press release from the Institute for Justice, which helped represent him in his lawsuit against the Rapides Parish Sheriff’s Office and Detective Randell Iles, who led the investigation that tarred Bailey as a terrorist based on constitutionally protected speech. “This verdict is a clear signal that the government can’t just arrest someone because the officers didn’t like what they said.”

    On March 20, 2020, four days after several California counties issued the nation’s first “stay-at-home” orders in response to an emerging pandemic, Bailey let off some steam with a Facebook post that alluded to the Brad Pitt movie World War Z. “RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER,” he wrote, that “IF DEPUTIES COME INTO CONTACT WITH ‘THE INFECTED,’” they should “SHOOT ON SIGHT.” He added: “Lord have mercy on us all. #Covid9teen #weneedyoubradpitt.”

    The Rapides Parish Sheriff’s Office snapped into action, assigning Iles to investigate what he perceived as “an attempt to get someone hurt.” According to a local press report, the authorities were alarmed by “a social media post that promoted false information related to the ongoing COVID-19 pandemic.” In response, “detectives immediately initiated an investigation,” and as a result, Bailey, then 27, was “arrested for terrorism.”

    Another news story reported that Bailey “was booked into the Rapides Parish Detention Center on one count of terrorizing.” William Earl Hilton, the sheriff at the time, explained why, saying he wanted to “impress upon everyone that we are all in this together, as well as remind everyone that communicating false information to alarm or cause other serious disruptions to the general public will not be tolerated.”

    Bailey’s joke was deemed to pose such a grave and imminent threat that Iles did not bother to obtain an arrest warrant before nabbing him, just a few hours after Bailey’s facetious appeal to Brad Pitt. But in a probable cause affidavit that Iles completed after the arrest, the detective claimed that Bailey had violated a state law against “terrorizing,” defined as “the intentional communication of information that the commission of a crime of violence is imminent or in progress or that a circumstance dangerous to human life exists or is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; or causing evacuation of a building, a public structure, or a facility of transportation; or causing other serious disruption to the general public.”

    Bailey was apologetic when the sheriff’s deputies confronted him, saying he had “no ill will towards the Sheriff’s Office” and “only meant it as a joke.” He agreed to delete the offending post after Iles said he otherwise would ask Facebook to take it down. But that was not good enough for Iles, who hauled Bailey off to jail anyway.

    For very good legal reasons, the Rapides Parish District Attorney’s Office declined to prosecute Bailey. But when Bailey sued Iles for violating his constitutional rights and making a false arrest, U.S. District Judge David C. Joseph dismissed his claims with prejudice, concluding that his joke was not covered by the First Amendment, that the arrest was based on probable cause, and that Iles was protected by qualified immunity.

    That doctrine allows civil rights claims against government officials only when their alleged misconduct violated “clearly established” law. Joseph thought arresting someone for a Facebook gag did not meet that test. “Publishing misinformation during the very early stages of the COVID-19 pandemic and [a] time of national crisis,” he averred, “was remarkably similar in nature to falsely shouting fire in a crowded theatre.”

    That was a reference to Schenck v. United States, a 1919 case in which the U.S. Supreme Court unanimously upheld the Espionage Act convictions of two socialists who had distributed anti-draft leaflets during World War I. Writing for the Court, Justice Oliver Wendell Holmes Jr. said, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

    Holmes’ much-abused analogy, which had nothing to do with the facts of the case, was not legally binding. And in the 1969 case Brandenburg v. Ohio, the Supreme Court modified the “clear and present danger” test it had applied in Schenck—a point that Joseph somehow overlooked. Under Brandenburg, even advocacy of criminal conduct is constitutionally protected unless it is “directed” at inciting “imminent lawless action” and “likely” to do so—an exception to the First Amendment that plainly did not cover Bailey’s joke.

    With help from the Institute for Justice, Bailey asked the U.S. Court of Appeals for the 5th Circuit to overrule Joseph, which it did last August. Writing for a unanimous 5th Circuit panel, Judge Dana M. Douglas said Joseph “applied the wrong legal standard,” ignoring the Brandenburg test in favor of the Supreme Court’s earlier, less speech-friendly approach.

    “At most, Bailey ‘advocated’ that people share his post by writing ‘SHARE SHARE
    SHARE,’” Douglas wrote. “But his post did not advocate ‘lawless’ and ‘imminent’ action, nor was it ‘likely’ to produce such action. The post did not direct any person or group to take any unlawful action immediately or in the near future, nobody took any such actions because of the post, and no such actions were likely to result because the post was clearly intended to be a joke. Nor did Bailey have the requisite intent to incite; at worst, his post was a joke in poor taste, but it cannot be read as intentionally directed to incitement.”

    Another possibly relevant exception to the First Amendment was the one for “true threats,” defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” In a deposition, Iles claimed to view Bailey’s post as threatening because it was “meant to get police officers hurt.” The joke was especially dangerous, he said, because there were “a lot of protests at the time in reference to law enforcement.”

    As Douglas noted, that claim was patently implausible “because Bailey was arrested in March 2020, while widespread protests concerning law enforcement did not begin until after George Floyd’s murder in May 2020.” In any case, Bailey’s joke clearly did not amount to a true threat.

    “On its face, Bailey’s post is not a threat,” Douglas writes. “But to the extent it could
    possibly be considered a ‘threat’ directed to either the public—that RPSO deputies would shoot them if they were ‘infected’—or to RPSO deputies—that the ‘infected’ would shoot back—it was not a ‘true threat’ based on context because it lacked believability and was not serious, as evidenced clearly by calls for rescue by Brad Pitt. For the same reason, Bailey did not have the requisite intent to make a ‘true threat.’”

    Furthermore, the 5th Circuit held, Iles should have known that Bailey’s post was protected speech. “Based on decades of Supreme Court precedent,” Douglas said, “it was clearly established that Bailey’s Facebook post did not fit within one of the narrow categories of unprotected speech, like incitement or true threats.” Iles therefore could not find refuge in qualified immunity.

    The appeals court rejected Iles’ claim that he had probable cause to arrest Bailey, whose conduct clearly did not fit the elements of the crime with which he was charged. “Iles is not entitled to qualified immunity,” Douglas wrote, “because no reasonable officer could have found probable cause to arrest Bailey for violating the Louisiana terrorizing statute in light of the facts, the text of the statute, and the state case law interpreting it.”

    The 5th Circuit also thought Bailey plausibly claimed that Iles had retaliated against him for exercising his First Amendment rights. As Douglas noted, “Iles admitted that he arrested Bailey at least in part because of the content of his Facebook post, rather than for some other conduct.” And it was clear that Bailey’s speech was chilled, since he agreed to delete the post after Iles told him the sheriff’s office otherwise “would contact Facebook to remove it.”

    That decision did not assure Bailey of victory. It merely gave him the opportunity to persuade a jury that Iles had violated his First Amendment rights and the Fourth Amendment’s prohibition of “unreasonable searches and seizures.” The 5th Circuit said he also could pursue a state claim based on false arrest.

    Last week’s verdict against Iles and the sheriff’s office validated all of those claims. “It is telling that it took less than two hours for a jury of Mr. Bailey’s peers in Western Louisiana to rule in his favor on all issues,” said Andrew Bizer, Bailey’s trial attorney. “The jury clearly understood that the Facebook post was constitutionally protected speech. The jury’s award of significant damages shows that they understood how Mr. Bailey’s world was turned upside down when the police wrongly branded him a terrorist.”

    Institute for Justice attorney Ben Field noted that “our First Amendment rights aren’t worth anything if courts won’t hold the government responsible for violating them.” Bailey’s case, he said, “now stands as a warning for government officials and as a precedent that others can use to defend their rights.”

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    Jacob Sullum

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  • Disney can’t prove DeSantis retaliated against it, federal judge rules

    Disney can’t prove DeSantis retaliated against it, federal judge rules

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    A federal judge dismissed Disney’s lawsuit against Florida Gov. Ron DeSantis on the grounds that the entertainment giant did not have sufficient standing to bring the First Amendment challenge.

    In the lawsuit, Disney argued that DeSantis had unconstitutionally retaliated against the company by organizing a state takeover of the special taxing district that had been created in 1967 and covered the 25,000-plus acres now occupied by the Walt Disney World resort’s theme parks, hotels, and various other facilities. Disney claimed that DeSantis had engaged in a “relentless campaign to weaponize government power against Disney” in response to Disney’s then-CEO Bob Chapek publicly criticizing DeSantis’ approval of a law that restricted discussion of sexual orientation and gender identity in schools.

    In Wednesday’s ruling, federal Judge Allen Winsor wrote that Disney fell short of proving the retaliation claim. Disney, he wrote, “has not alleged any specific actions the new board took (or will take) because of the governor’s alleged control.”

    In a statement, DeSantis’ spokesman Jeff Redfern said Wednesday’s ruling vindicated the governor’s view that “Disney is still just one of many corporations in the state, and they do not have a right to their own special government.”

    Meanwhile, Disney has vowed to appeal the ruling. “This is an important case with serious implications for the rule of law, and it will not end here,” the company said in a statement. “If left unchallenged, this would set a dangerous precedent and give license to states to weaponize their official powers to punish the expression of political viewpoints they disagree with.”

    Indeed, DeSantis may have prevailed within the letter of the law, but there is little doubt that his actions toward Disney were a direct response to Chapek’s criticism. We know this because DeSantis has said and written as much.

    “When Disney first came out against the bill…people in the legislature started floating this idea of going after Reedy Creek,” DeSantis told The American Conservative in an interview published in May. Meanwhile, DeSantis wrote extensively about his fight with Disney in his recent book, The Courage To Be Free, and leaves little doubt about how he approached the issue. In one passage, DeSantis writes that “things got worse for Disney” after the company criticized his policies. Finally, in a Wall Street Journal op-ed last February, DeSantis explained that his administration’s actions toward Disney were an attempt to “fight back” against the corporation’s so-called “woke ideology” as expressed in Disney’s criticism.

    Winsor says those actions don’t meet the legal standard for being unconstitutional. Fine. It’s still deeply distasteful for a governor to target a private company because its leaders dared to criticize his policy choices—and DeSantis’ handling of this situation should not become a model for other chief executives, no matter what the courts have to say about it.

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    Eric Boehm

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  • A turning point for free speech?

    A turning point for free speech?

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    Two hundred and forty-seven years ago last week, General George Washington rallied his beleaguered troops at Valley Forge with a public reading of Thomas Paine’s The American Crisis, which reminded them, “These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country.” Where is Paine now when we need him?

    Freedom of speech on American college campuses is now facing great challenges in the aftermath of the October 7 Hamas attacks on Israel and Israel’s bombardment of Gaza. According to some, the outpouring of ugly, inexplicable, and vituperative speech unleashed by these events means that now is the time to abandon the concept of free speech at our universities. Apparently, to these “sunshine constitutional scholars,” speech can only be free if it is polite and unchallenging.

    Without a doubt, the past two and a half months have been a complete shitshow: clueless students excusing butchery and war crimes; feckless university presidents whose past records exhibit little concern for First Amendment limits now invoking the need to protect free expression; and opportunistic politicians who seemingly lack any understanding of constitutional constraints grandstanding their way through the misery and trying to impose plainly unconstitutional restrictions on student speech.

    The campus reactions were kicked off with an October open letter from the Harvard Graduate Students for Palestine and the Palestine Solidarity Committee, which began: “We, the undersigned student organizations, hold the Israeli regime entirely responsible for all unfolding violence.” That opening salvo presaged a tsunami of impassioned rhetoric from all sides of the conflict, with some pro-Palestinian groups praising the October 7 invaders as “martyrs” and chanting slogans like “from the river to the sea Palestine will be free” and “by any means necessary.” Others, justifiably horrified at the hostage taking and the atrocities committed in the October attack, responded with harsh rhetoric of their own, sometimes blurring the distinction between condemning the terrorist organization Hamas and attacking all Palestinians. 

    In this toxic atmosphere, clashes on campus and in the streets have brought to the surface many repulsive ideas, and some actions that go beyond the “uninhibited, robust, and wide-open” debate which “may well include vehement, caustic, and sometimes unpleasantly sharp attacks” that the First Amendment protects. For example, police arrested a Cornell University student for allegedly authoring online posts threatening Jewish students that included the claim he would “bring an assault rifle to campus and shoot all you pig jews.” Some pro-Palestinian activists ripped down posters with pictures of hostages held by Hamas. In November, three young Palestinian men were shot and injured near the University of Vermont, an incident federal authorities are investigating as a possible hate crime.

    Erwin Chemerinsky, dean of the University of California, Berkeley, Law School and a foremost constitutional scholar, wrote in the Los Angeles Times shortly after the war erupted, “I am a 70-year-old Jewish man, but never in my life have I seen or felt the antisemitism of the last few weeks.” Supporting Chemerinsky’s sense of things, the Anti-Defamation League documented a 388 percent increase in U.S.-based antisemitic incidents during the first two weeks of the war. At the same time, the Council on American-Islamic Relations found a 216 percent increase in reports of anti-Muslim or anti-Arab bias over the last year.

    Ever since Winston Churchill apocryphally said “never let a good crisis go to waste,” politicians have clamored for ways to turn misfortune to their advantage. And just as nature abhors a vacuum, officeholders can’t stand a missed opportunity—especially if there is a camera nearby. So it came as no surprise when the House Committee on Education and the Workforce convened a televised hearing on December 5 entitled, “Holding Campus Leaders Accountable and Confronting Antisemitism.” The “gotcha” moment came when Rep. Elise Stefanik (R–N.Y.) asked the presidents of Harvard University, the Massachusetts Institute of Technology (MIT), and the University of Pennsylvania whether “calling for the genocide of Jews” violates each university’s code of conduct, demanding that each provide “a yes or no answer.” 

    The presidents gave legally correct but tone-deaf responses that the answer was “context-dependent” and that such speech might be actionable if it crossed the line and became misconduct, such as targeted discriminatory harassment. All true, but not a satisfactory answer to a trick question.

    Stefanik’s query was not presented as an honest attempt to elicit thoughtful responses for how to address a difficult and complex problem, either as it was framed or in its demand for a yes or no answer. Nor was it a serious request for guidance on how to draw the line between angry or hateful speech that the First Amendment protects and the limited and carefully defined categories it does not, such as incitement, true threats, or discriminatory harassment. Rather, she asked whether the school policies permitted “calls for genocide” with the embedded assumption that student chants of “intifada” were the same thing.

    The ploy had its intended effect. The three presidents all stumbled into the trap by accepting the unstated premise, thus opening the door to charges that they were insensitive to the demonstrable rise in antisemitism on campus and hypocritical for citing free speech principles when—let’s face it—the institutions they lead had shown a notable lack of concern for the First Amendment in the enforcement of their speech codes.

    As private schools, Harvard, Penn, and MIT are not bound to follow the First Amendment, but historically they have tried to pay some lip service to it. In practice, however, their records have been abysmal. Harvard and Penn scored at the bottom of the Foundation for Individual Rights and Expression’s (FIRE) latest campus free speech report, and MIT, while in the middle of the pack among the schools surveyed, has a history of selective enforcement against speech it disfavors.

    This mix of hypocrisy and insensitivity to the problem prompted an immediate backlash, including a House resolution calling for the ouster of all three presidents. The White House even weighed in with a statement. Within a couple of days, Penn President Liz Magill resigned (along with the chair of the school’s board of trustees). “One down, two to go,” Stefanik scoffed on X (formerly known as Twitter), although to date, Harvard President Claudine Gay and MIT President Sally Kornbluth have retained their positions.

    But the reactions extended far beyond this amateurish episode of performative outrage. How could they not, with this much political gold to mine? In late October, Florida Republican Gov. Ron DeSantis directed the chancellor of the state university system to “deactivate” campus chapters of Students for Justice in Palestine based on the spurious assertion that their advocacy violated state and federal laws against providing material support for terrorists. The state paused its ban of the organization after a warning letter from FIRE (and, reportedly, after consulting its lawyers), but it continues to defend its actions in court.

    Meanwhile, New York Democratic Gov. Kathy Hochul sent a letter warning all state university presidents that the state will bring “aggressive enforcement action” against institutions that fail to “address” those who call “for the genocide of any group of people.” The governor’s letter erroneously asserted that such speech necessarily violates the prohibition of discriminatory harassment prohibited under Title VI of the Civil Rights Act.

    But such speech isn’t against the law unless the conduct at issue is targeted toward particular students or groups and is “so severe, pervasive, and objectively offensive” that those on the receiving end are effectively denied equal access to an institution’s resources and opportunities. Simply espousing hateful ideas doesn’t meet this test. Nor does doing so amount to incitement or a “true threat,” neither of which the First Amendment protects. It all depends on the context in which such speech was used.

    And there it is—context—the word that cost Magill her job. The very mention of it launched Stefanik’s theatrical tirade against nuance and her mic-drop conclusion that “this is the easiest question to answer ‘yes,’ Ms. Magill.”

    Of course, it is not easy to sit in the spotlight and endure a grilling from a politician in high dudgeon. And Magill might be forgiven for failing to spot the trick in Stefanik’s line of questions. But then, one might not be expected to give a good answer to complicated First Amendment questions if you lack a history of defending free expression. And it didn’t help that Magill stumbled through her answer with what appeared to be a self-satisfied smile.

    What should she have said? Chemerinsky supplied a thoughtful suggestion in the Los Angeles Daily Journal: 

    “I would have said that advocacy of genocide of Jews is repugnant, blatantly inconsistent with the values of my school, and must be immediately condemned by campus officials. I would have expressed that as a Jew, who had family members perish in the Holocaust, I am especially sensitive to such advocacy. But I also would have said that the First Amendment protects hate speech and allows all ideas and views to be expressed, including deeply offensive ones. Even advocacy of genocide is within the speech protected by the First Amendment. There, however, also is a point at which the advocacy is so pervasive that it becomes harassment or that it may be expressed in such a way that it is a true threat that is unprotected by the First Amendment.”

    To be fair, Magill and the other university presidents touched on similar themes, but not with Chemerinsky’s clarity or consistency.

    Some may take issue with the idea that university officials should take a position on such matters as being in tension with the University of Chicago’s 1967 Kalven Report, which concluded the “university is the home and sponsor of critics; it is not itself the critic.” But Chemerinsky’s proposed answer represents one principled and nuanced way of addressing this emotionally charged subject.

    One might charitably offer that if Magill had been able to take more time to consider her position, she might have come up with an answer that matched Chemerinsky’s genuine empathy for the anguish that can be caused by hateful speech that also combined his deep understanding that First Amendment exceptions must be limited, narrowly defined, and consistently applied. But that’s not what happened.

    Given time to reconsider, Magill only made matters worse by posting a video to X in which she backed off from Penn’s asserted commitment to First Amendment values. She said the school’s speech code policies in the past “have been guided by the Constitution and the law,” but that now, the university would “immediately” initiate “a serious and careful look at our policies” to change all that. Magill’s capitulation was not enough to mollify her political critics, though, and she vacated her position within days of her Neville Chamberlain impersonation.

    Unfortunately, Magill was not alone in concluding it was time to give up on the First Amendment. Writing in The Washington Post a few days after Magill’s resignation, Claire Finkelstein, chair of Penn Law School’s committee on academic freedom, and member of the school’s Open Expression Committee, complained that “the value of free speech has been elevated to a near-sacred level on university campuses.” But enough of all that.

    Finkelstein called Magill’s initial halting defense of free expression “profoundly wrong,” and, noting that Penn is not bound by the First Amendment, added, “In my experience, Penn has never actually followed the First Amendment, even to a close approximation.” This—sadly—is true, as FIRE’s surveys have shown. But it is a good thing, according to Finkelstein, who argues the university should double down on its abandonment of constitutional principles.

    She suggested it was time for university presidents “to rethink the role that open expression and academic freedom play in the educational mission of their institutions.” Why? Because too much free speech on campus “emphasizes skills that pose the greatest challenge to our democracy.” Accordingly, she proposed a crackdown not just on calls for genocide, but also on proxy statements and the “ability to shout intemperate slogans” that might foster a hostile environment.

    Even more thoughtful commentators, like The Washington Post’s Ruth Marcus, have suggested that free speech may be a good thing and all, but that “the full contours of the First Amendment” should not apply “in the university setting.” Apparently, the times are just too tough or university students too fragile to endure the rigors that come with freedom of speech.

    But just the opposite is true. The principles some may be willing to toss aside or dilute were not forged in tranquil times. First Amendment protections against the “heckler’s veto” emerged not from some mannered theoretical discussion of political theory but from a case involving a near riot that erupted in response to a firebrand priest’s intemperate condemnation of communists and Zionist Jews, among other targets. Police struggled to keep a crowd of 1,500 demonstrators at bay as they surged toward the auditorium trying to break in, hurling bricks and other objects at the windows.

    In the aftermath, Father Arthur Terminiello was prosecuted for disturbing the peace for igniting the hostile reaction, but the Supreme Court reversed his conviction. It was not enough that his words “invited dispute,” the Court reasoned, because “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Such protections are based on the understanding that “speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”

    The university setting is precisely the place where these lessons need to be learned and reinforced. As the Supreme Court stressed over six decades ago, “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” These principles emerged from the ideological struggles of the Joseph McCarthy era, the demands by students to discuss social issues in the Berkeley free speech movement, the campus demonstrations for civil rights and against the Vietnam War in the 1960s and ’70s, and numerous political disputes since then. As the Kalven Report concluded during the campus turmoil of the 1960s, “A good university, like Socrates, will be upsetting.”

    There is no need to infantilize students by telling them they are simply too brittle to fully participate in the heated debates going on in the world around them. Instead, we need clear leadership from university presidents and others that stresses our commitment to free expression. This commitment must remain strong especially in turbulent times, and this includes developing a resilience against what Justice Oliver Wendell Holmes Jr. described in 1919 as “opinions that we loathe and believe to be fraught with death.”  And we also need leaders who understand the difference between protected but distasteful speech and violence, vandalism, and attempts to block or shut down opposition speakers.

    The situation will not improve by adopting some half-assed version of the First Amendment to shield university students from offense. Far from being “the greatest challenge to our democracy,” as Finkelstein and others suggest, understanding and experiencing the rigors of uninhibited free speech is necessary to the functioning of our democracy. Or, as Washington Post columnist Jason Willick put it, “The academy’s decline will continue until it can produce leaders with the strength to break the ideological frenzy that has taken hold. That will mean rejecting identity politics, cracking down on mobs that disrupt and vandalize, but defending protected speech to the hilt.” 

    None of this is easy. These are indeed times that try men’s and women’s souls. But as Justice Robert Jackson wrote in another time of crisis, “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” 

    Restricting speech about the world’s most pressing problems does not make them go away, nor does it settle any disputes. We defend First Amendment principles not because the Supreme Court said so in some dusty old casebook, but because experience has taught us that the price of jettisoning them is higher.

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    Robert Corn-Revere

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  • How FDR emasculated the black press in World War II

    How FDR emasculated the black press in World War II

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    With the notable exception of the internment of Japanese Americans, World War II still has a reputation as a “good war” for civil liberties. In 2019, for example, the authors of a leading history survey text declared that “Franklin Roosevelt had been a government official during World War I. Now presiding over a bigger world war, he was determined to avoid many of the patriotic excesses.”

    But President Roosevelt’s civil liberties abuses extended far beyond the internment camps. There are few better examples of this than the government’s campaign against the black press. Historian Patrick Washburn, the leading authority on that topic, concluded in A Question of Sedition: The Federal Government’s Investigation of the Black Press During World War II that “the black press was in extreme danger of being suppressed until June 1942.”

    The government’s motive was no mystery. The black press had tirelessly documented Jim Crow conditions in the military, federal medical facilities, and defense industries, as well as acts of violence against black troops. These were stories their readers wanted. When William Hastie, the law school dean at Howard University, asked 56 black leaders soon after Pearl Harbor to summarize the general attitudes of African Americans, a stunning 36 said that most did not completely support the war effort.

    A leading outlet for this criticism was the Pittsburgh Courier, best known for publicizing the Double V campaign (fighting for democracy simultaneously at home and abroad). A vigorous supporter of this effort was the libertarian writer Rose Wilder Lane, who contributed a regular column for the paper. The Courier was not an outlier in its willingness to question government policy. During this period, the New Deal loyalist Archibald MacLeish, who served as both Librarian of Congress and director of the War Department’s Office of Facts and Figures, forwarded to Attorney General Francis Biddle “seditious” articles from the Washington, D.C., Afro-American and suggested “a very useful preventive effect, if your department could somehow call attention to the fact that the Negro press enjoys no immunity.” A month later, the president urged both Biddle and Postmaster General Frank C. Walker to personally admonish black editors to cease “their subversive language.”

    Matters came to a head in June 1942, when Biddle summoned John H. Sengstacke—the publisher of The Chicago Defender and the president of the National Newspaper Publishers Association (NNPA), an African American group—to his office. Placed on the table before Sengstacke were copies of several leading black papers, including the Defender, the Courier, and the Baltimore Afro-American. Biddle declared them seditious, and warned that the government was “going to shut them all up.” Sengstacke suggested a compromise: The newspapers might be willing to tone it down if the government agreed not to issue indictments—and agreed to give black journalists more access.

    Biddle verbally assented, and thereafter black publishers muted their willingness to question wartime abuses. A federal study of content in the Pittsburgh Courier, for example, showed that the paper devoted considerably less space to the Double V campaign in April 1943 than in August 1942. Moreover, the main targets of negative coverage over that period shifted away from the federal government and to local governments and private businesses. A postal inspector identified a noticeable weakening in “the vigorness [sic] of its complaints” about discrimination.

    But despite Biddle’s promise, the authorities did not become more cooperative in sharing information with black journalists. This bureaucratic stonewalling led a frustrated Sengstacke to question if “the government really wants sincere cooperation or whether there are clandestine forces working against the interest of a section of the Negro Press.”

    While federal authorities did not bring legal charges against the black press for the balance of the war, that doesn’t mean they shifted to a hands-off approach. Instead, they ratcheted up both intense monitoring and informal pressure. In the first half of 1942, FBI agents visited leading black newspapers that had carried critical stories about the federal government. Moreover, postal inspectors admonished two leading papers that the “benefits of citizenship” carried an obligation not to “‘play up’ isolated and rare instances in such a fashion as to obstruct recruiting and in other ways hamper the war effort.”

    Federal officials seemed particularly upset about the articles of George S. Schuyler, an editor and columnist at the Courier. Rated as particularly offensive were his arguments that the status quo offered no hope for “liberty, equality, and fraternity” and that the “Negrophobic philosophy, originating in the South, had become the official policy of the government.” An official at the Department of Justice reacted to these statements by urging the Office of War Information to take “action” against the paper.

    Schuyler was especially forceful in challenging the internment of Japanese Americans: “This country probably has as many of its citizens in concentration camps as has Germany.” He rejected accusations that those interned, whom he described as industrious and thrifty, presented any sort of genuine national security threat. Schuyler admonished African Americans to look beyond their own grievances, because “if the Government can do this to American citizens of Japanese ancestry, then it can do this to American citizens of ANY ancestry….Their fight is our fight.”

    Schuyler was exceptional in depicting the plights of African Americans, Japanese Americans, and right-wing sedition defendants as analogous and interdependent. The Roosevelt administration, he concluded, was persecuting the latter for what they “said and wrote,” and had presented no evidence of collusion or participation in a conspiracy. If these individuals could be put on trial for opposing the administration’s policies, he asked, “then who is safe? I may be nabbed for speaking harshly about Brother [Secretary of War Henry L.] Stimson’s treatment of Negro lads in the Army.”

    In the end, informal pressure suited the government’s purposes far better than direct legal punishment. As a Department of Justice analysis pointed out, the likely result of taking legal action against “a paper as prominent and as respected by the Negro population as the Pittsburgh Courier” would be “further unrest and possibly [arousing] a spirit of defeatism among the Negro population.” It also would have almost certainly alienated many black voters from Roosevelt in key Northern states: The Courier had the highest circulation of all black newspapers and had provided past support for Roosevelt. So instead of indulging in politically risky sedition prosecutions of the black press, the government relied on more indirect methods of behind-the-scenes manipulation and intimidation to quiet criticism. 

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    David T. Beito

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  • Trump Isn’t Bluffing

    Trump Isn’t Bluffing

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    Mandel Ngan / Getty

    We’ve become inured to his rhetoric, but his message has grown darker.

    Editor’s Note: This article is part of “If Trump Wins,” a project considering what Donald Trump might do if reelected in 2024.

    “We pledge to you that we will root out the Communists, Marxists, fascists, and the radical-left thugs that live like vermin within the confines of our country, that lie and steal and cheat on elections,” Donald Trump said this past November, in a campaign speech that was ostensibly honoring Veterans Day. “The real threat is not from the radical right; the real threat is from the radical left … The threat from outside forces is far less sinister, dangerous, and grave than the threat from within. Our threat is from within.”

    David A. Graham: Trump says he’ll be a dictator on “day one”

    What immediately leaps out here is the word vermin, with its echoes of Hitler and Mussolini. But Trump’s inflammatory language can overshadow and distract from the substance of what he’s saying—in this case, appearing to promise a purge or repression of those who disagree with him politically.

    Explore the January/February 2024 Issue

    Check out more from this issue and find your next story to read.

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    This sort of language isn’t entirely new. Trump spoke in Manichaean terms throughout his first campaign and term, encouraging chants to lock up Hillary Clinton in 2016, and in 2018 referring to undocumented immigrants as “animals” who would “infest our country.” Over time, the shock of Trump’s rhetoric has worn off, making it easy to miss the fact that his message has grown even darker.

    Trump himself has changed, too—the old Trump seemed to be running for office partly for fun and partly in service of his signature views, such as opposition to immigration and support for protectionism. Today’s Trump is different. His fury over his 2020 election defeat, the legal cases against him, and a desire for revenge against political opponents have come to eclipse everything else.

    From the January/February 2024 issue: David Frum on the revenge presidency

    In the past few months, the former president has described himself as a “very proud election denier.” He has repeatedly threatened and intimidated judges, witnesses, prosecutors, and even the family of prosecutors involved in the cases against him, going so far as to say that his legal opponents will be consigned to mental asylums if he’s reelected. He has suggested that the man he picked for chairman of the Joint Chiefs of Staff deserves to be executed on grounds of treason. He’s called for investigating NBC and possibly yanking the network off the air, also on grounds of treason—one of his most direct attacks on the First Amendment. And he’s vowed to arrest and indict President Joe Biden and other political opponents for no apparent reason other than that they oppose him.

    The fact that Trump’s ideas have become more authoritarian is not yet fully appreciated. One reason is people have heard Trump say outlandish things for so long that they can’t identify what’s new, or they’ve become numb. Another is venue: Once Trump left the White House and stopped tweeting, his vitriol became less noticeable to anyone who didn’t attend his rallies, seek out videos of them, or join Trump’s own Truth Social network.

    Even when a comment is so extreme that it does break into the mainstream, what happens next is predictable. The first time Trump says something, people react with shock and compare him to Hitler. The second time, people say Trump is at it again. By the third time, it becomes background noise—an appalling but familiar part of the Trump shtick.

    David A. Graham: Trump isn’t merely unhinged

    This is just the sort of “normalization” that Trump’s critics warned against from the start, but it’s also a natural human response to repeated exposure. The result is that Trump has been able to acclimate the nation to authoritarianism by introducing it early and often. When a second-term President Trump directs the Justice Department to lock up Democratic politicians or generals or reporters or activists on flimsy or no grounds at all, people will wring their hands, but they’ll also shrug and wonder why he didn’t do it sooner. After all, he’s been promising to do it forever, right?

    This article appears in the January/February 2024 print edition with the headline “Trump Isn’t Bluffing.”

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    David A. Graham

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  • Mississippi makes it a crime to advertise legal medical marijuana businesses

    Mississippi makes it a crime to advertise legal medical marijuana businesses

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    Clarence Cocroft is the owner of a legal medical marijuana business in Olive Branch, Mississippi. However, while his business is perfectly legal, the state is hell-bent on making it practically impossible for him to actually stay afloat. How? By making it a felony for Cocroft to advertise his business. 

    Mississippians overwhelmingly voted to legalize medical marijuana in 2020, yet the state has enacted a series of regulations that make it virtually guaranteed that legal marijuana businesses will fail to thrive. Not only does the state have a gauntlet of restrictive regulations that make finding an appropriate storefront extremely difficult (marijuana businesses cannot be within 1,000 feet of a church, school, or daycare, for example), but once a business opens, they’re barred from nearly all forms of advertisement. 

    Under state law, medical marijuana businesses are banned from advertising through an extremely extensive range of media, including print media, television, radio, social media, mass text and email, and billboards. Signage for businesses themselves is also restricted. Not only are businesses prohibited from displaying their products in store windows, but storefront advertising cannot include cannabis leaf or bud imagery. Even websites are restricted to only providing the business’ “contact information, retail dispensing locations, and a list of products available,” as well as “general information reasonably expected to be necessary to serving qualified patients of the Medical Marijuana Program.”

    The price for slipping up is high—violators face felony charges.

    This week, the Institute for Justice, a public interest law firm focused on government abuse, filed a lawsuit challenging the regulations by arguing they violate business owners’ First Amendment rights.

    “Taken together, these provisions constitute a complete prohibition . . . on all forms of advertising not explicitly and specifically permitted by the Mississippi Medical Marijuana Act,” the lawsuit writes.

    The rules have been devastating for Cocroft as he attempts to keep his business running. After successfully securing a storefront that met the state’s stringent requirements, he has struggled to bring in customers—something made even harder by the fact that his store, Tru Source, is located in an industrial park with little foot or vehicle traffic.

    “It is common for clients to call Tru Source and ask for directions the first time they go. Tru Source employees have to provide these clients with landmarks and step-by-step directions to find the dispensary. But for the Ban, Clarence would place signage on major roads near the dispensary to provide directions,” the complaint reads. “As a result of Defendants’ ban, Tru Source has struggled to reach its desired clientele, cannot promote its products or its location, and has sustained and will continue to sustain significant harm.”

    “The Department’s complete ban on advertising and marketing in any media violates the First Amendment of the United States Constitution by prohibiting business owners like Clarence from engaging in truthful commercial speech to promote their legal businesses,” the complaint argues. “By banning truthful and non-misleading advertisements about a legal product, the Department of Health has abridged Plaintiffs’ freedom of speech and the freedom of speech of anyone else similarly situated.”

    While the citizens of Mississippi voted to make medical marijuana legal, state lawmakers enacted labyrinthine rules that make actually running a thriving legal cannabis business practically impossible. The state’s ban on advertising goes far beyond any legitimate policy aim and clearly violates business owners’ First Amendment rights. 

    By enacting these regulations, Mississippi lawmakers are likely to get the outcome they really want—a status quo in which medical marijuana is technically legal but nearly impossible to obtain legitimately, meaning that patients will once again be forced to look to the black market to find the products they need.

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    Emma Camp

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  • Lauren Boebert called out by Dem for referring to Constitution as “junk”

    Lauren Boebert called out by Dem for referring to Constitution as “junk”

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    Democratic Representative Maxwell Frost called out his Republican colleague Lauren Boebert for previously referring to the U.S. Constitution as “junk” during a House subcommittee hearing Wednesday.

    Frost’s statements came out during a hearing for the House Oversight Subcommittee on National Security, the Border, and Foreign Affairs, which heard from a group of witnesses Wednesday as part of its proceedings on global religious extremism. Democrats on the subcommittee invited Amanda Taylor, executive director of the Baptist Joint Committee for Religious Liberty, to testify at the meeting.

    Taylor told House members during her testimony that Christian nationalism—the belief that the U.S. is defined by Christianity—is the “single greatest threat to religious liberty in the United States today.” Some conservatives have argued that the Republican Party should embrace Christian nationalists, including Georgia Representative Marjorie Taylor Greene, who has previously described herself as one.

    Colorado Representative Lauren Boebert arrives to a Republican caucus meeting at the U.S. Capitol on September 13, 2023, in Washington, D.C. Boebert was called out for previously referring to the Bill of Rights of the U.S. Constitution as “junk” during a House Oversight subcommittee hearing on Wednesday.
    Anna Moneymaker/Getty Images

    While prompting questions to Taylor, Frost spoke about how Christian nationalism posed a threat to Democratic institutions, and Taylor agreed.

    “And this threat to Democracy has made its way to Congress,” Frost said, making mention of Greene’s past statements that praised the political ideology.

    “My colleague, Representative Lauren Boebert, said, ‘The church is supposed to direct the government,’” Frost continued, quoting Boebert. “‘The government is not supposed to direct the church. I’m tired of this separation of church and state junk.’”

    “Junk being the Constitution and Bill of Rights,” Frost asserted.

    Newsweek on Wednesday reached out to Boebert’s press office via email for comment on Frost’s statement.

    Frost was quoting a statement Boebert made in June 2022 during a speech to the Cornerstone Christian Center in Basalt, Colorado, in which Boebert told the crowd: “The reason we had so many overreaching regulations in our nation is because the church complied.”

    “The church is supposed to direct the government,” Boebert continued. “The government is not meant to direct the church. That is not how our Founding Fathers intended it. And I’m tired of this separation of church and state junk, that’s not in the Constitution. It was in a stinking letter, and it means nothing like what they say it does.”

    Boebert was referring to an 1802 letter written by Thomas Jefferson to the Danbury Baptist Association, in which he called for the separation of church and state. Under the First Amendment of the U.S. Constitution, Congress is not permitted to make laws “respecting an establishment of religion, or prohibiting the free exercise thereof.”

    Boebert’s statements were previously condemned by political experts, including Andrew Seidel of Americans United, who told The Denver Post at the time, “We are about to get a very brutal real-world lesson in what it’s like to live in a country that doesn’t have that separation.”

    The congresswoman has also faced calls from American Christians to resign and repent after indirectly making a death wish toward President Joe Biden. In a petition posted in March, the online Christian community Faithful America said Boebert was “known for weaponizing religion to seize power and restrict the rights of anyone different than her,” and that her comments regarding Biden was an “entirely new level.”