Last year Donald Trump snidely suggested that “Second Amendment people” should take Hillary Clinton out. Now that Trump has assured the racist NRA that the imagined war on the Second Amendment is over, perhaps we can turn our attention to Donald Trump’s war on free speech and get “First Amendment people” to save the Constitution from Trump’s tyranny.
KARL: First of all, there was what he said about opening up the libel laws, Tweeting, “The failing “New York Times” has disgraced the media world, gotten me wrong for two solid years. Change the libel laws.”
That would require, as I understand it, a constitutional amendment.
Is he really going to pursue that?
Is that something he wants to pursue?
PRIEBUS: I think it’s something that we’ve looked at and how that gets executed or whether that goes anywhere is a different story. But when you have articles out there that have no basis or fact and we’re sitting here on 24-7 cable companies writing stories about constant contacts with Russia and all these other matters that (INAUDIBLE)…
KARL: Do you think the president should be…
PRIEBUS: — no basis at all…
KARL: — to sue “The New York Times.”..
PRIEBUS: I think that…
KARL: — for stories he doesn’t like?
PRIEBUS: Here’s what I think. I think that newspapers and news agencies need to be more responsible with how they report the news. I am so tired…
KARL: I don’t think anybody would disagree with that. It’s about…
PRIEBUS: But everyone…
KARL: — whether or not the president should have a right to sue them.
PRIEBUS: And I already answered the question. I said this is something that is being looked at. But it’s something that as far as how it gets executed, where we go with it, that’s another issue [“This Week” Transcript, ABC News, 2017.04.30].
When a reporter asks if the President intends to seek an amendment weakening the First Amendment, the proper response from the President’s chief of staff is, “Of course not. That’s absurd. The First Amendment is the bedrock of our democracy, the surest protection of all of our freedoms. This Administration has never considered and will never consider weakening the First Amendment, and this Administration will vigorously fight anyone who attacks our First Amendment freedoms.”
Trump’s chief of staff’s answer is, yeah, we’re thinking about it, because all you reporters are liars.
Don’t be fooled by 100 days of incompetence. Trump still has lots of time to tear uip the Constitution and wreak tyranny on our nation. We true patriots, we First Amendment people, must not tire in our resistance to this greedy, dangerous man’s threat to our liberty.
“ARYAN”—can you put that on a license plate? Not in Maryland, where “ARYAN” is one of 4,900 terms banned from vanity plates (also out in Maryland: “OLD FART” and “BEDWETR”… which could be synonyms for the Hitler Youth praiser).
Duffy, who has worked on key civil rights cases involving American Indian voting issues, said action by the state means that any personalized plate must be recalled because of a single complaint, no matter what the message.
“What this means is that every atheist can now wipe out anything that seems to refer to God,” Duffy said. “Will vanity plates for members of the armed forces suddenly be declared offensive if they offend a single pacifist? It’s absolutely preposterous.”
Even obscenity must be judged by the mores and standards of a community, not just one offended individual, Duffy said.
“Here, all we need is one lone citizen who is apparently invested with the complete authority to determine what is good taste and decency for all the rest of us,” he said. “It seems a little tyrannical to me” [Kevin Woster, “State Looks to Pull Anti-Bush License Plate,” Rapid City Journal online, May 3, 2007].
So, for your evening civics discussion, should the state allow apparent declarations of racist sentiment on its license plates?
In suffering judicial suspension of its second Muslim immigration ban, the Trump Administration may be learning that words matter. Specifically, Donald Trump doesn’t get to spend over a year publicly declaring his intention to discriminate against Muslims and then pretend that, just because he signs an Executive Order that doesn’t use the words Muslim, Islam, or religion, he’s not discriminating against Muslims.
Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim [Judge Derrick Watson, Order Granting Motion for Temporary Restraining Order, State of Hawai’i and Ismail Elshikh v. Donald J. Trump et al., #1:17-cv-00050-DKW-KSC, 2017.03.15, pp. 28–29].
The Government argued to the Court that the Executive Order can’t be religiously motivated, because “the six countries represent only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population…. [T]he suspension covers every national of those countries, including millions of non-Muslim individuals[.]”
In a delicious one-liner that reasonable observers may apply for the rest of Trump’s rein, “The illogic of the Government’s contentions is palpable” [p. 30].
The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its Establishment Clause analysis to a purely mathematical exercise. See Aziz, 2017 WL 580855, at *9 (rejecting the argument that “the Court cannot infer an anti-Muslim animus because [Executive Order No. 13,769] does not affect all, or even most, Muslims,” because “the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution” (citation omitted)). Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries. It is undisputed, using the primary source upon which the Government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%.12 It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam. Certainly, it would be inappropriate to conclude, as the Government does, that it does not [Order, 2017.03.15, pp. 30–31].
The Court cites numerous public statements from Trump (see here, here, here, and here) and Rudy Giuliani (here) to show that we need not delve into any “veiled psyche” or “secret motives” to conclude from the “plainly worded statements” of Trump and his Administration that the President’s second attempt to ban immigrants from six Muslim nations is driven by “religious animus”—and that, says the Establishment Clause, is not cool.
Words matter. Donald Trump’s own words have rightly sunk both of his (let’s call them what they are) Muslim bans.
The Senate put a cork in Senator and paid Trump consultant Neal Tapio‘s pro-Trump/anti-Islam grandstanding yesterday. After allowing Watertown’s Trump spokesman his eight minutes of pathetic rhetorical stemwindings (complete with a tearful breaking voice as he declared serving “the most courageous President in a generation… an honor of my life”) over SCR 15, the Senate heard Senator Ryan Maher’s motion to table the resolution. A tabling motion is not debatable, so it is the quickest way to shut down debate and move on. The Senate voted 20–15 to drop Tapio’s false fearmongering and get on with not raising teacher pay.
My Trumpy District 3 Senator Al Novstrup voted against the tabling, evidently wanting to spend more time on this useless grandstanding resolution. The more sensible Republican Senator Deb Peters was among those saying enough already:
If you recall the Bible and the story about the Good Samaritan’s parable and how you should treat your neighbors… that has always been the way that my husband and I have been raising our family, that’s how I was raised, and so I felt like it was not in concurrence with how I was raised, and so I did vote no on that [Senator Deb Peters, in Dan Peters, “Statement Supporting Trump Dumped by South Dakota Lawmakers,” KSOO, 2017.03.07].
Senator Tapio came armed to the verbal teeth for the SCR 15 battle with his prepared remarks and a press packet.* Bob Mercer observes a small irony:
And hey! I check the journal from yesterday and find that the Senate showed some good sense and killed SB 134! Prime sponsor Senator Lance Russell tried to save the bill with an amendment limiting the public school resources restricted from use for political purposes and exempting school board members and administrators, but that amendment only made clearer that Russell’s target all along was us darn teachers. The full Senate voted SB 134 down 8–27. Good riddance!
One of the losing Yeas was my fellow substitute teacher Brock Greenfield. Come on, Brock! Show us some professional solidarity! And now, without SB 134, think of all the fun things you can say about me when you sub in social studies!
Poppycock. There are no protestors running to Pierre or Bismarck and begging the governors for more protection. Cheyenne River Sioux Chairman Harold Frazier, Crow Creek Sioux Tribal Chairman Brandon Sazue, and others who supported the Dakota Access protest came to Pierre to testify against SB 176 Tuesday, only to be rebuffed by the Governor who purports to be acting in their best interest.
If the Governor is concerned about lawbreaking protestors, then by definition there must already be laws under which those breakers can be busted. SB 176 is thus unnecessary.
To tackle hardcore protestors who get arrested but believe so firmly in their cause that they’ll return to the protest to resume their stand against whatever corporate beast has provoked their rages, the Governor would create a whole new crime, “aggravated trespassing,” which would dish out stiffer penalties for such repeat protestors. I can see the argument that if some bad dude trespasses on my property once, gets hauled off by cops, then gets out of jail and comes back to tromple my lawn again, maybe that bad dude needs a stiffer second penalty to get the message across that he should stop trespassing.
But Governor Daugaard isn’t creating a new second-trespass penalty to protect regular citizens from return trespassers on their private property. The Governor would impose this second-trespass penalty only in his emergency-power “public safety zones.” SB 176 isn’t about everyday public safety; SB 176 is about making protest a crime.
SB 176 is actually an attack on our property rights. Suppose TransCanada comes barreling through West River with Keystone XL a few months from now. Suppose John Harter, whose land TransCanada gets to build through thanks to eminent domain, invites protestors to come camp on his West River ranch and hurl invective at the pipeline builders as they commit their atrocity. The land along the route is entirely Harter’s; with Harter’s permission, the protestors have every right to occupy his land and shout over the easement fence at the pipeliners. Yet SB 176 allows Governor Daugaard to seize (without due process!) all of Harter’s land within a mile of the pipeline route, kick everyone off, including Harter himself, and arrest Harter and his guests if they try to return to Harter’s land.
Senators have softened SB 176 a touch, removing the referendum-resistant emergency clause and adding a July 1, 2020, sunset clause. But it’s still a bad bill.
If you have private property or if you have something to say, you shouldn’t feel protected by Senate Bill 176. You should feel your First and Fifth Amendment rights under attack. The Senate passed it 21–14, so now it’s time to call your Representatives and read them the Bill of Rights.
Our Republican legislators wag their fingers at us voters for passing Initiated Measure 22, which they repealed on the insistence that it was unconstitutional. But when they want to pass their own limits on campaign finance, Republican leaders gleefully ignore concerns about constitutionality.
The unconstitutional nature of HB 1074 is its obvious violation of the First and Fourteenth Amendments. Freedom of speech applies to every citizen, regardless of home state. South Dakota cannot say, “South Dakotans can say X but Minnesotans cannot.” In this case, “say X” happens to be “write a check for $150,000 to SD Voice to promote Cory’s I&R amendment.”
Representative David Lust tried to make this point in House State Affairs, calling the $100K cap on out-of-state contributions to ballot question committees “censorship.” Speaker G. Mark Mickelson insists that the state has a compelling interest (key phrase to use when trying to override the First and Fourteenth Amendments) in limiting out-of-state contributions, but the case law Mickelson wishfully dismisses says no way:
University of Chicago Law School professor William Baude said he doubts it would survive a court challenge.
The U.S. Supreme Court declared in a 1981 decision that limits on contributions to ballot measure committees are unconstitutional under the First Amendment, said Paul S. Ryan, a vice president at the Washington watchdog Common Cause, which opposes big money in politics.
The high court has said that contributions to candidates can be limited to prevent the corruption of public officials, Ryan said. But, he said, the court found that with a ballot measure, unlike a candidate, there is nobody to corrupted, so there’s no legal justification for limiting donations [James Nord, “South Dakota Tries to Limit Outsiders’ Money in Initiatives,” AP via Pierre Capital Journal, 2017.02.15].
That ruling suggests Mickelson and friends can’t even impose the uniform cap on contributions to ballot question committees that Secretary of State Shantel Krebs originally proposed in Senate Bill 54. Amendments have stripped that cap from SB 54.
Contributions to a statewide ballot question committee from a person who is not a resident of the state at the time of any contribution, a political committee that is organized in a state other than South Dakota, or any other organization that is not filed as a domestic entity with the secretary of state for the four years preceding a contribution may not exceed one hundred thousand dollars in the aggregate for a general election cycle [2017 HB 1074, Section 1, excerpt, as amended 2017.02.15].
If I’m a billionaire who wants to plunk over $100K into a South Dakota ballot question committee, I can show a little foresight, organize an entity in the state this year, and be ready to pour unlimited funds into a petition drive in 2021. Or I can hire a lawyer or Lisa Furlong to organize a political committee for me in South Dakota and start transferring money right now. Or I can call up MyDakotaAddress.com in Madison, rent a mailbox, and establish my personal South Dakota residency in days.
Those holes in HB 1074 will render it useless in stopping what Mickelson and friends say they want to stop. The Constitution says they can’t stop what they want to stop. But when HB 1074 comes to the House floor this week, these Republicans will continue to insist that their desire to rein in initiative and referendum is worth a losing fight in court.
Last week Rep. Tim Goodwin withdrew his offensive House Bill 1145, the vague “no-go zone” bill based on Breitbartian Islamophobia. I’m glad to see that bill gone, due to the probably unintended threat it posed to public protest and other First Amendment activities.
Officials including Daugaard have talked with Gov. Doug Burgum’s administration to hear about North Dakota’s experience handling the protests and what the state would have done differently, Chief of Staff Tony Venhuizen told The Associated Press on Wednesday.
“We’ve seen what we’ve seen in North Dakota, and we want to be prepared,” Venhuizen said. “We certainly understand that there may be people who want to peacefully protest, and it’s nobody’s intention to prohibit that or prevent that, but those need to be controlled so that they don’t endanger public safety or public property or private property” [James Nord, “North Dakota Pipeline Protest Spurs South Dakota Legislation,” AP via McClatchy, 2017.02.15].
The Constitutionally problematic text of SB 176 is right up front:
Upon the occurrence of an event that may consume significant public resources, poses a threat to public or private property, and poses a threat to the health and welfare of the public, the Governor may declare any location within the state to be a public safety zone and issue an order authorizing any action provided for under § 34-48A-5, 34-48A-6, 34-48A-32, 34-48A-34, 34-48A-36, 34-48A-41, 34-48A-46, 34-48A-47, 34-48A-48, 34-48A-49, 34-48A-51, or 34-48-53, without declaring an emergency or disaster, within the public safety zone and within one mile thereof [2017 SB 176 as amended by Amendment 176oa, Section 1, 2017.02.15].
“Significant public resources” is not defined. Under our current tight budget (but hey, when is South Dakota’s budget not tight?), I could reasonably contend that any consumption of public resources, budgeted or unexpected, is significant. One can argue that any gathering of protestors has the potential to devolve into a ruckus that could break a window or spread the flu.
SB 176 Section 3 creates a new category of trespassing for disobedient citizens in a protest/war zone, “aggravated criminal trespass,” a Class 1 misdemeanor which carries an unsuspendable sentence of ten days in county jail. Commit the same trespass again within two years, and Section 4 busts you for a Class 6 felony. Section 5 says similar protest trespassing in any other state counts as your first offense, so anyone who got arrested at the Standing Rock protest and comes to South Dakota to make trouble over Keystone XL during the coming months could be busted for felony trespass.
And for good measure, the Governor wants this bill passed with an emergency clause, thus denying the public the opportunity to refer this assault on First Amendment rights. I am unclear on what pressing danger threatens “public peace, health, and safety” and thus justifies this emergency clause… and if the Governor can’t invoke the emergency clause with restraint, can we trust him to invoke his expanded emergency powers under SB 176 with restraint?
SB 176 is an overreaction to the vigorous resistance staged by our Indian neighbors and their allies to the Dakota Access pipeline, and maybe to the huge protest movement against the tyrant in the White House and the milquetoast Republicans facilitating his reign. If ruckus turns to riot, the Governor and South Dakota law enforcement already have enough legal authority to intervene. Now is no time to put the Constitution at greater risk. Let’s chuck SB 176’s emergency powers and emergency clause and save state strength for real problems.
For some reason, Rep. Goodwin, a conservative Republican who should be keenly interested in protected Constitutional rights from an overreaching central government, thinks we need a state law that authorizes the Attorney General to ban protest from public or private spaces.
Section 1 of HB 1145 would define something Goodwin calls “no-go zones”:
For purposes of this Act, a no-go zone is a contiguous geographical area consisting of public space or privately owned public space where community organizing efforts systematically intimidate or exclude the general public or public workers from entering or being present within the area.
Hmm… “public space” or “privately owned public space”… in other words, almost anywhere outside of private houses and office buildings? Public parks, courthouses, and the Capitol, certainly.
But what sort of “community organizing efforts” does Goodwin think “systematically intimidate” the general public or public workers? “Public workers” would certainly include Goodwin himself as a legislator. As evidenced by some of the hyperventilations I heard from Republican Senators on HB 1069 yesterday, Republican legislators seem to take political criticism as a personal attack. If legislators decide to deem stern criticism, or angry protestors shouting outside the Capitol, or an airplane circling Pierre with a banner, have we created a “no-go zone”?
And what’s that about “being present”? If some friends and I stand in a park, we inherently prevent others from “being present” in that patch of the park. If we hold picket signs or hand out flyers or make statements to passersby that explain our disgust with certain public officials, our speech may make the objects of our displeasure and their supporters not want to “be present” in the park. Does our public demonstration thus automatically create a “no-go-zone”?
Now, given that fuzzy definition, look what Rep. Goodwin wants to do with no-go zones:
If the attorney general receives a complaint of a no-go zone, the attorney general is authorized to investigate the existence of a no-go zone. If the attorney general determines that a no-go zone exists within a municipality or a county, then the attorney general shall deliver to the United States Department of Justice a report that outlines the basis for such a determination. The attorney general, in coordination with the United States Department of Justice and local law enforcement, shall take all steps necessary to eliminate the no-go zone to enforce compliance with state and federal law.
Let’s translate HB 1145: If I step out of my house and say things that make Rep. Goodwin feel bad, Rep. Goodwin can complain to the Attorney General, and the Attorney General can shut me up by silencing me or removing me from that space.
Actually, the A.G. can “take all steps necessary to eliminate the no-go zone.” That’s stunningly unlimited authority. Eliminate the no-go zone—mass arrests? Quarantine by riot squad? Closure of parks, sidewalks, parking lots, universities, shopping malls, protest camps? Seizure of private property usually open to the public? Bulldozing of offending facilities? Airstrikes by the 114th Fighter Wing?
Stepping back from the hyperbole (but not much—the vagueness of Goodwin’s language demands clarification), we can safely say that HB 1145 appears to be redundant and unnecessary. I’m pretty sure that if I’m crossing the line from First Amendment speech to disorderly conduct, riot, or other illegal activity, current state law and local ordinances give local police and state troopers all the authority they need to remove me and restore the public’s right to go about its business. We don’t need vague “no-go zones” granting the Attorney General unlimited authority to shut down speech that one person finds bothersome.
Whether Goodwin is overreacting to vigorous exercise of the First Amendment or to the Islamophobia of his Republican base, his HB 1145 reeks of unconstitutional authoritarianism. I used to think we could count on conservatives not to fall for such Big-Brother legislation. Alas, no more.
p.s.: Then again, maybe HB 1145 could have a bright side. I know lots of liberals young and old who feel Republicans have organized communities in South Dakota to systematically intimidate all sorts of members of the general public—Democrats, intellectuals, Muslims, Indians, homosexuals, transgender people, vegetarians, atheists—from entering or being present within South Dakota. Pass HB 1145, and liberals could file a complaint with the Attorney General to declare the entire state of South Dakota a “no-go zone.”
Update 19:40 CST: The Council on American-Islamic Relations criticized the Tennessee no-go-zone bill in 2015:
In March, CAIR issued another Tennessee action alert calling on state representatives to oppose a state bill (HB 1141 and SB 1040) which would have vilify the state’s Muslim community by directing the Tennessee attorney general to eliminate imaginary “no-go zones.”
Rep. Goodwin is the lead House sponsor on Senator Stace Nelson’s Senate Concurrent Resolution 7, which “urge[s] and request[s] law enforcement and governmental agencies in South Dakota to avoid and suspend all contacts and outreach activities with the Council on American Islamic Relations.”
KSFY recorded an interview with a former intern revealing disgraced former Representative Mathew Wollmann’s sexual misconduct with Legislative interns during his two years in the Legislature. So far, KSFY has only released an audio clip from this interview, with the source’s voice disguised. However, KSFY reporter Bridget Bennett’s statement to Wollmann that KSFY had this video drive Wollmann to finally end his denials and admit at least some sexual misconduct.
On Monday, January 23, Representative Timothy Johns, chairman of the House Select Committee empaneled to investigate and discipline Wollmann, signed a subpoena demanding that KSFY “immediately produce… any electronic video or audio recording in its unedited form of any interview of Intern John or Jane Doe discussing any alleged misconduct by Representative Mathew Wollmann or other members of the Legislature….”
KSFY refused to comply. Attorney Steven W. Sanford sent this reply to Chairman Johns Monday evening:
As an initial matter, the House Select Committee on Discipline and Expulsion does not have the authority to subpoena KSFY. The House Rules, which the subpoena invokes, governs [sic] the conduct and operations of House Members during each session. Undoubtedly, the Select Committee can require Members and staff to comply with legislative subpoena. However, nothing in the rules, South Dakota statutes, or the South Dakota Constitution provides the House or this Select Committee with the authority to compel citizens not employed by the House to appear and surrender their property in response to a subpoena issued under the House Rules [Steven Sanford, representing KSFY, e-mail to Rep. Timothy Johns, 2017.01.23].
Senator Larry Tidemann might agree with attorney Sanford; those of us who thought the Legislature should have subpoenaed Joop Bollen’s EB-5 records might disagree.
Much more fun is Sanford’s stand for journalistic freedom:
Moreover, the subpoena specifically seeks a journalist’s unpublished information from a confidential source. The right of journalists to protect their sources from compelled disclosure to the government is clearly established under South Dakota law and the First Amendment to the U.S. Constitution. See Hopewell v. Midcontinent Broad. Corp., 538 N.W.2d 780 (S.D. 1995). The subpoena threatens the independence of the… free press, and its ability to provide information to the public without government impediment, that the journalist’s privilege is designed to protect [Sanford to Johns, 2017.01.23].
Hopewell established a “qualified privilege” for journalists to protect their sources in South Dakota, depending on five criteria:
NATURE OF THE LITIGATION. Disclosure is more appropriate if the news person is a party (not merely a witness), particularly in libel cases.
RELEVANCE. The information must go to the heart of the lawsuit.
ALTERNATIVE SOURCES. The plaintiff must exhaust all alternative methods of getting the information.
IMPORTANCE OF CONFIDENTIALITY. In matters of great public importance where the risk of harm is substantial, the court should protect confidential informants who fear exposure and retaliation if they reveal criminal and unethical conduct to the public even if the plaintiff has no other way to obtain the information.
In an apparent appeal to Hopewell‘s third criterion, Sanford contended that the Select Committee already had “complete access to all people who may have knowledge of the matters under investigation.” This access is demonstrated by LRC Director Jason Hancock’s January 19 letter to all 2015 and 2016 interns inviting them to testify before the Select Committee. The Select Committee did not subpoena any intern; it thus seems odd that the Select Committee would try to compel one intern’s testimony via the KSFY subpoena.
KSFY requested the Select Committee withdraw the subpoena; absent that withdrawal, KSFY signaled it would fight the subpoena in court. The Select Committee certified Wollmann’s violation of Legislative Joint Rules and dissolved itself without resolving the subpoena.