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Category Archives: Free Speech

Impeachable Speech

Katherine Shaw, Impeachable Speech, 70 Emory L. J.1 (2020). Available at: https://scholarlycommons.law.emory.edu/elj/vol70/iss1

“Rhetoric is both an important source of presidential power and a key tool of presidential governance. For at least a century, the bully pulpit has amplified presidential power and authority, with significant consequences for the separation of powers and the constitutional order more broadly. Although the power of presidential rhetoric is a familiar feature of the contemporary legal and political landscape, far less understood are the constraints upon presidential rhetoric that exist within our system. Impeachment, of course, is one of the most important constitutional constraints on the president. And so, in the wake of the fourth major presidential impeachment effort in our history, it is worth pausing to examine the relationship between presidential rhetoric and Congress’s power of impeachment. Although presidential rhetoric was largely sidelined in the 2019–2020 impeachment of President Donald Trump, presidential speech actually played a significant role in every other major presidential impeachment effort in our history. Prior to President Trump, three presidents had faced serious impeachment threats: Andrew Johnson, in 1868; Richard Nixon, in 1974; and Bill Clinton, in 1998 and early 1999. In each of these episodes, the debate around impeachment encompassed, among other things, public presidential rhetoric—lies and misrepresentations; statements that took aim at Congress or undermined the rule of law. In the case of Andrew Johnson, presidential rhetoric formed the basis of one of the articles of impeachment approved by the House of Representatives. In the case of Richard Nixon, the first article of impeachment approved by the House Judiciary Committee—though never considered by the full House—made extensive reference to the president’s public statements. And one of the possible offenses identified in Independent Counsel Ken Starr’s impeachment referral focused on Bill Clinton’s lies to the American people; an impeachment article tracking that recommendation was initially debated by the House Judiciary Committee, but the language regarding public speech was removed before the committee vote. These aspects of impeachment history have largely escaped scholarly notice, and they may prove instructive as both Congress and the public debate impeachment, as well as other possible constraints on presidential rhetoric and presidential power, in 2020 and beyond.”

The Capitol riot and its aftermath makes the case for tech regulation more urgent, but no simpler

TechCrunch: “Last week and throughout the weekend, technology companies took the historic step of deplatforming the president of the United States in the wake of a riot in which the US Capitol was stormed by a collection of white nationalists, QAnon supporters, and right wing activists. The decision to remove Donald Trump, his fundraising and… Continue Reading

Experts explain how disinformation online helped fuel the attack on the Capitol

Poynter – How did we get here?: “The world changed last week after rioters infiltrated the U.S. Capitol building and disrupted our legislative and democratic process. It was an event most people did not see coming, but others have worried about for months, if not years. Disinformation and misinformation researchers, online content verification analysts and… Continue Reading

Facts won’t fix this: experts on how to fight America’s disinformation crisis

The Guardian – “Trump’s false claims about the election and coronavirus are taking a dangerous toll. Can the divide be healed? At the beginning of 2021, millions of Americans appear to disagree about one of the most basic facts of their democracy: that Joe Biden won the 2020 presidential election. The consequences of Donald Trump’s… Continue Reading

House watchdog details extensive meddling with CDC Covid-19 reports

New documents show political appointees sought to influence at least 13 reports as they ignored warnings from career officials: “The House panel probing the Trump administration’s coronavirus response released new documents detailing political appointees’ extensive efforts to modify or scuttle scientific Centers for Disease Control and Prevention reports, as it also ordered top Trump health… Continue Reading

A journalist’s guide to using RCFP’s legal hotline

Reporters Committee for Freedom of the Press: “As reporters across the country covered the COVID-19 pandemic and the Black Lives Matter protests this past summer, the free legal hotline for journalists operated by the Reporters Committee for Freedom of the Press saw a huge spike in usage, reflecting journalists’ demand for legal guidance during one… Continue Reading

Information Overload Helps Fake News Spread, and Social Media Knows It

Scientific American: “…We prefer information from people we trust, our in-group. We pay attention to and are more likely to share information about risks—for Andy, the risk of losing his job. We search for and remember things that fit well with what we already know and understand. These biases are products of our evolutionary past,… Continue Reading

#Protect2020 Rumor vs. Reality

Chris Krebs, the DHS Director of Cybersecurity and Infrastructure Security Agency, was fired by President Trump on November 17, 2020. His agency’s website, “RumorControl – Mis- and Disinformation can undermine public confidence in the electoral process, as well as in our democracy,” is still online but may not continue. “This webpage is for people with… Continue Reading

The machinery of American democracy is working

The New York Times – “This article is part of Democracy by Mail, a series following the absentee-ballot process from printing to mailing to counting: “…But for the most part, mail-in balloting — and balloting at the polls, too — went smoothly and revealed two competing truths: The machinery of American democracy is working, its… Continue Reading

The November 3rd election was the most secure in American history

Statement by the DHS Cybersecurity and Infrastructure Security Agency (CISA) – the Nation’s risk advisor: “The members of Election Infrastructure Government Coordinating Council (GCC) Executive Committee – Cybersecurity and Infrastructure Security Agency (CISA) Assistant Director Bob Kolasky, U.S. Election Assistance Commission Chair Benjamin Hovland, National Association of Secretaries of State (NASS) President Maggie Toulouse Oliver,… Continue Reading

The Degradation of American Democracy And the Court

134 Harv. L. Rev. 1 Volume 134, November 10 2020 –  The Supreme Court Term 2019 – The Degradation of American Democracy — And the Court – Foreword by Michael J. Klarman. “On June 25, 2013, the Supreme Court invalidated the geographic coverage formula of the 1965 Voting Rights Act, effectively abrogating the preclearance requirement… Continue Reading

Growing Discomfort at Law Firms Representing Trump in Election Lawsuits

The New York Times via MSN – “There was Big Tobacco. There was the Bin Laden family. There was even the hated owner of the Cleveland Browns football team as he moved the franchise to Baltimore. Now Jones Day is the most prominent firm representing President Trump and the Republican Party as they prepare to… Continue Reading