Two of the biggest blind spots in most Americans' conception of the freedom of expression and communication pertain to soldiers and lawyers.
Far too many judges routinely presume or pretend that something gave them the power to punish lawyers for criticism that judges find merely offensive. Taking that absurd thinking to an even more absurd new level, in 2024, thirteen federal judges (led by the Fifth Circuit's Judge Ho and the Eleventh Circuit's Judge Branch) very publicly pretended that something in our Constitution somehow gave judges the power to impose extrajudicial punishment on even law students and even law schools for merely exercising their freedom of association to attend universities that also happened to be attended by other students whose expression the judges found merely offensive for personal religious reasons. See, e.g., https://davidlat.substack.com/p/columbia-law-clerk-clerkship-hiring-boycott?r=30ufvh&utm_campaign=post&utm_medium=email&triedRedirect=true
Following the example of those judges, Trump has attacked lawyers and law firms by pretending that something in our Constitution somehow gave him the power to retaliate against them for their prior exercises of the freedom of expression and communication or their current exercises of the freedom of association.
Now, Trump and his supporters are pretending that something in our Constitution somehow gave them the power to retaliate against federal employees at a government-operated newspaper for merely exercising our freedom of expression and communication (including by expressing the intention to continue exercising such freedom). But SCOTUS precedent has long emphasized the opposite, and such precedent necessarily protects even lawyers and even soldiers.
In Connick v. Myers in 1983, for example, SCOTUS re-emphasized that even "a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." No government entity has any power to "condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression."
"The First Amendment 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." It is crucial to our Constitution that the People and our public servants understand the fundamental principle that "[Speech] concerning public affairs is more than self-expression; it is the essence of self-government," which is the point of the entire U.S. Constitution. So SCOTUS repeatedly has emphasized that "speech on public issues occupies the 'highest rung of the heirarchy [hierarchy] of First Amendment values," and it "is entitled to special protection." Consistent with our Constitution, "free and open debate is vital to informed decisionmaking by the electorate."
In 2006, SCOTUS based Garcetti v. Ceballos on Connick v. Myers and emphasized the following. Any "citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens." "So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that" the government proves "are necessary for their employers to operate efficiently and effectively." It's not possible for Trump and Hegseth to prove that censoring or retaliating against employees of any newspaper for their expression is "necessary" for the U.S. Armed Forces "to operate efficiently and effectively."
Now seems like an especially appropriate time for Americans to also bear in mind the wit and wisdom of Justice Jackson writing for SCOTUS in 1943 in West Virginia State Board of Education v. Barnette (https://supreme.justia.com/cases/federal/us/319/624/).
The First and Fourteenth Amendments make it a “fixed star in our constitutional constellation” that “no official” (no public servant) “can prescribe what shall be orthodox in politics” or “religion” or “other matters of opinion or force citizens to confess by word or act their faith therein.”
The “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.”
“There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution.”
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of [all] officials [and even of all "majorities," i.e., any faction of the people, themselves] and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
The “freedoms of speech and of press” are “susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.”
"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard."
Every American should understand that "the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
Two of the biggest blind spots in most Americans' conception of the freedom of expression and communication pertain to soldiers and lawyers.
Far too many judges routinely presume or pretend that something gave them the power to punish lawyers for criticism that judges find merely offensive. Taking that absurd thinking to an even more absurd new level, in 2024, thirteen federal judges (led by the Fifth Circuit's Judge Ho and the Eleventh Circuit's Judge Branch) very publicly pretended that something in our Constitution somehow gave judges the power to impose extrajudicial punishment on even law students and even law schools for merely exercising their freedom of association to attend universities that also happened to be attended by other students whose expression the judges found merely offensive for personal religious reasons. See, e.g., https://davidlat.substack.com/p/columbia-law-clerk-clerkship-hiring-boycott?r=30ufvh&utm_campaign=post&utm_medium=email&triedRedirect=true
Following the example of those judges, Trump has attacked lawyers and law firms by pretending that something in our Constitution somehow gave him the power to retaliate against them for their prior exercises of the freedom of expression and communication or their current exercises of the freedom of association.
Now, Trump and his supporters are pretending that something in our Constitution somehow gave them the power to retaliate against federal employees at a government-operated newspaper for merely exercising our freedom of expression and communication (including by expressing the intention to continue exercising such freedom). But SCOTUS precedent has long emphasized the opposite, and such precedent necessarily protects even lawyers and even soldiers.
In Connick v. Myers in 1983, for example, SCOTUS re-emphasized that even "a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." No government entity has any power to "condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression."
"The First Amendment 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." It is crucial to our Constitution that the People and our public servants understand the fundamental principle that "[Speech] concerning public affairs is more than self-expression; it is the essence of self-government," which is the point of the entire U.S. Constitution. So SCOTUS repeatedly has emphasized that "speech on public issues occupies the 'highest rung of the heirarchy [hierarchy] of First Amendment values," and it "is entitled to special protection." Consistent with our Constitution, "free and open debate is vital to informed decisionmaking by the electorate."
In 2006, SCOTUS based Garcetti v. Ceballos on Connick v. Myers and emphasized the following. Any "citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens." "So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that" the government proves "are necessary for their employers to operate efficiently and effectively." It's not possible for Trump and Hegseth to prove that censoring or retaliating against employees of any newspaper for their expression is "necessary" for the U.S. Armed Forces "to operate efficiently and effectively."
Now seems like an especially appropriate time for Americans to also bear in mind the wit and wisdom of Justice Jackson writing for SCOTUS in 1943 in West Virginia State Board of Education v. Barnette (https://supreme.justia.com/cases/federal/us/319/624/).
The First and Fourteenth Amendments make it a “fixed star in our constitutional constellation” that “no official” (no public servant) “can prescribe what shall be orthodox in politics” or “religion” or “other matters of opinion or force citizens to confess by word or act their faith therein.”
The “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.”
“There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution.”
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of [all] officials [and even of all "majorities," i.e., any faction of the people, themselves] and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
The “freedoms of speech and of press” are “susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.”
"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard."
Every American should understand that "the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
Now seems like an especially appropriate time for Americans to bear in mind the wit and wisdom of Voltaire:
"War is the greatest of all crimes; and yet there is no aggressor who does not color his crime with the pretext of justice."
"It is forbidden to kill; therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets."