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Sunday, April 16, 2017

Donald Trump's First Amendment

This tweet from early this morning captures it: Someone should look into who paid for the small organized rallies yesterday. The election is over!

Let's break this out:

• There is something wrong with people paying or accepting money to engage in First Amendment activity. The source of the funds should be investigated, disclosed, and (perhaps) sanctioned.

• There is something wrong with organized rallies or other peaceable assemblies.

• The only opportunity people have to express their political preferences is during an election. Once the election is over, the First Amendment runs out and it is inappropriate to take to the streets to criticize the President.

Posted by Howard Wasserman on April 16, 2017 at 05:29 PM in First Amendment, Howard Wasserman | Permalink



Erdogan Claims Vast New Powers After Narrow Victory in Turkish Referendum

Posted by: TheYoungTurks | Apr 17, 2017 2:29:01 AM

So when Obama tells us we can keep our health plan, he's speaking metaphorically. But when Trump tells us the election is over, he's planning on gassing the Jews?

Posted by: Dial9 | Apr 17, 2017 1:27:38 AM


One of the far-left “anti-fascist” groups behind last week’s riot in Berkeley, Refuse Fascism, received $50,000 from a group backed by socialist billionaire George Soros, according to the Daily Caller.

Posted by: RefuseSoros | Apr 17, 2017 12:11:02 AM

I think the point is that Obama actually silenced people, whereas Trump is only criticizing people.


Both of Obama's nominees were part of the 5-4 majority.

Posted by: LicensePlatesArentTheGovernment | Apr 16, 2017 11:50:14 PM

You are in no way obligated to make any comments. I recognize the distinction between criticizing the content of speech and the fact of speech. You are welcome to read Trump as getting at the former. I read him as getting at the latter. Because he has been making the point about every critical protest since January 21.

Posted by: Howard Wasserman | Apr 16, 2017 10:42:13 PM

Lois Lerner effectively committed TREASON, and the only thing you can attack Trump on is a tweet?

Posted by: DeweaponizeTheIRS | Apr 16, 2017 10:07:44 PM

"There is something wrong with people paying or accepting money to engage in First Amendment activity."

No, according to all four of Reagan's justices, who Trump's justice Gorsuch is supposed to be like--Rehnquist, O'Connor, Scalia, and Kennedy--in Meyer v. Grant (1988), paid petition circulation is protected by the First and Fourteenth Amendments.

Posted by: PickOnAStrawmanYourOwnSize | Apr 16, 2017 9:58:46 PM

Here's the police standing down


Posted by: StandUpPolice | Apr 16, 2017 8:44:49 PM

I guess this is where I make my obligatory comment that you are yet again confusing a criticism of the content of some speech (a totally okay thing for people to engage in that in no way implicates the First Amendment, see, e.g., this comment on this blog post or this blog post on Trump's tweet) with a claim that that speech is or ought to be legally unprotected ("Once the election is over, the First Amendment runs out"), or at least hyperbolically muddling the two for rhetorical effect. Trump is suggesting that the continued litigation of campaign issues about the successful candidate is normatively undesirable, in the same way that, had Hillary won, certain people would be arguing that continuing to politicize Benghazi or her emails is a waste of time aimed at spuriously delegitimizing the duly elected President. I probably don't agree with him in this instance but the comment has nothing more to do with the First Amendment than Scalia's famous suggestion that people stop talking about Bush v. Gore and "get over it."

Posted by: Asher Steinberg | Apr 16, 2017 8:28:50 PM

"There is something wrong with organized rallies or other peaceable assemblies."

Is this how you define peaceable, professor?

"Eleven people were injured with at least six taken to a hospital for treatment, including one stabbing victim."


Posted by: StoptheStabbings | Apr 16, 2017 7:38:38 PM

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