In particular, current and former government officials have repeatedly worried that officially designating a U.S.-based group as a terrorist organization could have significant First Amendment consequences.
The First Amendment protects the rights of Americans who like spewing “hateful speech” and “assembling with others who share the same hateful views,” so “unless an organization engages solely in unprotected activity, such as committing crimes of violence, any designation of a (U.S.-based) organization as a terrorist organization … would likely run afoul of the First Amendment,” Mary McCord, the former head of the Justice Department’s National Security Division, told a House panel in January.
Back in 1989, the court divided 5-4 on the issue holding that a demonstrators’ conviction for flag desecration was inconsistent with the First Amendment. The case concerned a political demonstration during the 1984 Republican National Convention in Dallas.
The late Supreme Court Justice Antonin Scalia, whom Trump has repeatedly praised, sided with the majority that ruled, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Tensions between President Trump and Twitter escalated Wednesday as he threatened to “strongly regulate” or shut down social media platforms, which he accused of silencing conservative viewpoints.
Trump’s threats come one day after Twitter, for the first time, added a fact-check warning to a pair of his tweets. In them, Trump claimed without evidence that mail-in ballots are fraudulent. . . .
University of Miami Law Professor Mary Anne Franks said the president has little legal recourse against Twitter’s decision to fact-check his posts because the company has the right to set and enforce its own rules.
“Can a public official try to regulate or to shut down a private entity on the basis of not liking what they did?” she said. “No, that would be exactly what the First Amendment protects us against. That’s the great irony of this.”
It is unclear whether the president is legally empowered to compel the nation’s governors to take such an action. If the White House moves to enforce his order in defiance of opposition by local officials, Trump could force a constitutional clash over one of the fundamental freedoms enshrined in the First Amendment.
The Washington Post
The new restrictions are dangerous, said Anna Diakun, staff attorney with the Knight First Amendment Institute at Columbia University, which this month sued the CDC for the release of records about White House and CDC policies that may keep the agency’s employees from speaking to the press and public.
“The White House is promoting inaccurate and misleading claims about the pandemic, even as it is restricting CDC employees from speaking to the press and the public,” she said.
She told me what’s happening amounts to a “gag order” on the very experts that the public needs to hear from directly. And it may be a violation of constitutionally protected free speech.