As my regular readers know, a month ago I had to return a guinea pig we adopted to the animal shelter because he did not get along with the one already at my home. For the last month, I looked at possible replacements with no success. I couldn’t immediately adopt from the same place because they have a thirty-day rule of no adoptions after returning an animal. On day thirty, I returned with my daughter Tovah, who had been with me when we adopted Squirrel last September.
We had looked online at the choices and had a difference of opinion regarding which pet to get. We ended up taking my choice because he was alone, while hers had a buddy who had come in with him. We did not want to split the two guys who were buddies and leave the guy who was alone. He had come in with two other guinea pigs, but they were shipped out. The only concern was that he was underweight. We are not so concerned since the other two guinea pigs who had come in with him were also underweight. It could have been a result of them being underfed. I am calling the new guy Squeaky. Squeaky made himself at home. The second I brought him into the house, he sat on my lap for about 15 minutes. He is acting like he has been here forever. My only fear is whether he and Squirrel will get along. Squirrel may still be traumatized by his experience with Slinky. We should find out in a couple of weeks when I try to introduce them to each other in a neutral area. I’m sure you are waiting with bated breath for the update.
Now on to my main topic. There has been a lot of discussion lately about the first amendment. Trump and his supporters have tried to use it as a basis for him to talk about the pending case involving January 6 and the election, and to excuse the criminally charged conduct. I can spend a few weeks going through the first amendment and its exceptions. However, last week, there were three separate proceedings that involved situations involving exceptions to the first amendment right. The first involved an appeal in the United States Court of Appeals DC Circuit. It involved the government wanting to obtain Trump’s tweets from (then) Twitter, now known as X. Twitter wanted to tell Trump that the government had served them with a search warrant before they turned over the tweets. Twitter argued that they had a first amendment right to do so. The Court rejected their argument using the standard of strict scrutiny. Strict scrutiny requires the government to demonstrate that a speech restriction: (1) serves a compelling government interest; and (2) is narrowly tailored to further that interest. The Court noted that “the government’s interest was particularly strong here because its ongoing investigation aimed to ferret out activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government and to assess whether that activity crossed lines into criminal culpability.” “Breaching the investigation’s confidentiality could open the door to evidence-tampering, witness intimidation, or other obstructive acts.” It was narrowly tailored in time, 180 days and the speech restricted-disclosure of the existence or contents of the warrant -was limited to information that Twitter obtained only by virtue of its involvement in the government’s investigation.
The second situation involved a dispute in the District of Columbia District Court as to what Trump can mention publicly concerning documents provided in discovery in the pending criminal matter. The concept of a protective order prohibiting dissemination of materials by definition is a limitation of free speech under the first amendment. It is undisputed that the Courts have the right to issue a protective order. The dispute was merely the scope of the protective order. Did it cover all discovery or limited to sensitive materials?
The third situation was the arraignment in Florida involving the government documents case including confidential documents held by Trump. The new charges related to obstruction. However, the indictment also includes conduct relating to classified documents. This is another exception to first amendment rights. It is well-settled law that the government can preclude the dissemination of classified material even though it limits a person’s first amendment right. Even Trump is not making a first amendment right defense in the case. He merely denies that he showed classified material to those who did not have the right to see it.
There are many statutes that criminalize speech that one could argue is protected under the first amendment, such as making threats of violence or ordering someone to commit violence, disclosing classified information that threatens national security, or screaming fire in a crowded theater. If people spent a few minutes thinking about other crimes and exceptions to the first amendment that are so enshrined in our psyche that we don’t even think about it, they will realize that a blanket first amendment defense is meritless.