On 6 January 2021 President Donald Trump spoke at a “Save America” rally in Washington D.C before Congress was set to confirm the election results in Joe Biden’s favour. Trumps speech is said to have incited groups of protesters who believed his allegations of election fraud: see the Dispatches fact checking of the speech here.
Shortly after the speech ended protestors descended on the Capitol where Joe Biden was being ratified by the electoral college as the next President of the United States. Dozens of protesters broke into the building causing the Congressmen gathered there to flee as law enforcement lost control of the situation.
President Trump tweeted during the incident- three tweets of which were labelled by Twitter as inciting violence, an unprecedented move by the social media platform to stem tweets from the account. The account was later suspended for 12 hours on the evening of Wednesday 6 January for banning Twitter Rules.
In the aftermath of the violence much responsibility has been placed on the President’s shoulders with the New York Times running a piece “Trump’s speech helped set violence at the Capitol in motion”. On Friday 8 January 2021 the President’s account was permanently banned from the Twitter platforms due to fears of further incitement of violence. This caused comments from many press outlets including The Guardian, Financial Times, Evening Standard, Bloomberg and CNN. Instagram and Facebook have also blocked the personal accounts of the US President as has YouTube. Trump has responded by taking to the POTUS account to accuse Twitter of banning free speech.
Google has banned social networking app Parler from its App Store, favoured by many Trump supports, following the violence at the Capitol– again citing fears over incitement of violence. Reuters reports and Business Insider covers the response from Parler’s CEO and Apple.
In response to the President’s actions Democrats plan to introduce an article of impeachment against Trump after his role in inciting the violence. The Washington Post, The Independent and Financial Times have coverage of the development and of the fresh calls for the impeachment of the President. Should this impeachment succeed it would make Trump the first President to be impeached twice whilst in office following his acquittal by the Republican majority Senate in early 2020 of his first impeachment. Ilya Somin has considered how Trump does not have first amendment protection against impeachment for his role in inciting violence at the Capitol.
Spectrum news considers when free speech turns into sedition. The Volokh Conspiracy blog has a piece The First Amendment Doesn’t Protect Trump Against Impeachment for his Role in Inciting the Assault on the Capitol.
Simon & Schuster have cancelled a planned book by Senator Josh Hawley, who objected to Joe Biden’s presidential election win and backed baseless claims that the vote was stolen. There is a post on this on the Volokh Conspiracy blog entitled “Cancel Culture and Freedom”.
In other news, Donald Trump’s former lawyer Sidney Powell is being sued for $1.3bn over vote rigging claims. Powell is being sued for defamation by Dominion, the company which made the voting machines for the 2020 election.
The US District Court for the Southern District of Florida has granted a motion to seal the Saudi Crown Prince’s WhatsApp telephone number in the case of Oueiss v. Bin Salman Bin Abdulaziz Al Saud. There was a post about this on the Volokh Conspiracy blog.
The Federal Communications Commission appears to have ignored President Trump’s executive order requiring it to “propose regulations to clarify” the meaning of Section 230.
Former California Democrat Congresswoman Katie Hill has sued her ex-husband, a right news blog and the Daily Mail in relation, inter alia, to the publication of nude photographs. There is a post about the case on the Volokh Conspiracy blog.
In the Courts
Anderson v. WBNS-TV, Inc., The Ohio Court of Appeals held that labelling someone as a “robber” when Police said they “may have been Involved” in robbery can be defamatory. There was a post on the Volokh Conspiracy blog.
Palin v New York Times, 17-cv-4853 (BR). District Judge Rakoff held that NY’s Anti-SLAPP law applied retrospectively to Sarah Palin’s defamation case against the New York Times. There is a case comment (and the Court’s Opinion) on the Law & Crime website and a post on the Volokh Conspiracy blog.
Nunes v Washington Post, Case 1:20-cv-01403-APM. District Judge Amit P Mehta dismissed an action for libel by Representative Devin Nunes against the Washington Post because the plaintiff has not introduced sufficient evidence of “actual malice”.
State v Casillas. The Minnesota Supreme Court reversed the decision of the court of appeals reversing the judgment of the district court finding that a “revenge porn” law (Minn. Stat. 617.261) was unconstitutional under the First Amendment, holding that the statute does not violate the First Amendment because it survives strict scrutiny. There was a post on the Volokh Conspiracy blog.
Cable News Network Inc v FBI No. 19-5278, whether FBI can continue to redact forty-some words from a declaration that it filed in district court in order to justify redactions from the Comey memos. The declaration is a judicial record as it was filed in court to influence a judicial decision. As such there is a strong presumption, but not absolute, in disclosure. The case was remanded to district court to weigh the public interest in disclosure versus continued redaction.
Doe v Trump No. 19-36020, Trump issued a proclamation banning immigrants from entering the country unless they could obtain health insurance. The Ninth Circuit decided the proclamation was in the Presidents power to make and the universal injunction was vacated.
Allen v Chanel Inc, Case 1:12-cv-06758-LAP. District Judge Loretta A Preska reversed her own earlier decision ordering search engines and websites to remove materials about an employment discrimination claim. There was a post on the Volokh Conspiracy blog.
SB v SS, No.39 2019, The Supreme Court of Pennsylvania, by a 5:2, majority upheld an injunction preventing a mother from using her own name when criticising a custody decision. There was a post criticising the decision on the Volokh Conspiracy Blog.
This Round up was complied by Suneet Sharma a junior legal professional with a particular interest and experience in media, information and privacy law.