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First Amendment Confrontation May Loom in Post-Roe Fight

First Amendment Confrontation May Loom in Post-Roe Fight

"Without a federal right to abortion, questions about how states can regulate speech about it suddenly become much murkier.

A demonstrator outside the Supreme Court on Sunday.
Shuran Huang for The New York Times

The Supreme Court declared clearly last week that there is no federal right to abortion. But how the decision in Dobbs v. Jackson Women’s Health Organization affects the right to talk about abortion remains far from settled, teeing up what legal experts said was a looming confrontation over whether the First Amendment allows censoring speech about a medical procedure that will become illegal in much of the country.

In states where abortion is outlawed, for instance, how can women be informed of their options elsewhere? Will media outlets be free to publish advertisements across state lines from providers operating in states where abortion has not been outlawed — as the Supreme Court long ago ruled they could? Will women be allowed to accept information about abortion if they then decide to terminate a pregnancy but don’t live in a state that allows it? What if states move to make this kind of exchange of information illegal?

“You have the right, ostensibly, to talk about abortion,” said Will Creeley, the legal director for the Foundation for Individual Rights and Expression. “The question then becomes whether that talk can be regulated if it aids and abets or encourages others to have an abortion.

“That presents a First Amendment problem,” he added. “Will you still have the First Amendment right to speak when you no longer have the constitutional right to an abortion? And that is going to get messy.”

A top anti-abortion lobbying group, the National Right to Life Committee, recently proposed model legislation for states that would make it a crime to pass along information “by telephone, the internet or any other medium of communication” that is used to terminate a pregnancy.

Many states essentially did just that before Roe v. Wade was decided in 1973. And it is not clear whether courts will find that the protections afforded to speech in the Constitution still apply to abortion rights supporters as they look to circumvent the raft of new restrictions.

Many legal scholars say such protections still should apply. It is generally not illegal to promote an activity that isn’t a crime. And since abortion will remain legal in many places, offering information about how women can obtain one legally shouldn’t become a crime, scholars said.

“There will be some tougher questions,” said Eugene Volokh, a professor of law at the University of California, Los Angeles. “Let’s say you’re deliberately advertising in a Texas newspaper and say, ‘Would you like an abortion? Go to this New Mexico abortion clinic.’ Can Texas prohibit that?”

One parallel is gambling. Casino operators in Las Vegas advertise all the time in places where the activity isn’t allowed. But the Supreme Court has permitted limits on the practice. Mr. Volokh pointed to a 1993 decision, United States v. Edge Broadcasting Co. that upheld a federal law banning advertising about lotteries in states that don’t allow them.

The last time the Supreme Court directly addressed whether these kinds of bans could apply to abortion was nearly 50 years ago, in Bigelow v. Virginia, when it invalidated a law that made it a misdemeanor to publish information that encouraged a woman to have an abortion or aided her in obtaining one.

The case dealt with a newspaper called The Virginia Weekly, which had run an ad from an abortion rights group in New York City that helped women, many from out of state, find doctors who could legally perform the procedure. “Abortions are now legal in New York. There are no residency requirements,” the ad said, promising “STRICTLY CONFIDENTIAL” services, seven days a week.

The paper’s managing editor was tried and convicted. A lower court upheld the conviction, ruling that the First Amendment didn’t protect advertisements for commercial purposes.

But the Supreme Court said that speech is not stripped of First Amendment protections if it happens to have a commercial aspect, and declared that one state like Virginia could not bar citizens from another like New York “from disseminating information about an activity that is legal in that state.”

Some First Amendment experts who support abortion rights said they would not be surprised to see states try again to criminalize such speech.

“Give it three weeks,” said Lynn Greenky, a professor at Syracuse University who teaches First Amendment issues.

Major First Amendment decisions from the Supreme Court in the past have started with cases involving abortion. In those, such as McCullen v. Coakley in 2014, the court has recognized that states can set limits on speech outside abortion clinics but also ruled that those limits cannot be so restrictive that they burden First Amendment rights.

Ms. Greenky said that First Amendment protections shouldn’t just apply to those offering counseling to women outside clinics, but also to those offering to help women get an abortion where it is legal.

“If the anti-abortion folks can speak to patients, can’t pro-choice folks counsel women who seek an abortion?” she said.

With so many issues now ripe for legislative intervention by the states, it is unclear where opponents of abortion will focus their resources and whether restricting how information can be shared will be a priority.

Mark L. Rienzi, a law professor at the Catholic University of America, posed a hypothetical that he said could test how courts might apply the First Amendment in a post-Roe world: What if New York State bought billboards in Texas offering to help women there make the journey north for a legal abortion?

Mr. Rienzi, who argued before the Supreme Court on behalf of Eleanor McCullen, who offered counseling and support to women outside clinics in hopes of persuading them not to get an abortion, said he thought Texas would be on shaky legal ground if it tried to prosecute anyone in New York for the billboard.

“The underlying thing is it’s not a crime where it’s happening,” he said.

But Mr. Rienzi added that the new legal landscape was uncharted, leaving very little certain about what laws states are now free to pass. “I think in some ways we don’t really know because the political process has essentially been jammed for 50 years,” he added."

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Elmo gets coronavirus shot, sparks another Muppet feud with Ted Cruz

Elmo gets coronavirus shot, sparks another Muppet feud with Ted Cruz

Left: Elmo (Sesame Street). Right: Sen. Ted Cruz (R-Tex.). (Mark Mann for The Washington Post) 

Young Muppet Elmo proudly got his coronavirus vaccine, weeks after the United States made the shots widely available for children under 5.

The furry red Sesame Street resident, who has been 3½ years old since 1984, acknowledged in his signature falsetto voice that there was “a little pinch, but it was okay.” His Muppet father, Louie, told Elmo, who was wearing a green bandage on his arm, that he was “super-duper” while getting his shot.

“I had a lot of questions about Elmo getting the covid vaccine. Was it safe? Was it the right decision? I talked to our pediatrician so I could make the right choice,” Louie says to the camera in a clip shared online Tuesday. “I learned that Elmo getting vaccinated is the best way to keep himself, our friends, neighbors and everyone else healthy and enjoying the things they love,” he adds, before hugging Elmo.

Sen. Ted Cruz (R-Tex.) shared the clip on Twitter — and blasted the popular PBS/HBO children’s show for allowing Elmo to “aggressively advocate for vaccinating children UNDER 5.” He added: “You cite ZERO scientific evidence for this.”

The internet was quickly filled with comments on Cruz vs. Elmo, with one person tweeting: “I’m here for the right-wing meltdown because a puppet got vaccinated.”

The Food and Drug Administration granted emergency-use authorization to coronavirus vaccines for young children this month. It cleared two vaccines — one by Moderna and the other by Pfizer and its German partner, BioNTech — for smaller doses than adults.

Cruz, along with other Republicans, was seeking more answers from the government before the authorization of the vaccines for children in this age group. The Centers for Disease Control said in announcing its recommendationthat the child vaccines have undergone “the most intensive safety monitoring in U.S. history.”

The FDA also said the shots are “safe” and “effective” but added that, along with the CDC, it would put several systems in place to “continually monitor COVID-19 vaccine safety and allow for the timely detection and investigation of potential safety concerns.”

According to the latest data from the American Academy of Pediatrics, more than 13 million child coronavirus cases have been reported since the pandemic began, making up almost 19 percent of all cases — with long-term impacts on children’s health and social well-being.

This isn’t the first time Cruz has had a run-in with a high-profile Sesame Street star. He criticized Big Bird last year, when the yellow-feathered creature got his coronavirus shot — a rift that led to a “Saturday Night Live” parody.

“Saturday Night Live” on Nov. 13 parodied “Sesame Street” with “Cruz Street,” as Aidy Bryant’s Cruz welcomed Kyle Mooney as Big Bird to spread misinformation. (Video: Joshua Carroll/The Washington Post)

“My wing is feeling a little sore, but it’ll give my body an extra protective boost that keeps me and others healthy,” Big Bird, age 6, said after his shot. Cruz tweeted that the act was “government propaganda.” President Biden weighed in, tweeting: “Good on ya, @BigBird. Getting vaccinated is the best way to keep your whole neighborhood safe.”

In a statement Tuesday, Sesame Workshop, the nonprofit educational organization behind Sesame Street, said the public service advertisement featuring Elmo was produced in partnership with the CDC and the American Academy of Pediatrics. The clip, broadcast in English and in Spanish, is part of a series of resources for parents and caregivers “to answer common questions in age-appropriate ways,” the organization said.

The nonprofit added that almost 5.7 million child cases of covid-19 were reported in the United States in 2022, “making vaccination an important step to protecting both kids and their families,” it said.

Some on Twitter berated Cruz for tweeting about the popular children’s show during the Jan 6. committee’s hearings Tuesday. “Why is a US Senator watching Sesame Street instead of doing his job?” one wrote. During the hearing, former White House official Cassidy Hutchinson revealed explosive details about President Donald Trump’s actions on Jan. 6, 2021.

Some parents said the show had inspired their own children: “Thank you, Elmo! My little girl just got her first dose! I’ll share your video too, so she gets all those good vibes you’re sending.”

Others appeared to agree with Cruz. One user said: “I blocked them, It’s gross. No more sesame street for my house.”

The Emmy-winning American show, beloved by many preschoolers and their families, has been on air since 1969, with popular inhabitants of the neighborhood including Cookie Monster, Grover and Bert and Ernie. It is now broadcast in more than 150 countries and often features celebrities.

“Many parents understandably have questions about the COVID-19 vaccines for young children, and we want to encourage them to ask questions and seek out information,” Jeanette Betancourt, senior vice president of U.S. social impact at Sesame Workshop, said in a statement.

“With help from Elmo and his dad Louie, we want to model real conversations, encourage parents’ questions, and help children know what to expect,” she added.

Sesame Street has a long history of taking on social or hot-button issues and political guests.

Among them was Jesse Jackson, who led a group of children to recite the poem “I Am Somebody” in 1971, and Barbara Bush, the first first lady to appear on the show, in 1990 (followed by Hillary Clinton, Laura Bush, Michelle Obama and Jill Biden, but not Melania Trump).

Kofi Annan became the first U.N. secretary general to visit the fictional Manhattan street, mediating a dispute between Muppets who all wanted to sing the alphabet song.

During the 2012 presidential election campaign, Republican candidate Mitt Romney sparked headlines when he said that although he liked Big Bird, he would not support continuing the government subsidy to PBS if he were elected president.“

A President Untethered


Video
2:08Trump Lunged at Secret Service Agent, Ex-White House Aide Says
Cassidy Hutchinson, an aide to former White House chief of staff Mark Meadows, testified that former President Donald J. Trump became enraged after his security detail refused to drive him to the Capitol on Jan. 6.CreditCredit...Haiyun Jiang/The New York Times




“In the final, frenzied days of his administration, Donald J. Trump’s behavior turned increasingly volatile as he smashed dishware and lunged at his own Secret Service agent, according to testimony.

Cassidy Hutchinson, an aide to former White House chief of staff Mark Meadows, testified that former President Donald J. Trump became enraged after his security detail refused to drive him to the Capitol on Jan. 6.Haiyun Jiang/The New York Times

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WASHINGTON — He flung his lunch across the room, smashing the plate in a fit of anger as ketchup dripped down the wall. He appeared to endorse supporters who wanted to hang his own vice president. And in a scene laid out by a former aide that seemed more out of a movie than real life, he tried to wrestle away the steering wheel of his presidential vehicle and lunged at his own Secret Service agent.

Former President Donald J. Trump has never been seen as the most stable occupant of the Oval Office by almost anyone other than himself, but the breathtaking testimony presented by his former aide, Cassidy Hutchinson, at Tuesday’s House select committee hearing portrayed an unhinged commander in chief veering wildly out of control as he desperately sought to cling to power and egged on armed supporters to help make it happen.

The president that emerged from her account was volatile, violent and vicious, single-minded in his quest to overturn an election he lost no matter what anyone told him, anxious to head to the Capitol to personally disrupt the constitutional process that would finalize his defeat, dismissive of warnings that his actions could lead to disaster and thoroughly unbothered by the prospect of sending to Congress a mob of supporters that he knew included people armed with deadly weapons.

A president who liked to describe himself as a “very stable genius” was anything but that as Ms. Hutchinson observed in those final, frenzied days of his time in office. Hers was not a description that surprised many of those who worked for Mr. Trump and had seen him up close in the preceding four years, or for that matter, many who had known him in the decades that preceded his life in politics. But hearing her recount it all under oath, on live television, brought home how much Mr. Trump and his White House spiraled in its perilous last chapter.

“This is f-ing crazy,” Pat A. Cipollone, his White House counsel, declared at one point on Jan. 6, 2021, as Ms. Hutchinson recalled it, when Mr. Trump was busy castigating Vice President Mike Pence rather than trying to call off the attack on the Capitol.

Mr. Cipollone was not the only one who thought so. By Ms. Hutchinson’s account, Secretary of State Mike Pompeo and other members of the Cabinet were so concerned about Mr. Trump’s behavior that they discussed invoking the 25th Amendment, used to remove a president deemed unable to discharge his duties.

Mr. Trump, who regularly accuses his critics of being “crazy” and “psycho,” bombarded his new social media site during the hearing on Tuesday with posts assailing Ms. Hutchinson and denying the most sensational anecdote she provided to the committee.

“Her Fake story that I tried to grab the steering wheel of the White House Limousine in order to steer it to the Capitol Building is ‘sick’ and fraudulent, very much like the Unselect Committee itself,” Mr. Trump wrote on his Truth Social website. “Her story of me throwing food is also false.”

A Secret Service spokesman said in a statement that the agency would respond on the record to the House committee about Ms. Hutchinson’s account of what happened in the armored car.

Secret Service officials who requested anonymity to discuss the potential testimony said that both Robert Engel, the head of Mr. Trump’s protective detail, and the driver of Mr. Trump’s sport utility vehicle were prepared to state under oath that neither man was assaulted by the former president and that he did not reach for the wheel. The officials said the two men would not dispute the allegation that Mr. Trump wanted to go to the Capitol.

Ms. Hutchinson did not witness the scene in the vehicle herself but said she was informed about it moments later by Anthony Ornato, the president’s deputy chief of staff and a former Secret Service agent, with Mr. Engel present in the room and not disputing it.

Either way, other veterans of the Trump White House who have broken with the former president said Ms. Hutchinson’s testimony resonated with their own experiences. Mr. Trump was prone to temper tantrums, slamming his hands down on his desk and screaming at advisers he considered insufficiently loyal. As Ms. Hutchinson said, his destruction of dishware during an outburst following the election was hardly the first time he had taken his wrath out on the White House china.

“His temper was scary. And swift,” Stephanie Grisham, who served as his White House press secretary and communications director and as Melania Trump’s chief of staff, said after the hearing on Tuesday. “He’d snap and almost lose control.”

She related a number of examples in her tell-all book published after she left office, and noted that when Mr. Trump descended into rage, his staff resorted to summoning an aide, nicknamed the Music Man, to play favorite show tunes they knew would soothe him, including “Memory” from the Broadway musical “Cats.”

Other presidents have exhibited erratic behavior behind the scenes, from Andrew Jackson to Lyndon B. Johnson. Richard M. Nixon threw an ashtray across the room upon learning of the Watergate break-in, and on another occasion was seen shoving his own press secretary. In the days of scandal that led up to his resignation, Nixon drank, talked to the paintings of past presidents and seemed so unstable that his defense secretary ordered generals not to carry out any orders he issued without checking with him or the secretary of state first.

Even so, it’s hard to imagine any other president accosting his own Secret Service agent, in a vain attempt to turn his vehicle toward the Capitol, so that he could march into the House chamber to object to his own election defeat.

“We never know everything that goes on behind closed doors at the White House, and presidential history is replete with boorish behavior,” said Jeffrey A. Engel, founding director of the Center for Presidential History at Southern Methodist University. “But I’m hard pressed to think of any previous instance when a president physically assaulted, or even threatened, someone charged with keeping them safe.”

Mark K. Updegrove, president of the L.B.J. Foundation and author of “Incomparable Grace,” a new book about John F. Kennedy, said he was unable to come up with a historical comparison. Johnson and Nixon “could be volatile emotionally, but nothing approaching physical violence,” he said. “Like almost everything else with Trump, this is utterly unprecedented.”

One who might know would be John Dean, the White House counsel whose own testimony during the Watergate era helped bring down Nixon. “Cassidy‘s testimony makes clear that Trump is prone to tantrums, like an undisciplined child,” he said after the hearing. “I can’t tell from her testimony if they’re controlled or uncontrolled. I suspect at his age they’re controlled tantrums.”

Mr. Trump’s mental state was a regular issue throughout his four years in office and the notion of declaring him unfit to serve through the application of the 25th Amendment came up inside his own administration even in its early months.

Bookshelves were filled with volumes speculating about his psychological health. His speech patterns were analyzed for signs of dementia. His own niece, Mary L. Trump, a clinical psychologist, declared that he had “so many pathologies” and “demonstrates sociopathic tendencies.” At one point during the 2020 campaign, he took a cognitive test to prove his mental acuity, reciting in order, “Person. Woman. Man. Camera. TV.”

Key Revelations From the Jan. 6 Hearings


Some advisers came to the conclusion that Mr. Trump deteriorated after losing the election to Joseph R. Biden Jr. on Nov. 3. Former Attorney General William P. Barr, whose public statement on Dec. 1 that there was no evidence the election was stolen prompted Mr. Trump to attack his lunch, told the House committee that the president seemed increasingly unbalanced.

“I thought, boy, if he really believes this stuff, he has lost contact with — he’s become detached from reality,” Mr. Barr testified.

The reality conveyed by Ms. Hutchinson, a top aide to Mark Meadows, the White House chief of staff, became more disturbing on the day that Congress convened to count the Electoral College votes confirming Mr. Trump’s defeat. He lashed out and gave every indication that he knew the crowd of supporters he had gathered on the Ellipse included some bent on violence. Told that some trying to attend his rally were armed, he snapped that the Secret Service should remove its magnetometers and let them in.

“You know, I don’t f-ing care that they have weapons,” Mr. Trump said in Ms. Hutchinson’s telling of the episode. “They’re not here to hurt me. Take the f-ing mags away. Let my people in. They can march to the Capitol from here. Let the people in. Take the f-ing mags away.”

The fact that he then told them to march to the Capitol, knowing they were armed, did not daunt him in the least, as far as she could tell.

He wanted to go with them and told the crowd that he would, even though advisers had pronounced it a phenomenally bad idea. “We’re going to get charged with every crime imaginable” if he headed to the Capitol, Mr. Cipollone had warned a few days earlier.

When Mr. Trump climbed into the armored presidential sport utility vehicle after his speech on the Ellipse, the Secret Service began to take him back to the White House, prompting him to erupt. “I’m the f-ing president. Take me up to the Capitol now,” he ordered.

Robert Engel, the lead agent, told him he had to go back to the West Wing. At that point, according to the account Ms. Hutchinson later heard, the president reached up toward the front of the vehicle to grab at the steering wheel. Mr. Engel grabbed his arm. “Sir, you need to take your hand off the steering wheel,” the agent reportedly said. “We’re going back to the West Wing. We’re not going to the Capitol.”

According to the version relayed to Ms. Hutchinson, Mr. Trump then used his free hand to lunge toward the agent at his clavicle. But it did not make a difference.

The president was taken back to the White House, where he watched the action of the rest of the day on television — upset not at the violence unleashed in his name but at its failure to change the election outcome.

Zolan Kanno-Youngs contributed reporting”