God and Country

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The photo above shows the church where I exercise my First Amendment right to worship as I am called to. On April 15, 2009, many of us gathered at the Georgia State Capitol under the protection of our right to assemble. Most weekdays in January through April we may petition the legislative branch of our state government. And on this blog, as well as other place online and off, we exercise our rights to free speech and to publish opinions and information that the government may not like.

(Before you say it, SOGTP, the Supreme Court held in Gitlow v . New York that the Fourteenth Amendment to the Constitution extends the protections of the First Amendment to the states. Love it or hate it, I don’t make the rules.)

I’ve written here recently about the pitched battle between Atlanta Progressive News and the Atlanta City Council.

Now, the Fulton County Daily Report is covering the actions of the City of Atlanta Law Department as it sought and received in Fulton County Superior Court a prior restraint (subscription required) against APN’s publication of the infamous memoranda.

On Aug. 9, Cardinale began reporting on his news site about a series of memos sent by city lawyers to council members, some drafted before he had filed his lawsuit and some after. Although Cardinale didn’t post copies of the memos on his site, his Aug. 9 story discussed in some detail an April 4 email Senior Assistant City Attorney Kristen Denius sent to Councilwoman Felicia Moore, copying city council members and staff and others in the city Law Department.

When they saw the memos quoted on Cardinale’s site, the city’s lawyers asked for their memos back. Cardinale, who said he received the memos from a confidential source, refused.

So on Aug. 12 they sent Baxter a motion for a temporary injunction to keep Cardinale from discussing or publishing the memos further, at least until the court could hold a hearing. The lawyers argued the memos could be damaging to the city’s attempts to settle a potential lawsuit by the state Law Department over related issues.

Baxter granted the temporary injunction but set the matter for a Monday hearing. According to Cardinale and Dow Lohnes lawyer Lesli N. Gaither, who sat in on the hearing on behalf of the Georgia First Amendment Foundation, the city quickly withdrew its request for a permanent injunction Monday, given the memos already had been posted over the weekend by Todd Rehm on the Georgia political blog Peach Pundit.

The city moved to hold Cardinale in contempt over the possibility that he had violated the temporary injunction by giving the memos to Peach Pundit. But Cardinale was able to show Baxter emails that proved he gave Rehm the memos before Baxter entered his order, and Baxter denied the contempt motion.

Allow me a moment to discuss the idea of “prior restraints”. A prior restraint is a form of government censorship that prevents someone from saying something the government doesn’t like or publishing information the government wishes to keep from the citizens. A prior restraint is considered particularly loathsome because it prevents an idea from being heard and either accepted or rejected, it prevents a citizen from sharing information and accepting whatever consequences might attend. It is inimical to the”marketplace of ideas,” an analogy to the free markets that we all cherish around here.

In New York Times Co. v. United States, the United States Supreme Court rejected the lower courts imposition of restraining orders preventing a newspaper from publishing government documents obtained in a questionable manner. This case, also known as The Pentagon Papers case, is frequently cited for the principle that prior restraints are usually unconstitutional.

In Nebraska Press Ass’n v. Stuart, the Supreme Court expanded on the Pentagon Papers case to state in that “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment Rights.” A concurring opinion stated that prior restraints could issue against the media only if the government could show that such publication would present a “clear and present danger” in that case to a defendant’s Constitutional right to a fair trial. Another concurring opinion by Justice Lewis F. Powell articulated a nearly identical standard.

Given these clearly articulated standards for the government imposing a prior restraint, it should be only under the most extraordinary and exigent circumstances that an American government would seek to impose a prior restraint. Unfortunately, the Law Department of the City of Atlanta doesn’t seem to think so. In this case, what was at stake from the City’s perspective was its strategic position in a pending lawsuit that might be brought by Attorney General Sam Olens to force the City Council to abide by the Open Meetings Act.

But, you say, you guys are the press, are you? You’re not “legitimate media” to quote another government official or two.

Chief Justice Hughes, writing for the Supreme Court in Lovell v. City of Griffin, which originated in Georgia, stated that “[t]he press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion.”  That sounds like us.

Hollie Manheimer, Executive Director of the Georgia First Amendment Foundation, which filed an amicus brief against the prior restraint, told the Daily Report that “[t]here is more room for blogger and citizen action now, and we expect that role and activity to grow.”

How far was the City Law Department willing to go to defend their right to break the law?

The City Law Department is apparently so embarrassed at having their ass hat handed to them by a non-lawyer that they are willing to attempt to harass and intimidate Cardinale. In my opinion, they are using armed guards to prevent Matthew Cardinale from exercising his First Amendment right to petition his government. Shame on them.

The City of Atlanta government appears to have pulled out all the stops in its assault on the First Amendment rights of one of its citizens. They’re also willing to harass and attempt to intimidate Peach Pundit, or at least its most annoying contributor.

In this Motion, the City requested to take depositions of APN’s Editor, Rehm of Peach Pundit, and an activist named Robert Schreiber, who sent the Peach Pundit blog post to the City.

In its Motion, the City provided a screenshot of Rehm’s Facebook page, as well as a series of posts on Rehm’s Facebook wall, as emailed to the City by someone named Rob[ert Taylor] O’Neal.

Since Assistant City Attorney Kristen Denius seemed so interested in my facebook postings, I sent her a friend request so that she can view them herself, rather than enlisting  Robert Taylor O’Neal. I’m disappointed that she hasn’t accepted.

Matthew Cardinale is well-known for singing and rapping in his comments to the Atlanta City Council. Since the City lawyers lost their motion, I suspect they’re no longer interested in deposing me. But just in case, I’ve given my lawyer instructions to pass on to them: they’re taken from another song you may have heard. (link not safe for work or around young kids)

I am admittedly an absolutist complete nutjob with respect to the First Amendment, but it’s only because it protects so many of the most important things in our lives. If you’re a government official who deals with the press, you should acquaint yourself with the First Amendment and our rights under it.

“I would remind you that extremism in the defense of liberty is no vice! And let me remind you also that moderation in the pursuit of justice is no virtue.”

-Barry Goldwater

If the First Amendment protections against our government fail, our next bulwark is the Second Amendment. And nobody wants it to ever come to that.

P.S. Matthew Cardinale and Atlanta Progressive News have spent a considerable sum defending the rights of all of us. Consider visiting their site and making a donation to offset their legal expenses; I have. I also highly recommend subscribing to their newsletter. Even though I disagree with his politics, I read every single edition as he covers topics neglected by the mainstream media.

P.P.S. The American Spectator used to publish a semi-humorous (if you appreciate droll humor) list of “enemies of the people”. I’m starting my own list.


  1. First, +1 for Goldwater.
    Second, “Nobody wants it to ever come to that” should have an “almost” in front of it.
    Third, I take great offense at your implication that you are the most annoying contributor on PeachPundit. Great. Offense.

  2. Spacey G says:

    I went to that church for Christmas Eve services once, a long time ago. There was a dude in the Jesus’ birth re-enactment pageant portion playing the role of one of the Wise Menz. His costume included a gigantic inverted Vanilla Wafer on his head. Was hilarious! Had a tremendous case of the church giggles. I still crack-up thinking about it every time I drive by the place.

  3. Robert Schreiber says:

    Back in 2007, Atlanta would not produce geological data regarding their sewer consent decrees although I had made a proper Open Records request.

    The Georgia ACLU provided legal support and the primary attorneys at Atlanta were Kristen Denius and Saul Schultz.

    Although I eventually obtained the geo-data from a sympathetic source, Atlanta never did make the records available.

    In their arrogance, George Barnes, (Atlanta’s former Deputy Commissioner of the Department of Watershed Management), did make other records available which I did not know about, and thereby aided substantially in providing documents which helped lead to contacting Federal District Judge Thomas Thrash about Atlanta’s violations of Georgia and Federal Underground Injection Control regulations.

    Once you have dug yourself into a hole, the first thing to do is to stop digging.

    Once you have violated the law, the first thing to do is to stop violating.

    Once you have stored sewage in aquifers without required state/federal permits, the first thing to do is to stop storing.

    See Atlanta Progressive News’ article http://atlantaprogressivenews.com/news/0683.html
    Advocates Claim Atlanta Violating Safe Drinking Water Act

  4. Calypso says:

    “…(if you appreciate drool humor)…”

    Todd, I appreciate droll humor, but not humor where slobber runs out the comedian’s mouth. 🙂

    Hope you have a good weekend–Calypso

    • Todd Rehm says:


      I remember seeing that while I was editing and thinking “got to remember to fix that”. Then I either forgot, or thought, “well, nobody’s going to read to the end anyway”.

      Either way, I fixed it and thanks for the heads-up.

  5. Spacey G says:

    Just one more thing, and then I actually have to go do real stuff today, asking city officials and Georgia pols, etc. to become Facebook friends with you would require stuff of them like being able to operate an electronic product… all by themselves. That could be asking WAY too much outta plenty of ’em.

  6. objective says:

    Maybe we should put a clause about freedom to access government records and functions in the 1st Amendment. The freedom of press clause seems more tuned into publication. And then make severe penalties for violations under corollary (sp.?) statutes, with the only exception for access being the immediate risk of grave physical harm to known individuals or some other movie title appropriate for Harrison Ford.

  7. joe says:

    The first amendment is one of the most misunderstood parts of the Constitution. The courts regularly get it wrong.

    “Congress shall make now law…”, even when modified to include “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…” from the fourteenth, is a prohibition on federal and state governments. I just do not see that prohibition applying to cities. I would not live in a city that did not afford me my rights, but it really isn’t a US Constitution issue.

    • objective says:

      just a quick example, if Atl makes a law or policy abridging a first amendment right in contradiction to established constitutional principles, as applied to states, then the state cannot allow it to be enforced if it is brought before it in say, Fulton County. if the issue stayed in a municipal court- i don’t know- it may die; but if u want proper ruling on 1st amendment issues, i recommend using the state’s or fed’s mechanisms of enforcement

    • Doug Deal says:

      Cities and counties are subdivision of state power. They are chartered by the state, enforce state laws and do have never stood alone. States are co-sovereign entities that share power with the Federal Government and have never been considered subdivisions of the Federal Government.

      Your logic would allow Executive departments to abridge free speech because the Constitution says Congress and not the President. Of course, like cities within states, the Executive branch derives its powers and authority from laws passed by Congress.

  8. Ken says:


    This was excellent.

    One day I’m going back through it and do a headcount on both the specific and general braindead positions and people that you skewered. You left a glorious and bloody wake.

  9. Todd Rehm says:

    Thanks, Ken. At least one additional braindead position has been stated in the comments.

    And that last line right there is what’s going on my gravestone. “He left a glorious and bloody wake.”

  10. 22bons says:

    You are good people Todd. Thanks for publishing the memos. You’ve earned a victory lap and admission into the exclusive “I fought City Hall and lived to tell about it club.”

  11. 22bons says:

    Is there an address where we can send a check to help with legal fees? Paypal and I haven’t been on speaking terms since the day I attempted to purchase a laptop online while in an eastern European country…..

Comments are closed.