Getting the First Amendment wrong – The Boston Globe

Think of the last time you changed your profile picture on Facebook or Instagram. When you uploaded that photo, did you assume you were agreeing to let anyone do anything they want with that photo, including putting you in a facial recognition database to track your location and every photo of you on the Web? Facial recognition company Clearview AI seems to think so. The company is bolstering its legal team to build a First Amendment argument to help justify its dubious and dangerous facial recognition business. All of our privacy hangs in the balance.

Clearview AI scrapes billions of photos from the Internet, adds facial recognition, and sells them to government, law enforcement, and immigration agencies. Clearview AI apparently wants to assert a free-speech right to disseminate publicly available photos. It also wants to gut Illinois Biometric Information Privacy Act, arguing that enforcing the statute against the company would violate the First Amendment. BIPA is the most important biometric privacy law in America because it allows people to sue companies directly for violations. If Clearview AI were to succeed in its legal challenges, it would actually inhibit free expression in general and eviscerate many of Americas already limited privacy protections.

Clearview AI is wrong about privacy and wrong about the First Amendment. It would have you believe that the moment you post a photo of yourself on Facebook or walk outside your house, you abandon any privacy interest in your image or your whereabouts because they are now public. This is the case whether you are going to the grocery store or to a Black Lives Matter rally. Clearview AIs position isnt just wrong as a matter of common sense, but as a matter of law as well. Nevertheless, its legal team is sure to point to language in pre-digital court cases about how there is less privacy in public and to appeal to vague notions of publicly accessible information. Theyll wave this concept of public information like its a talisman that lets them do anything they want.

But the word public is essentially meaningless in the law. It has no set definition and few consequences. Its like asking whether Clearview AI does innovation or big data. The in public debate is a red herring that distracts from more important issues like how Clearview AIs unregulated data practices rip data out of context to harm people, relationships, and public institutions. Clearview AIs argument boils down to the idea that nothing you expose to anyone else is worthy of protection, but that everything they do with their technology is above the law. Thats a remarkably dangerous position to take in a world where virtually every action we take online and out and about in society leaves us vulnerable in ways we can scarcely imagine.

Facial recognition doesnt just jeopardize our privacy; its a tool for shutting down expressive activity as well. Imagine every single person who protested against racial injustice this summer being identified and tagged as a troublemaker in government systems. Imagine every random photo of you taken at a party, restaurant, or event logged to reconstruct your geolocation history. Facial recognition is a tool for stalking, a tool for shaming people who may have made mistakes, and a tool for government oppression. Clearview AIs decision to make this claim at a time of both rising authoritarianism and an overdue national reckoning on racial justice sadly reveals which side it is on.

Theres also a rich irony to Clearview AI arguing that government regulations protecting ordinary people from a technology of oppression are an affront to civil liberties. As for the First Amendment, the Supreme Court has carefully balanced privacy and free expression in a series of cases, recognizing that both privacy and free expression are essential civil liberties for any free society. Nor are free speech and privacy always in conflict. Our laws have long recognized that a special kind of privacy intellectual privacy is essential to free expression by allowing us to experiment with new ideas and beliefs. The core of the First Amendments commitment to free speech is protecting individual speakers like protestors and journalists from government oppression, not giving constitutional protection to dangerous business models that inhibit expression and give new authoritarian tools to governments.

If Clearview AI were to prevail and foist its dangerous reading of the First Amendment on our law, the rest of us would all be worse off, including the technology sector as a whole. A few weeks ago, the European Court of Justice ruled that Americas weak privacy laws raised serious questions about whether European data could be processed in the United States. The European Court was particularly concerned about the extent to which government surveillance in the United States was unchecked, and whether privacy rights were enforceable in American courts. Yet Clearview AI is trying use the First Amendment to ensure a freedom to surveil at will. The European Courts decision has imperiled a multibillion-dollar trade in data every Google search and every Facebook status update made by Europeans, for starters. If Clearview AI were to get its way, the only winner would be Clearview AI. And our privacy, our free speech, and American industry as a whole will be the losers.

Woodrow Hartzog is a professor of law and computer science at Northeastern University. Neil Richards is the Koch Distinguished Professor in Law at Washington University School of Law and co-director of the Cordell Institute for Policy in Medicine & Law.

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Getting the First Amendment wrong - The Boston Globe

New First Amendment Center to House Law and Religion Clinic – UT News – UT News | The University of Texas at Austin

AUSTIN, Texas The School of Law at The University of Texas at Austin is opening the Bech-Loughlin First Amendment Center, which will be dedicated to advancing the discussion, education and scholarship of the First Amendment.

Among the centers main projects will be a new experiential education opportunity, the Law and Religion Clinic. It is the first clinic at a university in the state dedicated to representing clients in cases that involve challenges to their religious liberty and will allow students to learn about the parallels between the First Amendment and religion.

We live in times when measured conversation between people with different viewpoints has often become difficult sometimes even scarce, said Ward Farnsworth, dean of the School of Law.As the flagship public law school in a diverse state, I believe its important for us to show commitment and leadership on this issue.

Students will serve as advocates for clients who would otherwise be unlikely to find representation.These include individuals denied benefits or opportunities because of their religious exercise or beliefs, religious institutions discriminated against in municipal land-use decisions, and individuals seeking to practice the tenets of their religion in restrictive environments, such as prison and educational settings.

At a moment where our nation is divided on so many issues, our constitutional right to free speech is one of the most important tools we have to facilitate needed discussions, find common ground and continue making progress, together, said UT Austin interim President Jay Hartzell. The First Amendment Center will provide incredible experiential learning opportunities for UT law students while helping serve Texans in need of legal counsel and representation.

The center opens immediately, and the clinic will be offered to students during the spring 2021 semester. The center is named for Doug Bech, J.D. 70, and Samuel Loughlin, J.D. 98, who have partnered to pledge an $8 million gift to endow the centers activities and staff.

Our First Freedoms of religion, speech, press and assembly are central to human flourishing, liberty and a healthy society in America and across the earth, said Bech and Loughlin. It is best secured through a civil public square where all discussion is respected equally in accordance with our rule of law. We believe that this Center and Clinic will provide UTs law students with the educational foundation to protect and embrace these vital constitutional rights for all persons.

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New First Amendment Center to House Law and Religion Clinic - UT News - UT News | The University of Texas at Austin

Pompeo’s Right About One Thing: Diplomats Deserve First Amendment Rights – Lawfare

Last week, Secretary of State Mike Pompeo kicked off a firestorm of controversy by giving a speech at the Republican National Convention, making him the first sitting secretary of state to engage in such an unmistakably partisan political act in recent memory. Some officials have claimed that, because Pompeo appeared in his personal capacity and at no cost to the State Department, he did not violate relevant ethics laws. But the message Pompeo delivered was prerecorded while he was on an official trip in Jerusalem, in seeming contravention of long-standing State Department policies that severely limit the political activities that U.S. citizen employees and their families can engage in while overseasa policy that Pompeo himself had reiterated in a department-wide message just weeks earlier.

Pompeos actions are undeniably hypocritical, and his willingness to mix his official duties with partisan politics is without a doubt alarming. But if there is a silver lining to this story, its that hes unwittingly brought attention to the problematic restrictions that the State Department puts on the political activities of its overseas personnel. However well intentioned, these restrictions are at best overbroad and at worst unconstitutional, as they infringe on an important set of political rights protected by the First Amendment. Diplomats who spend much of their careers overseas deserve to be able to engage in political activities as much as any other government employee. Its time for the department to recognize this and change its policies accordingly.

The policy at issue has been on the books since 2003, though it reflects norms that have been in operation for much longer. In its current form, the policy categorically prohibits both U.S. citizen employees and their family members who are assigned overseas from engag[ing] in partisan political activities abroad, other than authorized activities pertaining to U.S. electionsa category largely limited to nonpartisan voter registration drives. As a December 2019 legal memorandum secured by congressional investigators makes clear, this means that neither overseas employees nor their family members can attend political events and meetings or so much as display a pin or sign supporting their preferred candidate, even when at home and in their off hours. When it comes to partisan elections, overseas department employees and their families may donate money and vote, but thats about iteverything else is prohibited. (A separate policy that Pompeo also ignored puts similar restrictions on the speech of Senate-confirmed State Department political appointees but doesnt raise comparable concerns.)

The State Departments policy toward overseas employees and their families goes well beyond the limits usually imposed on federal employees political speech. The federal Hatch Actwhich also applies to State Department personnelonly prohibits federal employees from running for partisan office or using any government resources in relation to partisan political activity. Some federal employeesincluding many who work on national security mattersare further restricted under the law, meaning that they are also prohibited from volunteering for or coordinating with any partisan political campaigns or organizations. But even these employees can still attend political events and express their political views in their private timeand their family members arent subject to any restrictions whatsoever. Members of the armed forces arent covered by the Hatch Act, but a separate policy makes them subject to the same basic restrictions as other federal employees. The State Department stands alone in imposing such draconian restrictions on its employees.

And these restrictions come with real costs, as Ive witnessed firsthand. During the 2012 presidential election cycle, I was the legal adviser for the U.S. Embassy in Baghdad, Iraq, where part of my job was to remind my colleagues about the limits that department policies put on their political activities. Many had strong feelings about the election and wanted to find ways to express their views and engage in the political process. A good number were understandably disappointed and even angered to find out that State Department policies basically require that they not do so while overseas. After all, we were the ones living and working on the front lines of American foreign policythe idea that we would have less say in who guides that policy than those back at home seemed fundamentally unfair.

More than that, it may also be unconstitutionalsomething that should give department officials serious pause. The Supreme Court has made clear that Congress and the executive branch can impose substantial restrictions on employees political activities in order to promote a fair and effective civil service (or, presumably, foreign service), but this authority is far from absolute. Federal employees still have First Amendment rights to engage in political speech and activities, meaning that the governments interest in promoting the efficiency of the public services it performs through its employees has to be balanced against the interests of the [employee], as a citizen, in commenting upon matters of public concern[.] The department may find it hard to argue that its current policies strike such a balance, given that Congress has adopted a less restrictive stance even for federal employees working in the most sensitive of positions elsewhere in government. Nor is it clear what legal authority the State Department has to impose equal restrictions on the constitutionally protected political speech of department employees family members, who do not even work for or represent the U.S. government. And the fact that many professional diplomats spend most of their careers overseas means that the current policy can result in lost decades of political participation for State Department employees and their familiesa deprivation that the courts will take seriously, even if the department does not.

This does not, of course, mean that the State Department should impose no restrictions whatsoever. As Pompeos own department-wide message ably described, [t]he Department works to advance the national interest abroad on behalf of all Americans in a non-partisan fashion[,] and restrictions on the political activities of overseas employees can help to avoid any confusion or misperception in this regard[.] This is why individuals representing the United States abroad need to be exceptionally diligent about keeping a sharp divide between their political views and their official dutiesa lesson that Pompeo himself appears to have lost sight of this past week.

But the Hatch Act does this quite effectively for the rest of the federal government, including for those further restricted employees who work on foreign relations and national security at other agencies. So why should overseas State Department employees and their family members be subject to restrictions that are so much more onerous? Theres no basis for believing that allowing overseas diplomats and their families to attend political events and express political views in their private time will be any more damaging to U.S. foreign relations than when these other employees do the same. And the fact that American diplomats can hold divergent political views in their private lives yet still work together to advance the national interest is a strength of American democracy that should be celebrated, not hidden behind a sanitized, apolitical veneer.

Fortunately, the departments policies are not written in stone. Pompeo has the authority to change them, as will his successor. Judging from his behavior this past week, Pompeo seems to have decided that the rule as it currently stands is too onerous to apply to him. Now he need only extend the same courtesy to the thousands of diplomats working beneath him.

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Pompeo's Right About One Thing: Diplomats Deserve First Amendment Rights - Lawfare

SAF and Defense Distributed win Fifth Circuit case on First Amendment and 3D – AmmoLand Shooting Sports News

Defense Distributed Liberator Pistol

U.S.A. -(AmmoLand.com)- On 19 August 2020, the Fifth Circuit Court of Appeals reversed a Federal District court. The three-judge panel of the Fifth Circuit found the Attorney General of New Jersey is under Texas jurisdiction for this case. The case is Defense Distributed v. Grewal.

The finding allows a lawsuit filed against the New Jersey AG for violation of Defense Distributed First Amendment rights to publish computer code for 3D printed guns, to go forward.

Presumably, the discovery of Grewal's records on any discussion relevant to stop Defense Distributed from publishing will be allowed to continue.

AG Grewal can ask for an en banc hearing at the Fifth circuit. Failing that, he can appeal the ruling of the three-judge panel to the Supreme Court.

The ruling is a highly technical discussion about whether Grewal's conduct is sufficient to generate jurisdiction in Texas. All three judges agree that it is.

The dissent argues that Grewal, as an Attorney General, should be exempt from being sued in such a case. The case will continue.

With the resources of the State of New Jersey at his command, it is expected AG Grewal will use every opportunity to delay and derail this case. There will probably be a request for an en banc ruling, it will probably be denied and the case will be appealed to the Supreme Court. That will buy another year's delay for Grewal in his scheme to deny Defense Distributed First Amendment rights. A presidential election will take place before then.

If President Trump wins, Grewal's scheme will likely fail. AG Grewal has consistently worked to stop the settlement which was hammered out between the Trump administration and Defense Distributed.

If President Trump loses, a Biden-Harris administration will do everything they can to reinforce Grewal in his bid to stop Defense Distributed from exercising their First Amendment rights. A Biden-Harris administration will stop the settlement from going into effect, if it has not already been put in place.

The Fifth Circuit is saying AG Grewal of New Jersey may be personally liable for attacking the First Amendment rights of Defense Distributed.

It is an important finding. We will not know the results before the election, but the results may be of great significance for the nation.

Here is a timeline of Defense Distributed attempts to exercise its rights:

The precedent for the protection of computer code as a freedom of speech issue is fairly clear, established in the encryption debates in 1995, in the Ninth Circuit.

The Supreme Court has not directly ruled on the issue. At some point, a Supreme Court ruling is almost sure to happen.

You cannot stop people from obtaining guns unless you stop them from having the information on how to make guns.

The First Amendment says the government is not allowed to do that.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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SAF and Defense Distributed win Fifth Circuit case on First Amendment and 3D - AmmoLand Shooting Sports News

Protests go on: Smaller group kept to paved area at courthouse – Gainesville Daily Register

The support at a Sunday evening protest in downtown Gainesville might have been less than usual, but PRO Gainesville founder Justin Thompson said the activist group isnt going away anytime soon.

We had a lot of support that didnt feel comfortable coming out today [Sunday, Sept. 5] because of the reports of them [law enforcement] trying to do mass arrests on us, Thompson said.

Sundays protest was the first major PRO Gainesville event since Thompson, Torrey Henderson and Amara Ridge were booked into the Cooke County Jail on Class B misdemeanor charges of obstructing a highway or other passageway. The charges stemmed from a march Sunday, Aug. 30. All three organizers and Gainesville residents bailed out Thursday, Sept. 3, not long after they were booked in that same morning.

PRO Gainesville has been calling since June for the removal of the Confederate Soldiers and Sailors Monument that stands on the northeast corner of the Cooke County Courthouse, 101 S. Dixon St.

Thompson said some of the backers of the Gainesville-based activist group didnt feel safe coming out this past weekend and he understands their decision.

Safety is No.1 priority, he said.

He also thinks a recent order unanimously approved by the Cooke County Commissioners Court is a tactic to deter the groups protests.

According to the order, which went into effect Friday, Sept. 4, a person or persons may not cause or authorize any signs, symbols, structures, contrivances or devices to be placed, installed, affixed or maintained on or over county property including the placement or installation of any signs, structures, contrivances, devices used for commercial or noncommercial purposes, except for items approved by the commissioners court.

We feel like this is just one way that they are trying to use to silence us, Thompson said. We will not be silenced. We have a First Amendment right, freedom of speech and freedom to protest, and we will continue that. We will do our best to obey their rules that they want to set forth with the understanding that what they are doing is clearly to disrupt our First Amendment rights.

Allen Zoeller, a Woodbine resident, said Sundays protest was his first to attend. He was sitting on the opposite side of the street where counter-protesters often gather and said he was in favor of keeping the Confederate monument.

My issue is they need to get the facts straight first, Zoeller said. Blacks fought in the war and whites fought in the war same way in WWI they did and in WWII they did.

Zoeller said hes lived in the community for 30 years and he though the statue hasnt been an issue before this year.

The statue is not the issue really, theyre just making it an issue, he said. Its OK that they voice their opinion you can learn from your mistakes but destroying your history isnt going to help one bit, thats my opinion.

Gainesville Police Chief Kevin Phillips said his department didnt make any arrests during Sundays protest.

He said there were maybe 40 protesters on the PRO Gainesville side and counter-protesters came and went so he didnt get a good count of how many there were.

There were 24 Gainesville Police Department officers dedicated to the Sunday evening protest, according to Phillips.

He said there were no reported assaults and it was overall a successful event.

Cooke County Sheriff Terry Gilbert said his department didnt make any arrests either. There were 18 personnel from the Cooke County Sheriffs Office at the event, he said.

As far as I know everything went peacefully, Gilbert said.

Troopers with the Texas Department of Public Safety were only at the protest to assist, according to Texas Highway Patrol Sgt. Mark Tackett.

We are making critical coverage of the coronavirus available for free. Please consider subscribing so we can continue to bring you the latest news and information on this developing story.

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Protests go on: Smaller group kept to paved area at courthouse - Gainesville Daily Register

Save the Stars and Stripes – Lowell Sun

The future of Stars and Stripes, the militarys independent newspaper, is uncertain, despite President Trumps Hail Mary pass of a Friday Tweet vowing to keep the publication funded.

The paper had been ordered to cease publication by Sept. 30, by order of the Pentagon, according to the Associated Press. This crucial publication is an important resource for those in uniform and costs pennies on the dollar compared to other spending the Department of Defense engages in.

Nobody does what we do, Stars and Stripes ombudsman Ernie Gates told CNN.

According to The Hill, a Washington, D.C., publication, Stars and Stripes funding is about $15.5 million annually, or 0.000022% of the Pentagons $705.4 billion fiscal 2021 budget released in February.

And yet, the Defense Dept. deemed it dispensable in order to bolster funding for other programs.

To their credit, some in Congress stepped up and senators sent a letter to Defense Secretary Mark Esper urging him to reinstate the $15.5 million in funding for the paper to the departments budget.

Both Republicans and Democrats signed the letter, which read, in part, Stars and Stripes is an essential part of our nations freedom of the press that serves the very population charged with defending that freedom.

Gates told The Associated Press on Friday that shutting the paper down would be fatal interference and permanent censorship of a unique First Amendment organization that has served U.S. troops reliably for generations.

The paper is published by the Defense Department but its real value is that it is editorially independent from the Pentagon, the importance of which was noted in the letter sent to Esper.

It was Stars and Stripes that revealed the Defense Departments use of public relations firms that profiled reporters and steered them toward favorable coverage of the war in Afghanistan, the letter read. Most recently, the paper brought to light the failure of schools on U.S. military installations to shut down during the pandemic, despite Japanese public schools doing so. These stories illustrate why Stars and Stripes is essential: they report on stories that no one else covers.

Cue Trump, who tweeted late Friday afternoon The United States of America will NOT be cutting funding to @starsandstripes magazine under my watch. It will continue to be a wonderful source of information to our Great Military!

Unfortunately, its not that easy.

Ultimately, Congress is the arbiter of the budget, said Gates.

It has yet to finalize the the Pentagons 2021 budget the House plan calls for continued funding for Stars and Stripes, the Senate version does not. Those plans need to be hashed out and signed by Trump.

The publication has a rich history with its original incarnation being briefly produced during the civil war.

It was published in earnest during World War I and went dark at the end of the war before returning until in 1942 during World War II, providing wartime news custom curated for troops and by troops.

Let us hope that the letter to Esper can move the needle on this or that the Senate can do the work the House did to make the publication whole in the budget again.

Further, those with influence should exert it now to save the paper. A good example would be Sen. Lindsey Graham (R-S.C.) who wrote a separate letter to Esper. As a veteran who has served overseas, I know the value Stars and Stripes brings to its readers, it read.

They have the presidents support its time to complete the mission.

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Save the Stars and Stripes - Lowell Sun

First Five: Right to peacefully protest needs better supporters – McDowell News

To start with, some of the commenters might be surprised to learn about what, exactly, constitutes a federal offense. As documented by the Prosecution Project, in many cases the charges that federal prosecutors are pursuing against protesters dont involve violence or even property damage.

For example, a Texas man was charged with civil disorder for trying to barge through a police line and then passively resisting arrest by placing his arms underneath his body as he lay on the ground. Six individuals were charged with inciting riots, not because of actions they took at protests, but because of posts they made on social media. (As the blog Lawfare reports, the federal statute that they are charged with violating has long been criticized for infringing on First Amendment rights because it broadly prohibits a class of speech without tying that speech to any imminent action.)

But even when it comes to federal offenses that are truly violent and destructive, I have an instinctive skepticism about laws that do nothing but take acts that are already illegal and make them even more illegal.

If you are convicted of, say, destroying government property because you vandalized a police car, you will already be facing jail time and/or heavy fines. So why should vandalizing a police car at a protest incur an extra layer of punishment over doing the exact same thing on a regular day? If anything, its a lot more difficult to ascertain who did what at a protest than it is at almost any other time its very easy for peaceful protesters to be swept up in charges for violent acts they had nothing to do with.

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First Five: Right to peacefully protest needs better supporters - McDowell News

Ambazonia, Remedies, and the First Amendment Reason.com – Reason

I had never heard of Ambazonia before Friday, but I now see that it is a breakaway part of Cameroon, in an area also known as the South Cameroons, though it's actually northwest of much of Cameroon. Here's the opinion that enlightened me on the subject, decided Feb. 6, but just added to Westlaw; it's by Judge Percy Anderson (C.D. Cal.), Cameroon Ass'n of Victims of Ambazonia Terrorism Inc. v. Ambazonia Foundation Inc.:

According to the Complaint, defendants Ambazonia Foundation Inc. ("AFI"), Ambazonia Interim Government ("AIG"), Ambazonia Governing Council ("AGC"), Ambazonia Defense Forces ("ADF"), Tapang Ivo Tanku ("Tanku"), and Christopher Anu Fobeneh ("Fobeneh") (collectively "Defendants"), are associated with and control an armed militia group seeking to overthrow the government in the Northwest and Southwest ("NOSO") region of Cameroon. [Some of the defendants allegedly live in the U.S. or are organized here. -EV] The Complaint alleges that Defendants announced on January 7, 2020, that there will be a "total lockdown of NOSO during the periods of February 6, 2020 through February 12, 2020" and instructed fighters associated with the militia "that anyone who steps out of their homes during that lockdown, or operates any business, will be abducted, or killed." These allegations are similar to allegations contained in the prior actions filed by Plaintiff's counsel, in which the plaintiffs in those prior action alleged that the militia's leaders announced lockdowns for other periods of time. CAVAT asserts that the lockdown threats, as well as abductions and killings in Cameroon, harm CAVAT's efforts to provide humanitarian services in the region.

Plaintiff's Complaint alleges claims against Defendants for: (1) conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign county in violation of 18 U.S.C. 956; (2) providing material support to terrorists in violation of 18 U.S.C. 2339A; (3) expedition against a friendly country in violation of the Neutrality Act, 18 U.S.C. 960; and (4) financing of terrorism in violation of 18 U.S.C. 2339C. The Ex Parte TRO seeks to temporarily restrain Defendants from:

"1. Engaging in conduct or actions, or conspire to engage in such conducts or actions, including actions such as abductions, arson, arrests, killings, kidnappings, human rights violations, war crimes, assault, battery, harass, intimidate, molest, attack, strike, stalk, threaten, hit, abuse, or disturb the peace of plaintiff, its members, its victims, or those similarly situated.

"2. Providing any assistance like money, logistics, expert advise or assistance, personnel, weapons, bullets, to the armed non-state groups in Cameroon.

"3. Providing or preparing for, or furnishing the money for, any military expedition or enterprise to be carried out against the Republic of Cameroon.

"4. Collecting funds, directly or indirectly, with the intention that such funds be used, or knowledge that the funds will be used, to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such an act is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

"5. Ordered to declare, by spokesman and de facto leader, Ivo Tanku Tapang for AGC defendants, and Communications Secretary Christoperh Anu Fobeneh a.k.a. Chris Anu for AIG defendants, and post on their social media forums on Facebook and YouTube that: 'Any civilians who do not obey their 'total lockdown' orders on February 6, 2020 through February 12, 2020, will not be harmed and they will not agree or provide funding to the armed groups to commit any acts of killings, abductions, destruction of property, torture, maiming of anyone.'"

Trying to stop an alleged civil war / revolution / reprisal against civilians in Cameroon via a civil lawsuit in U.S. District Court seems like a tall order, and Judge Anderson doesn't go for it. He rejects the demand on procedural grounds (such as failure to adequately explain why notice wasn't given to the defendants), but adds:

The Court additionally concludes that CAVAT has not satisfied its burden to satisfy the requirements for injunctive relief or to establish that the injunction it seeks would prevent the irreparable harm it claims it will suffer as a result of the most recent lockdown threats.

Unfortunately, it is not clear that any injunction the Court could issue would provide Plaintiff with the relief it seeks. The criminal statutes on which CAVAT bases its civil claims already prohibit the activities CAVAT seeks to prevent Defendants from conducting, and at least two of those statutes do not appear to create a private right of action. "It would be doubly difficult to find a private damage action within the Neutrality Act, since this would have the practical effect of eliminating prosecutorial discretion in an area where the normal desirability of such discretion is vastly augmented by the broad leeway traditionally accorded the Executive in matters of foreign affairs."

Additionally, although the Antiterrorism Act ("ATA") authorizes a civil remedy for nationals of the United States to sue for injuries they have suffered "by reason of an act of international terrorism" and recover treble damages, the statute does not expressly provide for injunctive relief. Plaintiff cites to no authority applying the ATA in which a court has granted injunctive relief like that sought here. Instead, the injunctive relief Plaintiff seeks appears to be designed more to trigger future contempt proceedings than to prevent Plaintiff's irreparable harm.

The Court additionally notes that by seeking an order requiring Defendants to make certain statements disavowing a lockdown, CAVAT asks this Court to compel Defendants to make certain statements. That type of relief raises significant First Amendment considerations. See Riley v. Nat'l Fed'n of Blind, Inc. (1988). The First Amendment protects not only "the right to speak freely," but also "the right to refrain from speaking at all." Wooley v. Maynard (1977); see also Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995) ("[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say.").

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Ambazonia, Remedies, and the First Amendment Reason.com - Reason

Online Platforms and the First Amendment Problem – The McGill International Review

Although online platforms have existed for decades, their potentially counterproductive influence on electoral integrity has given rise to an impasse. Tech stars, like Facebook, Twitter, and Google, and state bodies are seldom on the same page when it comes to managing the power of technology services, promoting freedom of speech, and protecting First Amendment rights. Actors on each side have actively debated whether global technology firms threaten free expression, and how this can be regulated to preserve Americans (and other international users) rights. Moreover, the two parties represent differing goals and constituents. Whereas legislative bodies operate within government structures and are beholden to the electorate, tech giants must maintain a business model that drives profits for shareholders. As such, both governmental intervention and civil action are required to overcome challenges that powerful tech firms pose to society.

Tech executives argue that their role extends beyond their services, as they empower social mediators across all segments of contemporary society. Anyone with the privilege of internet access can speak to a global audience with greater ease than ever before. Under current legislation, companies can freely interpret the bounds of good faith content moderation, meaning they claim to be maintaining a healthy level of oversight on harmful content like hate speech, terrorist propaganda, and other forms of objectionable expression.

Tech companies efforts to justify their intentions would not be needed in the absence of doubters. For example, in 2018, YouTube evaded a lawsuit in which Prager University accused the company of censoring conservative content and having a political identity and viewpoint. Ultimately, the case was dismissed because YouTube does not qualify as a state actor. In other words, private entities have the same First Amendment rights as individuals, allowing them to make their own decisions about the content on their platforms. This case illustrates how online service providers do not have to be neutral or fact check. Even if they exhibit a strong desire to be neutral, this would be impossible, considering the subjective nature of objectionable content, wherein definitions vary based a countrys free speech laws.

Widespread concern regarding the political and social consequences of tech giants unfettered freedom has prompted legal investigations led by the Department of Justice, the Federal Trade Commission, and state-level prosecutors. However, many challenges stand in legislators way when deciding on the best legal course of action to govern online service providers.

For one, lawmakers usually struggle to penetrate the digital bubble of software and algorithms that are incomprehensible to most outsiders. Senators often display frustration when trying to get a straight answer from the executives being questioned in congressional hearings. Even if being vague allows these executives to protect their private intellectual property during public hearings, it is unlikely that lawmakers know enough about these companies behind-the-scenes content regulation procedures. Capitol Hill recently expressed concern over the spread of misinformation about COVID-19 and climate change on Facebook, subsequently demanding greater information about how the platform handles fact-checking, and if its size impedes this process. However, previous attempts suggest that many lawmakers are technologically inept.

Evelyn Doueks essay, The Rise of Content Cartels, poses a question that encapsulates the two main options considered by government bodies in response to internet giants power over free speech standards. Douek asks: Should platforms work together to ensure that the online ecosystem as a whole realizes these standards, or would society benefit more if it is every platform for itself?

Doueks every platform for itself option implies enacting stricter antitrust enforcement on these technology companies and promoting healthy competition levels. For instance, Facebook already differs from other social media platforms, like Twitter, due to its less aggressive approach for policing inflammatory comments and fact-checking. By increasing the number of players in the market, the industry may align itself with the type of moderation that is most palatable to consumers. However, this approach has numerous flaws. Considering no ideal moderation method has surfaced as of 2020, it is uncertain whether this is possible. Also, if online platforms have not broken any legitimate laws, then arbitrary exercise of antitrust enforcement can be seen as an abuse of power by the government, something the First Amendment is intended to protect private entities from.

The other option entails shared standards, which is arguably harder to put in place, as it requires amending or re-writing current communication and media laws. Mark Zuckerberg expressed his feeling of being caught in the polarity of the American political system, saying: The Trump administration has said we have censored too much content and Democrats and civil rights groups are saying that we arent taking down enough. The challenge lies in Facebooks and the governments ability to find a middle ground between protecting the First Amendment rights of citizens and policing disinformation. Still, whoever defines this middle ground may be subject to ideological bias themselves.

Mark Zuckerberg should listen to his employees and explain what the company will do if Donald Trump uses its platform to try to undermine the results of the presidential election. https://t.co/QfUAmdTL3t

Elizabeth Warren (@ewarren) August 9, 2020

Aside from the government and other actors in positions of power, it is important to remember that members of the public also play an important role by engaging informed discussions about the influence of technology. More individuals need to consider exercising their freedom responsibly. People often view technology companies executives as genius figures because of their contributions to human society. However, such successes do not mean these individuals are messiahs, holding the answers to all of societys problems. Thus, the public needs to be critical of their actions and claims, and how they affect politics, the law, and free speech.

Whether there will soon be an overarching set of regulations to govern the technology sector remains uncertain, as industry players and legislative bodies have been unable to converge their respective expertise to tackle the current issues of content regulation. In the meantime, it is crucial to be critical of the way the internet currently functions, because each individual is inevitably part of the vision that tech giants set for the future.

Featured image: Youve Been Zucked by Annie Spratt, viaUnsplash.

Edited by Asher Laws

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Online Platforms and the First Amendment Problem - The McGill International Review

Buffalo man shoved by police speaks on incident, his recovery and the First Amendment – The Times Telegram

It was his name that gave him away.

"Hey, are you the 75-year-old guy who was hit in Buffalo?" a post office worker asked.

Martin Gugino, 75, of Amherst, wasnt expecting to be recognized in public, especially wearing a face mask.

But the videos that captured the moment when Buffalo Police officers shoved Gugino backward in front of Buffalos City Hall in June during a protest over the death of George Floyd, causing him to fall and crack his skull on the pavement, had been seen around the world.

Gugino, speaking to the USA TODAYNetwork's New York State Team last week in his first extended interview, was reluctant to go into detail about the incident, which sent him to the hospital for a month to recover from a brain injury and a fractured skull.

That's because he doesnt remember the moment he was shoved, and he has flashes of memory in the minutes before or after. Video recordings helped him fill in the blank spots of what happened that evening.

He is seemingly uninterested in becoming a symbol of a trend or a movement, or drawing attention to himself.

When asked about the context surrounding his fall and injuries, he noted that "a lot of people are injured, and a lot of people are killed," and often, nothing is done about those incidents, especially if there was no record of it on video.

Still, he called the incident a "turning point" for him.

He will continue to participate in grassroots activism around the First Amendment, as he has done for decades. Hell continue to write about climate change and injustices at Guantanamo Bay on his blog and on Twitter.

"My life is headed in a new direction," Gugino said. "How is it different? Im not really sure yet."

Why are they carrying batons?

Gugino showed up at a Black Lives Matter rally in downtown Buffalo on June 4 at around 7:45 p.m., 15 minutes before the city-imposed curfew went into effect.

The night prior, a number of Buffalo police officers tooka knee with community members in solidarity with the protests around the murder of Floyd by police in Minneapolis on May 25.

Just minutes before police began moving toward the crowd, Gugino noticed they were outfitted with helmets, vests and batons:"I thought, Why are they carrying batons?'"

Earlier in the evening, he had approached several police officers to ask whether they thought the Mayor Byron Browns curfew order could legitimately make an assembly illegal.

They didnt respond, other than to offer to read the mayors statements to him.

Gugino also had a conversation with several bystanders, which was caught on video and appeared to show at least one person expressing anger toward him.

Gugino said one individual thought he was an undercover cop, which Gugino denies.

At around 8:10 p.m., as seen in several videos of the incident, a group of officers began walking toward a few dozen rally attendees who were still in the downtown area after curfew.

Video footage shows a tall, white-haired Gugino approaching the officers head on.

Gugino said he remembers alarmed thoughts flashing through his head when he saw officers moving toward the demonstrators, but "has no idea" what he said to police in that moment.

"I thought, Oh my God and thats all I can remember," he said.

In the seconds following, two officers in the advancing group shoved Gugino away from them and he stumbled and fell backward, his head audibly cracking against the pavement.

Emergency personnel arrived soon after, and Gugino was whisked to the Erie County Medical Center.

The two officers involved, Robert McCabe and Aaron Torgalski, were suspended without pay and later charged with second-degree assault.

They pleaded not guilty, and are currently suspended with pay, as officers cannot be suspended without pay for more than 30 days, according to a city spokesperson.

The City of Buffalo and the Buffalo Police Department declined to comment further on the incident.

More: Buffalo police officers seen pushing man to ground charged with assault

More: New York signs sweeping police reforms into law after George Floyd death. What they will do

Take your best shot

What followed for Gugino werean avalanche of tests, scans and physical therapy for the hospital. After weeks in bed, standing or walking became a challenge, and he had vivid nightmares.

"Every time youd sit up, you would get dizzy," he said. "It was like you were on a boat all the time."

His pain was manageable with Tylenol, which he said he rarely used for minor aches and pains, even at 75.

He was monitored by medical staff day and night, and couldnt get out of bed or go to the bathroom without their help.

On the positive side, hed be offered cookies in the middle of the night. His flavor of choice? Coconut.

Meanwhile, cards, letters and other well wishes poured in. He slept for hours in the days after the incident, disconnected from the whirlwind of global internet commentary around his actions and the police response.

He has since seen and heard snippets of strangers accusations that he was a "leftist provocateur," that his fall was a hoax or that he was wearing a pack of fake blood under his mask.

President Donald Trump publicly considered the validity of such theories about Gugino on Twitter the following week, saying that Gugino "could be an antifa provocateur" and that he "was pushed away after appearing to scan police communications in order to black out the equipment."

Guginos lawyers got angry emails questioning why theyd defend "a faker," he said. But Gugino is unfazed by the accusations.

"I was like, Go ahead, take your best shot," he said.

The incident didnt cloud his view of police; he still regards them as regular citizens who work within a system he believes is broken.

"I come from the suburbs, and theres no problem with police in a white neighborhood," he said. "Im not scared of the policemen, but the system is screwed up."

After about a month, Gugino was released from the hospital and was able to walk out using a cane.

Hes living with family outside of New York and plans to close on a new home in Buffalo in September.

'Black Lives Matter': Amherst man pushed by police responds after Trump tweet

Martin Gugino's lawyer: He has brain injury, fractured skull after being pushed by police

When it comes to justice, Gugino is interested in so many causes that hell start talking about a new one before hes finished discussing the first.

He retired in 2003 after decades of working at FirstEnergy Corp. in Cleveland, Ohio, and a stint living in California. He eventually moved back to Buffalo to care for his ailing mother, who died six years ago. He has no spouse or children.

Even after a brain injury, he has split-second recall for specific details about years-old court cases, such as the Benny Warr case in Rochester, in which a black man in a wheelchair alleged that he was unlawfully arrested and beaten by police.

Guginos values rest solidly on the rights enshrined in the Constitutions First Amendment, which reads that "Congress shall make no law... abridging the freedom of speech...or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

But he believes these values are often lost on modern government and law enforcement officials.

He used the example of a 2010 Veterans for Peace rally in front of the White House, which protested the wars in Afghanistan, Iraq and other conflicts. More than 130 attendees were arrested.

"Youre going to the White House and youre saying, Stop the war. That means the United States should come out and say, Thank you so much, and were writing down all your complaints," Gugino said.

Given the countrys foundation, those involved in more recent protests and rallies should be treated with personal and ideological respect, and law enforcement officials should know whether the laws they protect are themselves legal, he said.

Still, he has hope, because of his countrys democratic roots.

He pointed to Mao Zedongs Hundred Flowers campaign in Communist China in the 1950s, where Zedongs solicitation of feedback on his government from the intellectual community quickly turned into a crackdown on ideological critics.

"In America, we decided to let a hundred flowers bloom," Gugino said.

"And you know what that means? People are going to get together and start complaining, and realizing how theyre being treated. Are you going to invite them in? Are you going to understand what theyre up to? Thats what democracy does. Thats the difference between Mao Zedong and George Washington."

More: Buffalo protester Martin Gugino released from hospital and 'looks great'

More: Its time has come and gone; lets retire the word 'elderly'

Sarah Taddeo is the consumer watchdog reporter for USA Today Network's New York State Team.She investigates stories about your consumer rights, including scams, negligent landlords, safety issues and wayward businesses.

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Buffalo man shoved by police speaks on incident, his recovery and the First Amendment - The Times Telegram

Lawsuit seeks to block Tennessee abortion reversal law – Minneapolis Star Tribune

NASHVILLE, Tenn. Abortion rights groups on Monday filed a lawsuit challenging a newly enacted Tennessee law that would require women undergoing drug-induced abortions be informed the procedure can be reversed.

The complaint is the second legal battle targeting a sweeping anti-abortion measure Republican Gov. Bill Lee signed off on earlier this year.

The law focuses mainly on banning abortion once a fetal heartbeat is detected about six weeks into pregnancy, before many women know they're pregnant. That portion was challenged just hours after the GOP-dominated Statehouse advanced the bill during the final hours of the annual legislative session.

However, also tucked in the 38-page law is a requirement that doctors must inform women that drug-induced abortions may be halted halfway. Medical groups say the claim isn't backed up by science and there is little information about the reversal procedure's safety

Those who fail to comply with the law which doesn't go into effect until Oct. 1 will face a Class E felony, punishable by up to six years in prison. The lawsuit filed Monday seeks to prevent that requirement from being implemented.

A federal judge in North Dakota blocked a similar law last year.

"This medically unsound and factually inaccurate requirement is part of the coordinated war on truth and has no basis in science," Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said in a statement.

"Patients shouldn't be subjected to misinformation just to get a medication abortion. Adding insult to injury, threatening doctors with prison time makes this law that much more dangerous," McGill added.

Along with Planned Parenthood, plaintiffs include the Center for Reproductive Rights and the American Civil Liberties Union. These same groups filed the initial lawsuit challenging the fetal heartbeat ban.

A federal judge has since granted a temporary restraining order on the festal heartbeat ban, arguing that he was "bound by the Supreme Court holdings prohibiting undue burdens on the availability of pre-viability abortions."

According to the lawsuit submitted Monday, attorneys argue the law infringes on the First Amendment because it requires doctors to "communicate a content-based, viewpoint-based, and/or controversial government-mandated message that they would not otherwise recite concerning an experimental medical treatment that has not been shown to be safe or effective."

The suit also claims the law violates the Fourteenth Amendment because it illegally singles out abortion patients and physicians who provide the procedure.

Meanwhile, Lee has previously promised to do "whatever it takes in court" to defend the anti-abortion law. The Republican frequently touted that "protecting life" by limiting abortion is a top priority for his administration.

Later, as COVID-19 first began sweeping across Tennessee earlier this year, Lee attempted to block abortions under an executive order banning nonessential medical procedures that was issued to slow the spread of COVID-19.

A federal judge later ruled that Tennessee had to continue allowing abortions, arguing the state did not show any appreciable amount of personal protective equipment would be saved if the ban was applied to abortions.

The plaintiffs in that legal case are now seeking to have the state cover nearly $100,000 in legal fees.

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Lawsuit seeks to block Tennessee abortion reversal law - Minneapolis Star Tribune

Why Did Gov. Baker Activate the National Guard? – NBC10 Boston

Gov. Charlie Baker called 1,000 members of the Massachusetts National Guard into active duty Friday, but almost 72 hours later the administration will not say what, if anything, the activated Guardsmen have done since then or whether the Guard remains active Monday.

Though the governor's order did not give a detailed reason for the activation and his administration said the order was given "in the event that municipal leaders require their assistance," the call-up coincided with a weekend that saw violence crop up at and around demonstrations over policing and racial justice in other parts of the country.

"Governor Baker today signed an order activating up to 1,000 members of the Massachusetts National Guard in the event that municipal leaders require their assistance. National Guard personnel are deployed only at the request of, and in coordination with, the communities seeking support," a spokesman of the Executive Office of Public Safety and Security said in a statement Friday evening.

The governor's order says the Guard was being called upon "to provide necessary assistance to State and local civilian authorities and/or special duty and emergency assistance for the preservation of life and property, preservation of order, and to afford protection to persons."

The order is to remain in effect until further notice from Adjutant General Gary Keefe.

The administration's announcement of the call-up suggested that the National Guard was being tapped to function in a law enforcement capacity. The administration noted that National Guard military police units go through federally-accredited police training and are trained to Massachusetts standards and that members of the National Guard assisted local law enforcement agencies throughout the COVID-19 pandemic.

The project is a private-public partnership involving the state and local governments as well as entities such as MGM, Winn Companies and MassMutual.

It was not immediately clear whether or where the Guard was actually deployed. On Sunday, one Boston-area reporter shared video that appeared to show about two dozen Guard personnel and rows of Guard vehicles in Boston. Another reporter posted a photo from a demonstration in Roxbury where attendees held signs critical of Baker's decision to call upon the National Guard.

Karyn Regal, a reporter for WBZ Newsradio, reported late Monday morning that Massachusetts State Police Col. Christopher Mason said there was no specific threat to Massachusetts but that the National Guard was called up as part of "an abundance of caution" to "staff up and we prepare for all those contingencies."

"I think the call-up of the National Guard was a nod to ensuring that we would have the capacity to continue to be able to facilitate those First Amendment gatherings and make sure people can be heard and make sure people can execute their right, or utilize their right, of public gathering, and they can deliver the message," Mason said at an unrelated press conference, according to Regal. "We certainly have heard the message. And so we want to make sure we continue that people can peacefully gather, that they can voice their concerns, and that they can provide an opportunity for us to hear them."

A spokesman for the Executive Office of Public Safety and Security did not say Monday afternoon whether the Guard remained activated as of Monday, what the activated Guard members had done since being called up, or whether there had been any change in the limited details provided Friday.

Baker last held a public event on Thursday, in Springfield.

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Why Did Gov. Baker Activate the National Guard? - NBC10 Boston

Hearing for Kevin Lindke’s appeal of Port Huron election commission decision set for Sept. 14 – The Times Herald

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Mayoral candidate Kevin Lindke delivers remarks during a hearing regarding his qualifications to run for mayor Tuesday, July 28, 2020, in the Municipal Office Center in Port Huron. Port Huron's election commission agreed unanimously to reject his qualifications to run for mayor based on the city's one-year residency requirement.(Photo: Brian Wells/Times Herald)

The Port Huron mayoral hopeful whose qualifications to run for office were rejected by an election commission this summer is seeking to have that decision reversed in court.

Kevin Lindke, whos picked up a local social media following for being critical of officials, filedto run for mayor by the July deadline. Days after a fraud investigation by police, however, the citys election commission ruled he was ineligible to run because he didn't meet thecitys one-year residency requirement.

Now, a hearing is set for Sept. 14 beforeCircuit Judge Michael West.

Lindke is asking the court to reverse the commissions decision.

The issue for me is, the burden is on them, Lindkesaid last week. Like you ask for leases, I gave you leases. You ask for a verified statement, I gave you a verified statement. You don't get to then tell me where I live (and) where I don't live.

The city is asking the courtto dismiss Lindkes request, reiterating concerns from officials over alleged discrepancies among the multiple addresses he provided to the city as his place of residence.

Todd Shoudy, contracted attorney for the city of Port Huron, speaks during a hearing regarding mayoral candidate Kevin Lindke's qualifications to run for mayor Tuesday, July 28, 2020, in the Municipal Office Center in Port Huron.(Photo: Brian Wells/Times Herald)

In the citys reply to Lindkes courtfiling and in a July police report, the cityalleges Lindke provided addresses on 21st, 23rd and Minnie streets on separate occasions while trying to confirm residency in petition forms to file to run for mayor. It also reported he registered to vote using a commercial address on Poplar Street.

According to the city, officials were unable to verify concrete residency at any of them. They pointed to interviews of neighbors and other associates, lack of utility use and real estate changes.

During their July 28 hearing, members of Port Hurons election commission asked if Lindke could provide other evidence he resides in the city. Candidates for mayor and City Council must live in the city for at least a year before the election to be eligible.

But Lindke told officials he didnt believe he had to provide additional proof.

In his circuit court request, Lindke claims the investigation didnt disprove residency and that the commission very suspiciously convened and conspired to deny his candidacy.

The citys reply maintains the city clerk had received information from Lindke that cast serious doubt on whether he met requirements. It also mentions that Lindke did not obtain an order to show cause or set the matter for a timely hearing.

Todd Shoudy, the citys attorney, said they had requested the hearing, expecting to move forward with the Sept. 14 date despite time constraints on when election ballots would be printed.

Lindke, who is litigating the issue without a lawyer, said he thought the citys fraud investigation of his addresses seemed to confirm his fear that officials would use reported residences to put me under surveillance. On Friday, he acknowledged hes always used the address of a relatives house in East China for court documents for the same reason.

Lindke also has two open federal lawsuits one against Port Huron City Manager James Freed and another against Circuit Judge Cynthia Lane. Both involve social media and First Amendment rights.

The latter was first filed in June 2019 after Lane granted a personal protection order against Lindke for an ex-spousal relative.It was over Facebook posts referencingthat relative and the proximity of a sex offender to his young daughter while visiting amid an ongoing custody dispute.

The original complaint called Lanes granting the PPO a social media injunction that constitutes a content-based legal prohibition on constitutionally protected free speech. Philip Ellison, Lindkes attorney in both lawsuits, called it a gag order.

An amended complaint later incorporated St. Clair County Sheriff Tim Donnellon as an additional defendant over enforcement of the PPO.

Circuit Judge Cynthia Lane speaks during a sentencing hearing in February 2017.(Photo: JEFFREY M. SMITH, TIMES HERALD)

St. Clair Countys reply to the complaints rejected the claims, maintaining officials acted on statute and adding that Lindke should be required to complete a pending hearing on his motion to terminate the PPO.

After Lindkes complaint was twice updated, Shoudy, whose firm also represents the county, said another motion to dismiss is still pending.

But he said theres also another underlying question about the case.

When should a federal court get involved in a state circuit court ruling where the allegation is that a PPO violated Mr. Lindkes First Amendment rights? Shoudy said. So, it'd be like the ex parte PPO that was entered. So, the question is, if he wants to challenge that, should he go to the Michigan Court of Appeals? Or can he go to the federal United States District Court for the Eastern District of Michigan? That's the procedural issue that is currently awaiting a judicial ruling. And I don't expect a ruling any time soon.

The lawsuit against Freed is more recent.

Port Huron City Manager James Freed discusses measurements being taken by the city to prevent the spread of coronavirus during a media briefing Thursday, March 12, 2020, in the Municipal Office Center in Port Huron.(Photo: Brian Wells/Times Herald)

It was filed in April after comments by Lindkeon Freeds Facebook page were deleted and Lindke was blocked. That complaint alleges Lindkes First Amendment rights were once again violated and that Freed only deleted comments about the citys response to COVID-19 to suppress dissent in a public forum.

In its reply to the complaint, the city admits Freed has kept a Facebook page categorized as a public figure but that, despite sharing some local goings-on about the city, he also posts personal items, such as pictures of his family. Shoudy said there remained a question of how personal the page was, entitling Freed to discretion.

Currently, Shoudy said that case is in its discovery phase and that hes awaiting more information after requesting details on Lindkes own social media use.

Lindkes reply asked the federal court to reject that request questioning relevancy and keeping the focus on Freeds Facebook. In response, the citys alleges a long history of Lindke using cyberbullying or cyberstalking tactics in an attempt to harm or destroy the personal life of both private and public individuals on social media.

Ellison said his client is trying to hold people accountable who are generally not, and that in one case, to question those who put a wedge minimally between him and his daughter.

I think what's important behind it is if Kevin was alone in his own thinking, he wouldn't have the following that he has, Ellison said, referring to Lindkes Facebook following. And I think the fact that his following, for the Port Huron area itself, is large and continues to grow is a reflection of (the) disenchantment by citizens of the area who probably have been suffering from the same sort of discontent from their local leaders as Kevin has.

Contact Jackie Smith at (810) 989-6270 or jssmith@gannett.com. Follow her on Twitter @Jackie20Smith.

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Hearing for Kevin Lindke's appeal of Port Huron election commission decision set for Sept. 14 - The Times Herald

First Amendment – Rights, U.S. Constitution & Freedoms …


The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights a written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton, gathered in Philadelphia to draft a new U.S. Constitution.

Antifederalists, led by the first governor of Virginia, Patrick Henry, opposed the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for peoples individual rights.

The debate over whether to ratify the Constitution in several states hinged on the adoption of a Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists, promised a concession to the antifederalists a Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 the first two years that President George Washington was in office.

The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.

The First Amendment text reads:

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.

While the First Amendment protected freedoms of speech, religion, press, assembly and petition, subsequent amendments under the Bill of Rights dealt with the protection of other American values including the Second Amendment right to bear arms and the Sixth Amendment right to a trial by jury.

The First Amendment guarantees freedom of speech. Freedom of speech gives Americans the right to express themselves without having to worry about government interference. Its the most basic component of freedom of expression.

The U.S. Supreme Court often has struggled to determine what types of speech is protected. Legally, material labeled as obscene has historically been excluded from First Amendment protection, for example, but deciding what qualifies as obscene has been problematic. Speech provoking actions that would harm otherstrue incitement and/or threatsis also not protected, but again determining what words have qualified as true incitement has been decided on a case-by-case basis.

This freedom is similar to freedom of speech, in that it allows people to express themselves through publication.

There are certain limits to freedom of the press. False or defamatory statements called libel arent protected under the First Amendment.

The First Amendment, in guaranteeing freedom of religion, prohibits the government from establishing a state religion and from favoring one religion over any other.

While not explicitly stated, this amendment establishes the long-established separation of church and state.

The First Amendment protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes. It also protects the right to protest the government.

The right to petition can mean signing a petition or even filing a lawsuit against the government.

Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech:

Schenck v. United States, 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I.

The Schenck decision helped define limits of freedom of speech, creating the clear and present danger standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistance as dangerous to national security.

New York Times Co. v. United States, 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman, Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson, 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the administration of President Ronald Reagan.

The Supreme Court reversed a Texas courts decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

Freedom of the Press:

New York Times Co. v. United States, 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman, Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the Lemon Test for determining when a state or federal law violates the Establishment Clausethats the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry, the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU, the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the state and subpoenaed the NAACP for records including their membership list, the NAACP brought the matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II writing: This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.

Edwards v. South Carolina (1962): On March 2, 1961, 187 black students marched from Zion Baptist Church to the South Carolina State House, where they were arrested and convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on the free speech, free assembly, and freedom to petition of the students.

The Bill of Rights; White House.History of the First Amendment; The University of Tennessee, Knoxville.Schenck v. United States; C-Span.

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First Amendment - Rights, U.S. Constitution & Freedoms ...

First Amendment | Contents & Supreme Court Interpretations …

First Amendment, amendment (1791) to the Constitution of the United States that is part of the Bill of Rights and reads,

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 clauses of the amendment are often called the establishment clause, the free exercise clause, the free speech clause, the free press clause, the assembly clause, and the petition clause.

The First Amendment, like the rest of the Bill of Rights, originally restricted only what the federal government may do and did not bind the states. Most state constitutions had their own bills of rights, and those generally included provisions similar to those found in the First Amendment. But the state provisions could be enforced only by state courts.

In 1868, however, the Fourteenth Amendment was added to the U.S. Constitution, and it prohibited states from denying people liberty without due process. Since then the U.S. Supreme Court has gradually used the due process clause to apply most of the Bill of Rights to state governments. In particular, from the 1920s to the 40s the Supreme Court applied all the clauses of the First Amendment to the states. Thus, the First Amendment now covers actions by federal, state, and local governments. The First Amendment also applies to all branches of government, including legislatures, courts, juries, and executive officials and agencies. This includes public employers, public university systems, and public school systems.

The First Amendment, however, applies only to restrictions imposed by the government, since the First and Fourteenth amendments refer only to government action. As a result, if a private employer fires an employee because of the employees speech, there is no First Amendment violation. There is likewise no violation if a private university expels a student for what the student said, if a commercial landlord restricts what bumper stickers are sold on the property it owns, or if an Internet service provider refuses to host certain Web sites.

Legislatures sometimes enact laws that protect speakers or religious observers from retaliation by private organizations. For example, Title VII of the federal Civil Rights Act of 1964 bans religious discrimination even by private employers. Similarly, laws in some states prohibit employers from firing employees for off-duty political activity. But such prohibitions are imposed by legislative choice rather than by the First Amendment.

The freedoms of speech, of the press, of assembly, and to petitiondiscussed here together as freedom of expressionbroadly protect expression from governmental restrictions. Thus, for instance, the government may not outlaw antiwar speech, speech praising violence, racist speech, pro-communist speech, and the like. Nor may the government impose special taxes on speech on certain topics or limit demonstrations that express certain views. The government also may not authorize civil lawsuits based on peoples speech, unless the speech falls within a traditionally recognized First Amendment exception. This is why, for example, people may not sue for emotional distress inflicted by offensive magazine articles about them, unless the articles are not just offensive but include false statements that fall within the defamation exception (see below Permissible restrictions on expression).

The free expression guarantees are not limited to political speech. They also cover speech about science, religion, morality, and social issues as well as art and even personal gossip.

Freedom of the press confirms that the government may not restrict mass communication. It does not, however, give media businesses any additional constitutional rights beyond what nonprofessional speakers have.

Freedom of petition protects the right to communicate with government officials. This includes lobbying government officials and petitioning the courts by filing lawsuits, unless the court concludes that the lawsuit clearly lacks any legal basis.

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First Amendment | Contents & Supreme Court Interpretations ...

First Five: Standing up for the First Amendment and Austin Tice – McDowell News

One of the most interesting things about the press is that despite being the only profession actually named in the Constitution, journalists themselves are not defined by any legal document or ordained by any government body. As my colleague Gene Policinski wrote on World Press Freedom Day a few years back, In the larger sense, were all press every time we post, tweet or blog whether we want that title or not. Media critics and advocates alike are fond of noting the press has no more and no less privilege under the First Amendment than any other U.S. citizen.

This is as true for the professional journalists who covered the recent Black Lives Matter protests as it is for the Minneapolis teenager who recorded the killing of George Floyd, which sparked those protests in the first place. Anyone who cares enough to expose wrongdoing people in power is serving as a watchdog. Anyone who wants to make truth known to the public at large wields the power of the press.

But the fact that anyone can do this doesnt detract from its significance, or the risks that it might entail.

Next week, it will have been eight years since Austin Tice went missing. Austin was a Georgetown law student and former U.S. Marine Corps officer who went to Syria as a freelance journalist in 2012. He was also one of the only Western journalists on the ground while the Syrian conflict was unfolding and he made it his mission to report on the impact the conflict was having on civilians. On July 25, 2012, he posted this on his Facebook page, responding to those who told him he was crazy to try to report what was happening in Syria: We kill ourselves every day with McDonalds and alcohol and a thousand other drugs, but weve lost the sense that there actually are things out there worth dying for. Weve given away our freedoms piecemeal to robber barons, but were too complacent to do much but criticize those few who try to point out the obvious.

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First Five: Standing up for the First Amendment and Austin Tice - McDowell News

FIRST 5: Standing up for the First Amendment; and Austin Tice – Salina Post

Lata Nott. Photo courtesy Freedom Forum.


Last week, I spoke (virtually, of course) with agroup of journalism students about how the First Amendment relates to, and protects, the work theyll soon be doing. I walked them through the major legal doctrines that protect freedom of expression in this country:

The government cant create laws that censor or punish people for their speech, unless theres a compelling purpose behind them and those laws are the least restrictive way to achieve them;

It cant apply laws or take actionsin a manner thatdiscriminates against people based on the point of view theyre expressing;

It cant engage in prior restraint prevent something from being published unless it can prove that that publication would cause immediate and irreparable harm to the United States.

Its a lecture Ive given many times over the past few years, but afterwards, one of the students asked me a question Id never been asked before. Who makes sure the government isnt doing any of the things it cant be doing? Is there an agency that ensures compliance with the First Amendment?

For the most part, its just us, I replied and made some sort of expansive hand gesture in an effort to letthe studentknow that us encompassed her, me, the other 20 people on the Zoom call and the American people as a whole.

It was an off-the-cuff answer, and if Id had more time and my Wi-Fi connection had been less laggy, I might have said that its the courts that strike down unconstitutional laws and government actions, although executive agencies like the Department of Justice andlegislative bodies like Congress can certainly play a role by pushing for and implementing further safeguards for free expression. But my original answer still stands. Courts hear cases when lawsuits are brought by peoplewhose rights have been violated. The executive and legislative branches respond to demands from their constituents. And the public learns about the governments transgressionsthrough the press.

One of the most interesting things about the press is thatdespite being the only profession actually named in the Constitution, journalists themselves are not defined by any legal document or ordained by any government body.As my colleagueGene Policinskiwroteon World Press Freedom Day a few years back,Inthe larger sense, were all press every time we post, tweet or blog whether we want that title or not. Media critics and advocates alike are fond of noting the presshas no more and no less privilege under the First Amendment than any other U.S. citizen.

This is as true for theprofessional journalists who covered the recent Black Lives Matter protestsas it is for theMinneapolis teenager who recorded the killing ofGeorge Floyd, which sparked those protests in the first place. Anyone who cares enough to expose wrongdoingpeoplein power isserving as a watchdog. Anyone who wants to make truth known to the public at largewields the power of the press.

But the fact that anyone can do this doesnt detract from its significance, or the risks that it might entail.

Next week, it will have been eight years sinceAustin Ticewent missing. Austin was a Georgetown law student and former U.S. Marine Corps officer who went to Syria as a freelance journalist in 2012. He was also one of the only Western journalists on the ground while the Syrian conflict was unfolding and he made it his mission to report on the impact the conflict was having on civilians. On July 25, 2012,he posted this on his Facebook page, responding to those who told him he was crazy to try to report what was happening in Syria: We kill ourselves every day with McDonalds and alcohol and a thousand other drugs, but weve lost the sense that there actually are things out there worth dying for. Weve given away our freedoms piecemeal to robber barons, but were too complacent to do much but criticize those few who try to point out the obvious.

On Aug. 14, 2012, three days after his 31st birthday, Austin Tice was taken captive as he was preparing to travel from Daraya, near Damascus, Syria, to Beirut, Lebanon. Diverse credible sources report that he is still alive. Austinsparents, who have unrelentingly advocated for his return, recently published anopen letterinThe Washington PostsPress Freedom Partnership newsletter that included this heartbreaking message:

Each year around Austins birthday and the date of his capture, theres a brief moment of renewed attention and media coverage.Our son is imprisoned every single day.Every single day Austin needs his colleagues in journalism to ask questions about what is being done to bring him home, to dig for answers when they meet with obfuscation and to hold U.S. government officials accountable for their actions or lack thereof.

Advocating for Austin and other journalists who have been unjustlytargeted or detained is in our hands. So is safeguarding ourFirst Amendment freedoms. As Austin pointed out, we cant afford to be complacent.

. . .

Lata Nott is a Freedom Forum Fellow. Contact her via email at[emailprotected], or follow her on Twitter at@LataNott.

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FIRST 5: Standing up for the First Amendment; and Austin Tice - Salina Post

Symposium: Free exercise, RFRA and the need for a constitutional safety net – SCOTUSblog

This article is part of aSCOTUSblog symposiumon the Roberts court and the religion clauses.

Kim Colbyis director of the Christian Legal Societys Center for Law and Religious Freedom. She was counsel on amicus briefs on behalf of the Christian Legal Society inEspinoza v. Montana Department of Revenue,Our Lady of Guadalupe School v. Morrissey-Berru, Tanzin v. TanvirandFulton v. City of Philadelphia.

Americans religious freedom depends on a patchwork of protections scattered throughout federal and state laws. Religious freedom is protected to a limited degree by the First Amendments free exercise clause; to a much greater degree, but only at the federal level, by the Religious Freedom Restoration Act; and to various degrees by specific religious exemptions tucked here and there into federal statutes and regulations. While state constitutions, as well as some state and local statutes, pay homage to religious freedom, when state courts apply them the results frequently tend to be less robust than their language would suggest.

The Supreme Courts 2019-20 term brought significant religious freedom victories. But it also highlighted the lack of a constitutional safety net for religious freedom. The 2020-21 term offers a critical opportunity to restore a constitutional safety net that has been sorely lacking for three decades.

Thirty years ago, the Employment Division v. Smith decision unexpectedly weakened the constitutional protection for religious freedom. The Smith decision substituted rational basis review or possibly, no review at all for strict scrutiny review whenever a burden on the free exercise of religion is imposed by a neutral and generally applicable law. The court has never explained what it means by a neutral and generally applicable law; it is still not clear whether Smith completely gutted the First Amendment protection for religious freedom or merely shrank it considerably and made it much more complicated and confused. Whatever the degree of damage, this loss of protection applies at the federal level and also at state and local levels.

The cases before the court this term and next term illustrate Smiths regrettable long-term consequences and demonstrate why the court should overrule Smith. A case to be heard next term, Fulton v. City of Philadelphia, expressly presents that question.

1. Constitutional protection at state and local levels is needed.

Americans religious freedom varies widely depending on the state in which they live. Smith deprived religious persons of previous bargaining power and incentives necessary to persuade state and local officials to respect religious freedom.

To provide protection in states, the court has labored to identify discriminatory treatment of religious persons because Smith itself left strict scrutiny in place when religious persons suffer discriminatory treatment. The court has utilized two distinct buckets to protect religious persons:

1. Discrimination based on religious status: In Espinoza v. Montana Department of Revenue, relying on the state constitution, Montana bureaucrats excluded parents and students from a state tuition tax-credit program because many participating families chose to send their children to religious schools. The court held that the Montana constitution impermissibly discriminated on the basis of religious status in violation of the federal free exercise clause.

2. Discriminatory treatment compared to similar secular conduct: Just three years after Smith, in Church of the Lukumi Babalu Aye v. City of Hialeah, the court unanimously ruled that a municipality violated the free exercise clause when it prohibited killing animals as part of a religious ritual, but not as part of a secular activity, such as hunting. In 2018, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court applied Lukumi in ruling that state officials unconstitutionally punished a man of deep religious convictions who refused to create a wedding cake to celebrate a same-sex wedding, but did not penalize other bakers who refused to create cakes with messages to which they personally objected.

Requiring government officials to treat religious conduct with the same respect given similar secular conduct has been an important, if unevenly applied, protection for religious freedom under the Smith regime. But it is not an adequate substitute for reliable constitutional protection of religious freedom achieved through consistent application of strict scrutiny analysis to laws that burden religious freedom. Fulton which involves a citys denial of licensure to a Catholic organizations foster-care program gives the court an opportunity to reinstate strict scrutiny for such laws.

2. RFRAs protection for religious freedom at the federal level requires reinforcement.

In response to Smith, Congress passed the Religious Freedom Restoration Act by an overwhelming, bipartisan vote, and President Bill Clinton signed it into law. RFRA requires the federal government to demonstrate a compelling interest unachievable by a less restrictive means before it may enforce a neutral, generally applicable law against a person whose sincerely held religious beliefs would be substantially burdened by the law.

RFRA, rather than the First Amendment, has provided the primary protection for Americans religious freedom at the federal level for 27 years. A singular legislative achievement, RFRA ensures a level playing field for Americans of all faiths by putting minority faiths and unpopular religious beliefs on an equal footing with faiths that are politically popular.

Two cases on the courts 2019 and 2020 dockets illustrate RFRAs importance to persons of all faiths. In Little Sisters of the Poor v. Pennsylvania, Catholic nuns returned to the Supreme Court for the third time in their nine-year effort to win the right to serve the poor without violating their religious convictions regarding contraceptives. Ruling in the Little Sisters favor, the court held that the federal government had the authority under RFRA to provide a generous religious and moral exemption from an administrative regulation that required employers to provide contraceptive coverage through their insurance plans. Unfortunately, the court did not follow the course urged by Justices Samuel Alito and Neil Gorsuch to find that RFRA not only permitted the exemption but actually required it. In a concurrence, Justice Elena Kagan, joined by Justice Stephen Breyer, provided a roadmap for the lower court on remand to rule against the religious exemption a prospect that may necessitate a fourth trip to the Supreme Court for the Little Sisters before final victory.

The second RFRA case, Tanzin v. Tanvir, will be argued this fall. Three Muslim men, one a U.S. citizen and two lawful permanent residents, seek to recover money damages from federal FBI employees who allegedly retaliated against them by placing them on the No Fly List for their refusal to become FBI informants within their religious congregations. The issue before the court is whether RFRAs authorization of appropriate relief includes recovery of money damages from federal officials acting in their personal capacities.

The coalition of 68 organizations from across the religious and political spectrum that urged RFRAs passage had one overriding operative principle: RFRA would protect all Americans religious freedom. Anticipating RFRAs main task as protecting minority faiths, few proponents foresaw that Catholic nuns would be denied a modest religious exemption by a popularly elected administration and, therefore, need RFRAs protection.

But the times have changed rapidly and dramatically. Since 2010, religious social conservatives have increasingly faced a rigid insistence that they conform to and promote the orthodoxies of the abortion and LGBT movements even when those orthodoxies directly conflict with their religious beliefs.

As a result, Congress is being pressured to eviscerate RFRA. The Equality Act, H.R. 5, passed the House of Representatives in May 2019 by a vote of 236-173, with a provision buried in it to gut RFRA. The Equality Acts proponents are willing to forfeit all Americans religious freedom in order to suppress religious dissent.

In its decision this term in Bostock v. Clayton County, which re-interpreted Title VII of the Civil Rights Act to include sexual orientation and gender identity as protected classes, the court offered reassurance that RFRA, Title VIIs religious exemption and the ministerial exception will suffice to protect religious individuals and institutions. But more needs to be done to make its promise a reality. This is particularly true because many state officials are likely to apply Bostocks rationale to re-interpret state prohibitions on sex discrimination in employment, public accommodations and government programs. Title VIIs religious exemption and RFRA do not follow Bostocks analysis downstream to the states.

The courts reaffirmation in Our Lady of Guadalupe School v. Morrissey-Berru of the First Amendments strong protection for religious employers decisions about who will lead their religious mission and teach their religious beliefs does apply to the states. But the protection, while strong, is limited and does not extend to all employees.

More to the point, Our Ladys protection of this essential right was possible only because, eight years ago in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the court set Smith to one side. In Hosanna-Tabor, the U.S. government argued that the free exercise clause offered no protection to a religious congregations decisions regarding who would be its minister or teach its faith in its school. The government understandably relied on Smith for this jaw-dropping proposition, only to find its reliance rejected by a unanimous court. But by requiring the court continually to cabin it or create workarounds, Smith works distinctive institutional damage to the courts reputation.

RFRA and the ministerial exception have performed yeomans work. But they urgently need reinforcement through restoration of consistent and reliable constitutional protection for religious freedom.

By protecting all religious beliefs regardless of their popularity, religious freedom makes it possible for Americans with starkly different worldviews to live peaceably together. Now is the time to restore substantive constitutional protection for all Americans regardless of what they believe or where they live.

Posted in Symposium on the Roberts court and the religion clauses, Featured

Recommended Citation: Kim Colby, Symposium: Free exercise, RFRA and the need for a constitutional safety net, SCOTUSblog (Aug. 10, 2020, 11:20 AM), https://www.scotusblog.com/2020/08/symposium-free-exercise-rfra-and-the-need-for-a-constitutional-safety-net/

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Symposium: Free exercise, RFRA and the need for a constitutional safety net - SCOTUSblog

US Department of Education Reaffirms Commitment to Protecting the Religious Liberty of Students and Religious Organizations – U.S. Department of…

WASHINGTON U.S. Secretary of Education Betsy DeVos announced today guidance to protect the religious liberty of individuals and institutions participating in Department of Education programs. This action is part of ongoing efforts by the Department to advance religious liberty protections and delivers on President Donald J. Trumps Executive Order 13798, Promoting Free Speech and Religious Liberty.

This Administration will continue to protect the religious liberty and First Amendment rights of every student, teacher and educational institution across the country, said Secretary DeVos. Too many misinterpret the separation of church and state as an invitation for government to separate people from their faith. In reality, the First Amendment doesnt exist to protect us from religion. It exists to protect religion from government. Todays guidance reaffirms our commitment to protecting our first liberty and ensuring that discriminatory restrictions on access to federal grant funding are no longer tolerated.

This guidance follows recent Supreme Court victories for religious liberty, as Espinozav. Montana Department of Revenueand Trinity Lutheran v. Comercurtailed religious discrimination and thus strengthened protections for religious organizations.

The guidance was drafted pursuant to a directive from the Office of Management and Budget requiring each agency to publish policies detailing how they will administer federal grants in compliance with Executive Order 13798, as well as the Attorney Generals Oct. 6, 2017, Memorandum on Religious Liberty, and the Office of Management and Budgets Jan. 16, 2020, Memorandum.

Notably, the guidance announces a new process by which individuals and organizations can inform the Department of a burden or potential burden on their religious exercise under the Religious Freedom Restoration Act (RFRA) to adequately protect their religious liberties while participating in Department programs.

The new guidance also, consistent with First Amendment principles and Department regulations, does the following:

Full text of the guidance can be found here.


US Department of Education Reaffirms Commitment to Protecting the Religious Liberty of Students and Religious Organizations - U.S. Department of...

Federal judge rules wedding receptions in New York state can be held at 50 percent capacity and not capped at 50 people – WKBW-TV

BUFFALO, N.Y. (WKBW) A federal judge has delivered some much-needed relief to frustrated brides-to-be in New York, issuing a temporary injunction allowing wedding receptions to be held at 50 percent of the venue's capacity and not be capped at 50 people.

Judge Glenn Suddaby of the Northern District of New York ruled in favor of two couples with weddings booked at the Arrowhead Golf Club in Akron, who-- along with the co-owner of the club-- sued Governor Andrew Cuomo, Attorney General Letitia James, Erie County Executive Mark Poloncarz, the Erie County Department of Health, and the Empire State Development Corporation.

The couples claimed the restrictions put in place by the governor's executive order in March at the start of the COVID-19 pandemic violated their First Amendment and Fourteenth Amendment rights, stating the "restriction will deprive Plaintiffs of an 'irreplaceable life event' (i.e., their ability to have a wedding that allows their friends and family to participate to the full extent contemplated by their Christian faith)."

"We're Christians and we really do believe that a wedding is a ceremony to bring glory to God and we wanted to do that in front of witnesses," said Jenna Crawford, a newly wed and plaintiff in the lawsuit.

"The fact that on a Wednesday or Thursday we could have 200 plus people here sitting in and eating at a restaurant and that's completely allowed by law, but then the very next day on a Friday, we can't have any more than 50 people. If that doesn't scream unequal treatment, I don't know what does," said Lucas James, co-owner of Arrowhead Golf Club.

The ruling allows wedding reception halls to operate at the same level of service as restaurants, which is 50 percent capacity for indoor dining.

"It was a sigh of relief. It was a long journey and expensive. We spent almost $40,000 to get there on behalf of these couples. I think there's kind of a feeling of like what's next?" said Clinton Holcomb, co-owner of Arrowhead Golf Club.

Less than 12 hours before the oral arguments were first heard, the venue's liquor license was suspended.

"On Thursday morning, August 6th they had an emergency meeting about what to do with regards to Arrowhead. They decided the best thing they could do would be to pull our liquor license. We found that out Thursday evening which was obviously kind of shocking to us given that they knew that we had our oral arguments in front of a federal judge literally the next morning," Holcomb said.

"The judge's decision is irresponsible at best, as it would allow for large, non-essential gatherings that endanger public health," a spokesperson for the governor told 7 Eyewitness News in response to the ruling. "We will pursue all available legal remedies immediately and continue defending the policies that have led New York to having - and maintaining - one of the lowest infection rates in the country, while cases continue to rise in dozens of other states."

Judge Suddaby's ruling states wedding venues and guests must comply with the same rules in place for restaurants, including tables placed at least six-feet apart from one another and mandatory face coverings when not seated.

Holocomb and James said they appreciate anyone who would like to help them fund this legal battle through their GoFundMe.

Anyone seeking additional information about the lawsuit can email Holocomb at clint@discovercbd.com.

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Federal judge rules wedding receptions in New York state can be held at 50 percent capacity and not capped at 50 people - WKBW-TV