Accused of First Amendment Violation Against Churches, City of McKinney Amends Stay-At-Home Order – The Texan

When McKinney Mayor George Fuller issued a stay-at-home orderon Thursday, First Liberty Institute, a legal organization committed to defending religious freedom, took notice. In a letter to the mayor, the organization asserted that the order violates the First Amendments Free Exercise Clause and the Texas Religious Freedom Restoration Act.

First Libertys general counsel, Michael Berry, sent the letter to Fuller on Friday morning asking him to more narrowly tailor his order so as not to burden churches and other religious institutions.

Within hours of receiving the letter, McKinney city officials changed the order.

We were not surprised with how they responded, but we were surprised with how quickly it came. We certainly commend the city of McKinney, Berry told The Texan.

The order had required that religious and worship services be conducted only online or by teleconference and limited those conducting the service to ten people. It was changed to allow religious services by video or teleconference, or by other means that comply with the CDCs guidelines for social distancing.

First Liberty had advised churches to follow the White House and CDC guidelines for slowing the spread of the virus.

Under the Texas Religious Freedom Restoration Act, the government can only substantially burden the free exercise of religion if it has a compelling governmental interest and does so by the least restrictive means possible.

You can ensure health and safety but do so in a way that doesnt violate the federal or state law or the Constitution, Berry said.

Berry pointed out that the first order, before amended, placed a substantial burden on religious practices and that the city did not use the least restrictive means available to it.

In contrast to its limit on churches, McKinneys previous order did not put a ten-person limit on other locations listed as essential, like the number of staff preparing take-out food at a restaurant or on workers in child care facilities.

However, First Liberty asserts that religious exercise is an essential and constitutionally protected activity listed in the First Amendment to the United States Constitution.

Berry pointed to creative ways that churches were staying within the CDC guidelines while still meeting together, like drive-in worship services where participants stayed in their cars to avoid contact with others and gathering in small groups of ten or less. Those were prohibited by McKinneys prior order.

Additionally, McKinney, found within Collin County, issued an order that was more restrictive than the one issued by Collin County Judge Chris Hill. The county has issued an order utilizing the least restrictive means possible and encouraging the highest level of personal responsibility.

It did not specifically limit religious gatherings but encouraged residents to avoid gathering in groups of more than ten.

When two orders are in conflict, Berry said, the county order supersedes according to Texas Local Government Code Section 418.108 (h).

When asked about other orders that might be problematic, Berry said they would be taking a look at orders all around Texas and the country. A citizen who believes an order in their county or city is unconstitutionally burdening the freedom of religion can consult the guidance on their website and is welcome to bring it to the attention of First Liberty.

A free bi-weekly commentary on current events by Konni Burton.

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Accused of First Amendment Violation Against Churches, City of McKinney Amends Stay-At-Home Order - The Texan

Trump Threat to Pull TV Licenses Over Coronavirus Ad Violation of First Amendment – PEN America

While mostly bluster, its a bullying attempt to intimidate the press says PEN America

(New York, NY) Donald Trumps presidential campaign this week sent a cease-and-desist letter to television stations airing ads critical of the way he has handled the coronavirus crisis, threatening to revoke their operating licenses. PEN Americas Nora Benavidez, director of U.S. free expression programs, issued the following statement.

Silencing critics is clearly a knee-jerk reaction for the president. He has a long history of tryingtoexploit the legal systemto scare his supposed adversaries. Its a troubling practice and a violation of the First Amendment. In the midst of an election andwhile theU.S.is grappling withan unprecedented public healthcrisis, its appalling for the president to focus in on using his influence to silence a critical television ad that is unquestionably protected political speech. The fact that this threatened action wouldnever hold up in court actually exposes it for whatit is: a bullying attempt to intimidatethepress and silencethepresidents critics.


PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.

CONTACT: Stephen Fee, Director of Communications, [emailprotected], +1 202 309 8892white house

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Trump Threat to Pull TV Licenses Over Coronavirus Ad Violation of First Amendment - PEN America

You’ve seen commercials for Marsy’s Law. Here’s the story behind the proposed Wisconsin constitutional amendment. – Milwaukee Journal Sentinel

Teri Nicolai speaks at an event supporting Marsy's Law for Wisconsin(Photo: Courtesy of Marsy's Law for Wisconsin)

A flood of advertising on social media and television is backing a proposed constitutional amendment as a way to cement the rights of crime victims in Wisconsin,but opponents are raising red flags about the damage the measure could do to the state's criminal justice system.

Marsy's Law, as the amendment is known, will appear on the April 7 ballot for voters across the state.The amendmenthasalready been approved by the state Senate and Assembly twice, in 2017 and 2019, and is now up for voters to decide.

Voters may have seen or heard ads running on TV, radio and social media aired by the well-funded campaign. Marsy's Law for Wisconsinspentmore than $128,000 on Facebook ads alone between March 19 and 26, according to the site's ad library report. The campaign is in the top 20 of spenders on ads for Facebook in the U.S., the report shows.

The Wisconsin Justice Initiative, one of the strongest opponents, has spent less than $200 on its opposition since September of last year.

Groups like the Wisconsin Justice Initiative and the ACLU of Wisconsin have sharply criticized the amendment. They say victims' rights are already protected in state law and that the wording on the ballotmay be misleading to voters. The proposed amendment, they say, would bog down the legal process and pollute the system by inappropriately inserting victims as a third party to the prosecution and defense in a criminal case.

Marsy Nicholas(Photo: Courtesy of Marsy's Law for Wisconsin)

The amendment stems from the killing of Marsy Nicholas in California in 1983. She was murdered by an ex-boyfriendwho had been stalking her.A week after her death, the ex-boyfriend confronted Nicholas' family in a grocery store,at a time when they did not know he had been released on bail.

Marsy's Law has been nationally championed by her brother, billionaire Henry T. Nicholas III. Nicholas is the former CEO and co-founder of the technology company Broadcom Corp.

The amendment is similar to others that have been passed in Illinois, California, North Dakota and South Dakota, along with several other states. Montana also passed the amendment, but it was overturned in 2017 because of issues with the way the question was posed to voters, according to the Bozeman Daily Chronicle.

In Wisconsin, the amendment would afford 16 additional rights to victims, according to the Marsy's Law for Wisconsin website, including the right to be treated with respect, the right to privacy, proceedings free from unreasonable delay, notification of proceedings, ability to confer with the attorney with the government, and the right to be heard during any proceeding, among others.

Teri Nicolai is shown in 2004 during her recovery from the brutal kidnapping at the hands of her ex-husband.(Photo: Jack Orton / Milwaukee Journal Sentinel)

Teri Nicolai, who was brutally attacked by her ex-husband in 2004, is a high profile proponent who appears in ads flooding the market in Wisconsin.The victim of a violent crime herself,Nicolai said that had Marsy's Law been in effect when she was going through the Wisconsin court system in 2004, she may have had a bigger say in whether or not her ex-husband should go to a trial instead of taking a plea deal.

The details of Nicolai's ordeal were horrifying.

Nicolai went to pick up her two daughters from her ex-husband's house

and when she arrived, Larsen told her that they were hiding inside the house, waiting for their mom to find them.

When Nicolai stepped through the door into the house, her ex-husband, David Larsen, attacked.

"He came up behind me and beat me over the head with a baseball bat," she said.

He removed some of her clothes and put duct tape around her wrists, ankles and head. He stuffed her socks in her mouth, Nicolai said.

"From there, he put me in a large Rubbermaid garbage container," she said.

Larsen filled the container with snow and drove the container from Racine to a storage facility in Illinois, near where he worked.

After being rescued the next day, Nicolai was taken to the hospital, where she found she had miscarried. Doctors did what they could to fight the extreme frostbite on her extremities, but ended up having to amputate all 10 of her toes.

After recovering, Nicolai watched as the case against Larsen made it through the Wisconsin justice system. She was disappointed when she found out that he was going to accept a plea deal for 35 years in prison, instead of having to go through a trial and be found guilty.

"I wanted him to answer for what he did," she said.

Nicolai did eventually see justice, she said, when Larsen was charged with several federal crimes because he took her across a state borderwhen he left her in the Illinois storage unit. He was sentenced to life in prison.

Opponents of the amendment acknowledge the impactof experiences like Nicholai'sbut say the powergiven to victims and making them into a third partyduring the legal process in addition to the defense and the state and extending the time it takes to see a case through damages the legal process.

"A party in a legal case is a person or entity whose rights are being decided, said Dennis Grzezinski, a lawyer representing the Wisconsin Justice Initiative.

Several times, opponentslike the ACLUof Wisconsin and the Wisconsin Justice Initiative have tried to stop the amendment.In December, Dane County Circuit Judge Frank Remington ruled that the question would remain on the ballot after a lawsuit was brought forward trying to stop it. Those challenging the referendum decided not to appeal the decision of the judge, and will instead argue that the amendment should not take effect if voters were to approve it.

The strongest opposition of the amendment has come from the Wisconsin Justice Initiative, which has gone as far as adding a "Marsy's Flaws" tab to its homepage, with information about the amendment.

"It's a really bad idea. It amounts to a wholesale alteration of our criminal justice system," Grzezinskisaid

He said that though there are some portions of Marsy's Law that are workable and even good ideas, other parts could be harmful to the state's justice system.

He worries about the time that trials could take if victims ask to be heard along every step of the way, the cost to the system to accommodate lengthier trials, the ability of victims to request an appeal be heard by the state Supreme Court, the ability to refuse discoveryand the loss of a defendant's rights, among other concerns.

Grzezinski said that the amendment fails to acknowledge that Wisconsin already has victims' rights in the constitution.

"The amendment ignores that Wisconsin was the first of 50 states to include in its own constitution a series of victims' rights," he said. "It ignores the fact that the rights have been doing a very good job."

The Initiativeis also concerned over the wording of the amendment as it appears on the ballot:

"Additional rights of crime victims. Shall section 9 m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require the rights of crime victims be protected with equal force to the protections afforded the accused while leaving federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?"

Grzezinski said that the question doesn't do enough to explain to voters what they are specifically approving.

"Who could oppose creating and enlarging the rights of victims?" he said. "That's essentially what the question tells the public. That question misrepresents what these changes will do. It expands 16 different categories of rightsand creates duties and requirements for law enforcement, prisonsand judges."

And as for all the money the group has been spending on advertisements, Grzezinskiisn't surprised that it's so high.

"One questionthis raises is whether the contents of the Wisconsin Constitution are simply up for sale to billionaires," he said.

Asma Kadri, a staff attorney with the ACLU of Wisconsin, said that the protections offered by the state and federal constitutions don't need the addition of Marsy's Law which may only serve to muddy the already complicated waters of the justice system.

"We believe it causes more harm than good," she said.

Kadri said that the waythe amendment is written poses more questions on how it will be enforcedand that other states that have enacted the law have struggled with enforcement, too.

"It's hard to determine how it will be implemented," she said.

In Florida, Marsy's Law was enacted about 15 months ago, said Barbra Peterson, the president of the Florida First Amendment Foundation, and since then it's caused a slew of problems.

One of the bigger ones has been access to information from police agencies, who are using Marsy's Law to curtail the flow of information to the public when a crime is committed. In one case, Peterson said, an officer got into an altercation with a suspect, and the officer ended up shooting and killing the suspect.

Under Marsy's Law, the department decided not to release the name of the officer involved, saying that he or she was a victim in the case.

In another case, a neighborhood woke one morning to find a car in the middle of an intersectionwith a decapitated body next to it. Under Marsy's Law, the department wouldn't release any information not the names of the victim or suspects, what took place orwhere it took place despite the fact that neighbors discovered the scene, Peterson said.

"Law enforcement agencies around the state are interpreting Marsy's Law and applying Marsy's Law in any way they think they should," she said.

And the unequal way that it's been applied throughout the state raises a lot of concerns, Petersen said. Some departments are still releasing information, while others release little to none.

"If I live near a city park and a 911 call goes out because a crime occurs in the park, what I find out depends on who responds to the call," she said.

There's also concern over law enforcement agencies using the law to prevent the release of names of officers involved in shootings or who are being internally investigated.

"Law enforcement officers have extreme power, they can arrest you," she said. "It's important to know people with that level of authority are acting within procedures, and when they don't, to know that steps to make sure this doesn't happen again are being taken."

Petersen said that people should push for interpretations to be put in place on the law.

"People need to know what they're voting for. Everyone wants to protect the victimbut also have to retain the ability to oversee law enforcement," she said. "And that's what we've lost with Marsy's Law."

Aside from the sharp criticism the amendment has received in Wisconsin, there is still a large base of supporters.

The Marsy's Law for Wisconsin website has a page dedicated to showcasing those who endorse the amendment, including Wisconsin Attorney General Josh Kaul. Sheriffs from across the state, as well as police chiefs are also listed as supporters, alongside district attorneys and mayors of several cities.

"We must do all we can to protect victims of crime. Im in favor of Marcys Law, and I believe we need to do more to assist law enforcement and victim advocates with the critical work they do to support victims," said Kaul, according to a release on the Marsy's Law website.

Myranda Tanck, communications director for Marsy's Law for Wisconsin, saidpassing the amendment in Wisconsin is a natural next step for the state, after the original passing of the Crime Victims' Bill of Rights in 1993.

"Passing Marsy's Law sends a strong message to victims that the system is on their side, and will allow them to enforce their rights in the courtroom, while not taking away any rights from the accused," she said.

If the amendment were to pass April 7, residents of Wisconsin would see a change in the protection of victims right away, she said.

"Victims will be able to invoke the State of Wisconsins Constitution to secure all of their rights as they navigate the difficult legal process, rather than see the rights of the accused automatically trump their own rights."

The accused would still be protected, too, Tanck said.

"The accused still has federal rights," she said.

Tanck also hopes that the passing of the amendment would encourage more victims of crimes to come forward like in the case of sexual assaults,which are more likely to go unreported.

"We have found in speaking to survivors that still too many victims are afraid to come forward. They fear for their safety and reputation," she said. "That's what we hope to curtail."

But the most important argument for the passing of the amendment is the fact that it will be able to help so many people.

"The adoption of this amendment will have a lasting positive impact on victims in the Badger State for generations to come," Tanck said.

RELATED: The April 7 election is still set to take place. Here's what we know so far

RELATED: How to get an absentee ballot in Wisconsin during the coronavirus outbreak

More information about Marsy's Law, and the text of the full amendment are available at http://www.equalrightsforwi.com. Information about arguments against the amendment are available at http://www.wjiinc.org.

Laura Schulte can be reached atleschulte@gannett.com and twitter.com/SchulteLaura.

Our subscribers make this reporting possible. Please consider supporting local journalism by subscribing to the Journal Sentinel at jsonline.com/deal.

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You've seen commercials for Marsy's Law. Here's the story behind the proposed Wisconsin constitutional amendment. - Milwaukee Journal Sentinel

House Departs Without Vote to Extend Expired F.B.I. Spy Tools – The New York Times

WASHINGTON House Democrats left the capital on Friday after passing the $2 trillion coronavirus relief legislation without taking up a Senate bill to temporarily revive three expired F.B.I. surveillance tools for terrorism and espionage investigations, ensuring that the laws will remain lapsed at least until the Senate returns from vacation next month.

The series of laws, which includes two provisions created by the Patriot Act after the Sept. 11, 2001, attacks, expired on March 15. They give investigators the power to get court orders for business records deemed relevant to a national security investigation, and to swiftly follow around a wiretap target who changes phone lines in an attempt to evade monitoring.

A spokeswoman for Speaker Nancy Pelosi did not explain why she did not bring up the legislation while House members were briefly back in Washington to vote on the stimulus package.

Kerri Kupec, a Justice Department spokeswoman, promoted changes that the F.B.I. has already made to tighten its use of the Foreign Intelligence Surveillance Act, or FISA, and said the department still wanted the House to pass the Senate bill.

We urge the House to approve the Senate-passed temporary extension, she said, as soon as possible to avoid any further gap in our national security capabilities over the next several weeks and look forward to working with the Senate when it takes up the Houses bipartisan package of reforms.

Still, the lapse of several more weeks may not have a significant operational effect on the F.B.I., said Julian Sanchez, a specialist in surveillance legal policy at the Cato Institute.

That is because of the way the law is written. A so-called savings clause permits the laws to remain in effect for investigations that already existed on March 15, or for new investigations into events that occurred before then.

The authorities remain available for either investigations open at the time of expiration or investigations predicated on underlying conduct that predates the sunset date, Mr. Sanchez said.

The F.B.I. has open-ended investigations into long-term organizational threats, including major terrorist groups like Al Qaeda and the Islamic State and the espionage agencies of foreign adversaries like Russia and China. Thus, the FISA court that has oversight of national security surveillance can still issue orders giving investigators the power to target a newly identified suspect linked to one of those entities.

The third expired provision permits eavesdropping on a so-called lone wolf terrorist who is not part of an established foreign terrorist group. That provision could be invoked now only if the F.B.I. can show that a newly identified targets suspicious conduct included actions before March 15.

But that theoretical risk may not matter operationally either, Mr. Sanchez said, noting that as far as has been disclosed, the F.B.I. has never used the lone wolf provision.

A majority of lawmakers in both chambers support extending the expired provisions, but they have been caught up in a larger argument over whether and how strictly to impose new restrictions on the F.B.I.s FISA powers after an inspector generals damning report found numerous factual errors and omissions in applications to target the former Trump adviser Carter Page during the Russia investigation.

The House passed a bill, negotiated by Ms. Pelosi and Representative Kevin McCarthy of California, the House Republican leader, this month before the provisions expired that would extend the expiring provisions while making changes to FISA.

The House bill, for example, would push the FISA court to appoint an outsider to critique the governments arguments when a wiretap application raised serious issues about First Amendment activity, which could include political campaigns.

It would also make clear that the government cannot use a FISA business records order to collect information like cellphone location data, which in a criminal investigation requires a search warrant that has a higher legal standard.

But amid objections from libertarian-leaning senators of both parties that the House bill fell short in curtailing surveillance powers, the Senate did not take it up.

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House Departs Without Vote to Extend Expired F.B.I. Spy Tools - The New York Times

Lawmaker: Law never meant to allow for hiding details of response plans – Gainesville Sun

MIAMI A law the Legislature passed three years ago allows Florida's flagship public university to keep secret all details about whether it had developed and was adhering to a response plan for the pandemic that has already infected at least 20 students, faculty and employees.

The University of Florida was not among the earliest schools in the United States to effectively close its campus, moving classes online last week and sending students home for the semester.

It was widely criticized for failing to quickly acknowledge the first positive cases of the virus among students on campus. One infected student a College of Dentistry student who treated patients after he felt sick said school officials urged him to keep quiet for at least five days.

The 2017 law allows the university to withhold details of its emergency plans or even whether it has any. It is among hundreds of formal exemptions that allow the government to withhold information from citizens under Florida's otherwise powerful public records law.

The University of Florida declined this week to release its pandemic plan to Fresh Take Florida, a news service operated by UFs College of Journalism and Communications, as part of investigative reporting to determine whether school leaders were following their plan. It cited the exemption: This reply completes your public records request, the school said.

A school spokesman, Steve Orlando, later confirmed with the general counsels office that it will not publicly release the pandemic plan.

The 2017 law also allows other Florida public colleges and universities to withhold information about their pandemic responses. It covers any universitys response to or plan for responding to an act of terrorism or other public safety crisis or emergency. Other schools, including Florida State University and the University of Central Florida, have not yet responded to requests by Fresh Take Florida for their pandemic plans.

The laws co-sponsor, Rep. Byron Donalds, R-Naples, told Fresh Take Florida that it was never intended to prevent disclosure of a universitys pandemic plans. Donalds said he urges school officials to voluntarily release the document.

I would hope that college officials would understand that in times like this, there are times when you want to share your plans, especially with your faculty and staff when it comes to a pandemic, he said. Donalds said the law was intended to protect terrorism plans from being revealed to would-be terrorists. He never imagined it would be applied to pandemics.

The 2017 law is set to expire in two years unless Florida lawmakers renew it. It's unclear whether the Legislature might change the law, since it prevents tens of thousands of students, parents, alumni, faculty and employees from knowing whether the university acted appropriately to protect those on campus. The House and Senate voted unanimously on the measure at every stage in 2017, and legislative records show that no one formally objected to the proposal during any committee hearings.

Im flabbergasted they would hide that at a time people crave information and want to know if theyre safe, said David Cullier, president of the National Freedom of Information Coalition and an associate journalism professor at the University of Arizona. Its a huge mistake.

The former president of the Tallahassee-based First Amendment Foundation, Barbara Peterson, said she did not oppose the legislation in 2017 because no one expected it would be applied to virus plans. It was intended to keep security plans for physical terror attacks out of the wrong hands to ensure the safety of students and faculty, she said.

Were not talking about Al-Qaeda storming the gates of our universities, she said. Were talking about a pandemic.

Some schools, such as the University of Mississippi, University of Houston, Villanova University and Indiana State University, openly publish their pandemic response plans on the internet. The U.S. government encourages colleges and universities to develop detailed pandemic responses, which it said will play an integral role in protecting the health and safety of students, employees and their families. Public health experts also encourage evaluating and assessing emergency plans and how they were implemented during and after pandemics, as an exercise in accountability and transparency.

Its nuts. Its actually outrageous that these records would be withheld, said Adam Marshall, a staff attorney at the Washington-based Reporters Committee for Freedom of the Press. This is exactly the kind of record there is the highest level of public interest in. It should have been made available online a long time ago.

In its response to a separate request for records about the College of Dentistry student who was infected with the virus, the University of Florida also cited the 2017 law as a reason it would not turn over those documents.

Cullier agreed that secrecy laws like Floridas were intended to prevent terrorists from circumventing security plans. To apply that to a virus is ludicrous and not how all that was intended, he said. He added that withholding details about UFs pandemic plans will inevitably cause people to wonder whether officials were embarrassed or hiding information.

If we cant trust our government, its going to cause more fear and suspicion and hoarding, he said.

Peterson said the pandemic plan might help students and parents understand whether and when expenses might be refunded and provide details about UFs evacuation plans. She noted the law doesnt prohibit the university from releasing its pandemic plan it allows the school to choose to keep it secret.

When people are scared pantsless, youre withholding information that could have squashed their fears and youre not doing it, she said. Shame on you.

The Florida secrecy law was proposed by Donalds and Rep. Bob Rommel, R-Naples. Rommel did not immediately respond to phone messages left at his home and office or email sent to him and his legislative scheduler. Then-Republican-Gov. Rick Scott signed the bill into law in June 2017. Scott, now a U.S. senator, last month said the federal government must do more to protect Americans from coronavirus.

Rommel, 57, is a multi-millionaire who co-owns a bayfront bistro on Fort Myers Beach that is temporarily shut down from the virus under orders from Gov. Ron DeSantis. He was chairman of the House Criminal Justice Subcommittee and vice chair of the Judiciary Committee and veterans affairs subcommittee.

Donalds, 41, is a long shot candidate among 10 Republicans running for Congress in Floridas 19th House district. He has described himself as a Trump supporting, liberty loving, pro-life, pro-2nd Amendment black man. He is a financial adviser with Wells Fargo in Naples, according to his state financial disclosure filings.

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Lawmaker: Law never meant to allow for hiding details of response plans - Gainesville Sun

Petitions of the week – SCOTUSblog

Posted Thu, March 26th, 2020 10:00 am by Andrew Hamm

This week we highlight petitions pending before the Supreme Court that address, among other things, whether the First Amendment prohibits a state from criminalizing threats to commit violence communicated in reckless disregard of the risk of placing another in fear, whether a guilty plea waives a challenge on appeal to the denial of a defendants Sixth Amendment right to represent himself and whether federal law preempts the application of state and local labor laws to the terms and conditions of participation in the federal au pair program.

Thepetitions of the weekare below the jump:

Morgan v. White19-1023Issue: Whether, if a petitioner defaults an ineffective-assistance-of-trial-counsel claim with some merit,Martinez v. Ryanallows a federal court to excuse the procedural default without requiring any further showing of prejudice.

Austin v. Illinois19-1029Issues: (1) Whether strict First Amendment scrutiny applies to a criminal law that prohibits nonconsensual dissemination of non-obscene nude or sexually oriented visual material; and (2) whether the First Amendment requires a law that prohibits nonconsensual dissemination of non-obscene nude or sexually oriented visual material to impose a requirement of specific intent to harm or harass the individual(s) depicted.

Capron v. Office of the Attorney General of the Commonwealth of Massachusetts19-1031Issue: Whether federal law preempts the application of state and local labor laws to the terms and conditions of participation in the federal au pair program.

Cant v. Moody19-1033Issue: Whether a plaintiff may pursue a claim underBivens v. Six Unknown Named Agents of the Federal Bureau of Narcoticsalleging that a federal officer fabricated evidence.

Department of Health and Human Services v. California19-1038Issue: Whether the Departments of Health and Human Services, Labor and the Treasury had statutory authority under the Patient Protection and Affordable Care Act and the Religious Freedom Restoration Act of 1993 to expand the conscience exemption to the contraceptive-coverage mandate.

Albence v. Ragbir19-1046Issues: (1) Whether the respondent, Ravidath Lawrence Ragbir, stated a cognizable constitutional claim regarding the selective enforcement of the immigration laws; and (2) whether the suspension clause guarantees a right to file a habeas petition challenging the revocation of an administrative stay of removal.

Kansas v. Boettger19-1051Issue: Whether the First Amendment prohibits a state from criminalizing threats to commit violence communicated in reckless disregard of the risk of placing another in fear.

Dewberry v. United States19-1052Issue: Whether a guilty plea waives a challenge on appeal to the denial of a defendants Sixth Amendment right to represent himself.

Hospira Inc. v. Eli Lilly and Company19-1058Issue: Whether a patentee may recapture subject matter via the doctrine of equivalents under the tangential relation exception by arguing that it surrendered more than it needed to during prosecution to avoid a prior-art rejection, even if a claim could reasonably have been drafted that would literally have encompassed the alleged equivalent.

Dr. Reddys Laboratories, Ltd. v. Eli Lilly and Company19-1061Issue: Whether, underFesto Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co.s tangential exception to prosecution-history estoppel, patent owners may recapture subject matter they could have claimed in prosecution but did not, by arguing that they surrendered more than they needed to during prosecution to address a rejection by the U.S. Patent and Trademark Office.

Posted in Morgan v. White, Austin v. Illinois, Capron v. Office of the Attorney General of the Massachusetts, Cant v. Moody, Department of Health and Human Services v. California, Albence v. Ragbir, Kansas v. Boettger, Dewberry v. U.S., Hospira Inc. v. Eli Lilly and Company, Dr. Reddys Laboratories, Ltd. v. Eli Lilly and Company, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week, SCOTUSblog (Mar. 26, 2020, 10:00 AM), https://www.scotusblog.com/2020/03/petitions-of-the-week-88/

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Petitions of the week - SCOTUSblog

Unincorporated Brevard County Beaches to Remain Open This Weekend, Municipal Beaches to Close | – SpaceCoastDaily.com

beachside parks, public parking to remain closedThe Brevard County Policy Group voted 7-2 Friday afternoon that beaches in unincorporated Brevard County will remain open throughout the weekend after all. Municipalities that will keep the beach ban include Cocoa Beach, Satellite Beach, Indialantic, Indian Harbour Beach and Melbourne Beach.

BREVARD COUNTY, FLORIDA The Brevard County Policy Group voted 7-2 Friday afternoon that beaches in unincorporated Brevard County will remain open throughout the weekend after all.

The majority of the same group had agreed 5-4 on Thursday to close the Space Coasts unincorporated beaches Friday through Sunday from 11 a.m. to 4 p.m.

Municipalities that will keep the beach ban include Cocoa Beach, Satellite Beach, Indialantic, Indian Harbour Beach and Melbourne Beach.

All unincorporated beachside parks, municipal beachside parks, Patrick Air Force Base beachside parks and beachside public parking access of the Brevard County, municipalities and Patrick Air Force Base will remain closed.

See the updated official Brevard County Commission beach closure proclamation here:

WHEREAS, on March 14, 2020, a State of Local Emergency was declared by Brevard County (Covid-19 Document #1); and

WHEREAS, on March 16, 2020 the First Amendment to the State of Local Emergency Proclamation was issued (COVID-19 Document #2); and

WHEREAS, on March 18,2020, during a Policy Group meeting, Sheriff Ivey conveyed he had a discussion with Governor DeSantis wherein the Governor requested that Brevard County issue an Order to close all beachside public parks and close all beach public parking access in an effort to reduce the spread of the COVID-19 virus during the ongoing pandemic;

WHEREAS, on March 18, 2020 the Second Amendment to the State of Local Emergency Proclamation was issued to close all beach public parking access in Brevard County (COVID-19 Document #3); and

WHEREAS, on March 26, 2020 the Policy Group issued a Beach Closure Order (COVID-19 Document #5); and

WHEREAS, during a special meeting of the Board of County Commissioners on March 27, 2020, the Board voted 4:1 to decline to allocate resources to enforce beach closures described in COVID-19 Document #5, entitled Beach Closure Order; and

WHEREAS, the Board of County Commissioners also requested that the Sheriff focus on more important public safety needs and similarly choose to use its resources to maximize public safety rather than closing safe public beaches, and

WHEREAS, in order to avoid having an Order without enforcement capability, and

WHEREAS, in order to maintain conformity with the Board of County Commissioners earlier 4:1 vote regarding the Beach Closure Order, (COVID-19 document #5) and

WHEREAS, in response to the earlier vote provided by the Board of County Commissioners, the Policy Group reconsidered the Beach Closure Order (COVID-19 Document #5) and voted to rescind the Beach Closure Order; and

WHEREAS, Chapter 252.38(3)(a), Florida Statutes, provides authority for a political subdivision such as Brevard County to declare a state of local emergency and to exercise certain powers and authority to safeguard the lives and property of its citizens and such declaration may be amended.

NOW THEREFORE, IT IS RESOLVED this 27th day of March 2020, that the Beach Closure Order issued on March 26, 2020 (COVID-19 Document #5) is hereby rescinded effective immediately. This does not prevent individual municipalities from taking action to close beaches within its incorporated area;

BE IT FURTHER RESOLVED that pursuant to the Second Amendment to the State of Local Emergency Proclamation issued on March 18, 2020 (COVID-19 Document #3), all County beachside parks, Municipal beachside parks, Patrick Air Force Base beachside parks and beachside public parking access of the County, Municipalities and Patrick Air Force Base will remain closed.


Read the rest here:

Unincorporated Brevard County Beaches to Remain Open This Weekend, Municipal Beaches to Close | - SpaceCoastDaily.com

Now More Than Ever, Prisoners Should Have Some Access to Social Media – EFF

COVID-19 has trapped many of us in our homes, isolating us from family and friends and limiting our movements. But there are few people who feel the isolating impacts of COVID-19 more acutely than those who are actually incarcerated in jails and prisons across the country. As Jerry Metcalf, an inmate in Michigan, wrote for the Marshall Projects Life on the Inside series:

For those of you reading this who feel trapped or are going stir-crazy due to your coronavirus-induced confinement, the best advice I can give youas someone used to suffering in long-term confinementis to take a pause, inhale a few deep breaths, then look around at all the things you have to be grateful for.

Metcalfs is an important perspective to have, but, unfortunately, it is increasingly difficult to hear from inmates like him. That's because prison systems are making it harder for the public to hear from incarcerated people through excessive restrictions on the ways prisoners can express themselves over the Internet.

As the pandemic unfolds, state agencies should take a flexible approach to enforcement of restrictions on inmates ability to connect with the outside world.

Its especially important to hear from Metcalf, and others like him, in this momentgiven the heightened risk COVID-19 poses to inmates. The virus has already demonstrated an ability to move swiftly through closed spaces, like cruise ships and nursing homesand its already made its way into several prison systems, the consequences of which well sadly see unfold over the next several weeks. As Metcalf described it, COVID-19 has turned his prison into a death trap. Given the potential humanitarian crisis many prisoners now face, its critically important to receive unvarnished reports from them about life inside prison walls.

For those outside of prison, social media has been an important tool during the pandemichelping us connect with family and friends, to share updates and news, and to stay informed.

But, overwhelmingly, the incarcerated cannot connect to the outside world in this way.

At EFF, weve long been concerned with government attempts to unduly limit prisoners speechespecially by limiting access to technology that would allow the incarcerated to lift their voices beyond the prison walls. These restrictions come in a variety of forms, but one type weve paid particular attention to in the past is limitations on access to social media.

Many states prohibit inmates from accessing or posting information to social media in any manner. Some states, like Alabama and Iowa (pdf), go so far as to limit the ability of third-parties outside of prisonlike a friend or relativeto post information to social media on an inmates behalf. Some of these policies can even extend beyond what we typically think of as social media, prohibiting access to email or even any online publication of prisoners speech (including, as a potential example, stories like Metcalfs published by the Marshall Project). Violations can carry extreme and disproportionate consequences. For example, some inmates in South Carolina received years in solitary confinement for posting on Facebook while in prison.

Even in calmer times, draconian limitations on social media access are dangerous and raise serious First Amendment concerns. Prisoners, and those who support them, use social media to raise awareness about prison conditions; to garner support for court cases or clemency proceedings; and to otherwise advocate for important social and political issues.

As weve said before, invoking the immortal words of Martin Luther King, Jr, whose writings from jail changed the course of civil rights in America:

Inmates may lose many liberties when they enter the correction system, but the ability to participate in debate online should not be one of them. Censorship of prisoners is also censorship of society at large because it deprives the public of the freedom to read the long letters, consider the long thoughts, and hear the long prayers of people who have lost their freedom.

The need to hear these voices now is particularly importantas prisons begin to close to outside visitors, and further isolate, in an attempt to stave off COVID-19. Jerry Metcalfs perspectivefrom inside a prison in Michigan in the midst of a global pandemicis equally important if its published by the Marshall Project or if its shared by a relative in a Facebook post. Whats important is that the world is able to hear his story, and those like him, right now.

As the pandemic unfolds, state agencies should take a flexible approach to enforcement of restrictions on inmates ability to connect with the outside world, including curbing the enforcement of overly restrictive social media policies. Well be carefully watching to make sure any restrictions that are applied are done so consistent with the First Amendment rights of inmates and those who support them.


Now More Than Ever, Prisoners Should Have Some Access to Social Media - EFF

Self-Quarantine Orders Meet the Right-Wing Militia Movement – Mother Jones

For indispensable reporting on the coronavirus crisis and more, subscribe to Mother Jones' newsletters.

It was only a matter of time before efforts to contain the coronavirus bumped up against the Sagebrush Rebellion.

Yesterday, Idahos Republican governor Brad Little issued a self-isolate order closing all nonessential businesses in the state, banning all gatherings, and ordering a halt to unnecessary travel. The order was designed to prevent the community spread of the novel coronavirus, which has infected more than 123 people in Idaho so far. But the order has already stirred up a hornets nest from those who arent inclined to follow such a directive without a fight: Namely the Bundy family and their followers in the right-wing militia movement who have engaged in armed standoffs with the federal government in the past over attempts to enforce the law.

On Thursday, Ammon Bundy, one of Nevada rancher Cliven Bundys 14 children, posted a video on Facebook inviting people to a public meeting in Emmett, Idaho, where he lives, to talk about the coercive measures included in the governors self-isolate order. He read from the 11-page document, explaining that it would prevent people from gathering, riding a scooter, or traveling around the state.Whats more, law enforcement would be empowered to issue fines or even putviolators in jail.

The last time it was illegal to meet together as a people on this land was before the Revolutionary War, he said. Since we won our independence, it has never been illegal to assemble as a people. Bundy then offered a brief tutorial on First Amendment rights and Supreme Court decisions acknowledging Americans natural rights to assemble peacefully.

It does not matter what is most safe or not, what is good or not, he said. Because in this case, the government does not have the right to do what theyre doing. They do not have a right to restrict you from going to church, worshiping, having meetings, or being with your family, grieving with them. They do not have that right. He compared the state government to someone trying to steal your backpack off a park bench;if that person is too big and you cant fight back, you can call on others in the park to help you. That is what we are doing today, he concluded. We are calling on you to help protect your own backpack and the very precious stuff you have in it.

The Bundy family made similar online appeals for support back in 2014, when they engaged in an armed standoff with federal law enforcement officers who were attempting to move Cliven Bundys cattle off public land near his ranch in Nevada. Cliven Bundy owed more than $1 million in federal grazing fees that he hadnt paid in two decades. Meanwhile, his cows, which were essentially feral, were menacing locals, wandering onto a local driving range, and munching through the Mesquite community garden. Militia members and other anti-government activists came from all over the country to defend Bundy, and some took up sniper positions on highways and aimed assault weapons at federal officers around the ranch. The Bureau of Land Management eventually backed off before causing any bloodshed. The cows remain a nuisance.

Two years later, Ammon Bundy also led the 2016 armed takeover of the Malheur Wildlife Refuge in Oregon to protest the prosecution of a pair of Oregon ranchers accused of arson on public land. He was charged with a variety of federal crimes for both episodes but was acquitted in Oregon. His Nevada case ended in a mistrial because of prosecutorial misconduct. Ammon has since moved to Idaho with his wife and six children.

The Bundy family seemed at one point to have fallen in with the pro-Trump crowd, as Trump embraced some of their issues, like returning control of federal land to the states and protecting Second Amendment rights. Trump also pardoned the ranchers whose case had set off the wildlife refuge takeover. But in 2018, Ammon Bundy announced that he was breaking with Trump over his anti-immigrant rhetoric aimed at migrant caravans coming to the southern border. Bundy criticized Trump for stereotyping migrants as criminals and gang members.

But what about those who have come here for reasons of need? he said in a video he posted online. What about the fathers, the mothers, the children, who have come here and are willing to go through the process to apply for asylum so they can come into this country and benefit from not having to be oppressed continually by criminals?

Ammon Bundys break with Trump and his defense of immigrants caused a major backlash from his followers in the patriot movement. At the end of 2018, he announced that he was leaving the movement, and he shut down his social media accounts. But Ammon has returned to the fray, and over the past two years, he has been involved in various land fights in the west. Hes also gone on the lecture circuit, giving talks about federal overreach. Over the last month, hes posted numerousFacebook warnings about the evils of government-imposed quarantinesand now he is turning those warnings into a potential confrontation. The meeting he is calling for likely violates the governors ban on public gatherings, which Bundy well knows. But,as he says in the video, Were not in any way trying to be rebellious or even civilly disobedient. We need to discuss these matters, and to decide how and what we should accept as a people.

See the article here:

Self-Quarantine Orders Meet the Right-Wing Militia Movement - Mother Jones

Capitol Perspectives: Issues in covering the COVID-19 pandemic – The Daily Star-Journal

The novel coronavirus (COVID-19) pandemic has raised some difficult journalistic questions for which there are not easy answers.

Journalists are facing conflicts between stressing good health practices while, at the same time, holding public officials accountable for their actions and, sometimes, inaction.

Another conflict involves protecting one's own health by staying home which can restrict accessing news sources.

The personal health concerns were amplified when we learned a state representative tested positive for the virus just a few days after they had been in the House chamber.

Ironically, the House had been acting on a hefty appropriation to deal with coronavirus in the final three months of the budget year.

An infected person in the building is a serious cause for concern because of how crowded the hallways and the chambers become when the legislature is in session.

The positive test caused the Capitol to be closed for several days to disinfect the place.

Ten days earlier, legislative leaders had asked schools to not bring groups of students to visit the seat of Missouri state government.

I understood their request. I had begun feeling uneasy entering the building when it was packed with legislators, lobbyists and school groups.

Like some other reporters, I've been covering state government from my home by listening to live streams of legislative sessions and the governor's daily briefings.

But not being in the building has restricted coverage.

I have not been there to ask follow-up questions of the governor or to easily query legislators and lobbyists about issues like the potential loss of state revenues from the economic impact of the virus that likely will severely cripple state services.

So, I have a nagging sense of guilt that I am not fulfilling my journalistic responsibilities.

Like many reporters, I occasionally have risked my own safety in pursuit of a story or to assist journalism in emerging democracies.

Why not this time?

To be honest, I am unsure how much of my decision to stay at home and limit my coverage has been motivated by personal health concerns versus a sense of responsibility to comply with the advice from health officials on how to slow the spread of this disease so as not to overwhelm health facilities and medical staff.

Has maturity made me more cautious, maybe less reckless, than I had been in my younger years? Or has it made me more responsible?

Another question I'm facing involves how to balance coverage between politics and policy disagreements with public safety.

That conflict was demonstrated when Gov. Mike Parson announced he was instructing the Health Department director to issue an order prohibiting groups larger than 10, with exceptions.

Violation of that order is a misdemeanor crime.

Over the decades, I've covered the debates as the legislature extensively expanded the emergency powers of state agencies and the governor including even the power to seize private property.

So, I fully understand the public-policy disagreements about those powers.

Balancing public safety and health with constitutional freedoms has been a continuing issue for as long as our country has existed.

The U.S. Constitution's First Amendment provision establishes "the right of the people peaceably to assemble."

Yet, health experts across the world tell us that avoiding large crowds is a key step to avoid spreading coronavirus.

So, what aspect do I emphasize in my stories? Do I focus on explaining the public-health benefits for people to comply with the Health Department's order?

Or, do I focus on the public-policy questions, even if such an emphasis could undermine efforts to obtain public compliance with an order critical to managing this disease as best as possible?

That conundrum reminds me of questions about coverage of the Vietnam War debate.

Some attacked extensive coverage of protests opposing the war as undermining the nation's war effort.

There is one huge difference from today.

There was a legitimate dispute about as to whether the Vietnam War even should be pursued.

But in the battle with coronavirus, there's no debate about the objective.

Phill Brooks has been a Missouri statehouse reporter since 1970. He is the statehouse correspondent for KMOX Radio, director of Missouri Digital News and an emeritus faculty member of the Missouri School of Journalism. He has covered every governor since the late Warren Hearnes.


Capitol Perspectives: Issues in covering the COVID-19 pandemic - The Daily Star-Journal

Lobbying frenzy connected to stimulus sparks backlash | TheHill – The Hill

The frenzy on K Street over the coronavirus stimulus bill is sparking a new backlash.

Watchdog groups have seized on the activity as major industries push for financial relief and other assistance from Washington. K Streets critics say the lobbying boom highlights the need for tougher controls on the influence industry and accuse businesses of using the coronavirus crisis to push through long-standing priorities they say go beyond immediate economic relief.

Those frustrations have also found expression in the $2.1 trillion House Democratic stimulus proposal, which includes a lobbying ban for companies that receive government aid until the funds are repaid. It would also ban corporations that receive a loan for coronavirus relief from giving bonuses to executives, buying back their own stock, and paying out dividends to shareholders.

The stimulus deal being worked out in the Senate is likely to include restrictions on corporate compensation and stock buybacks but not a lobbying ban. But lobbying watchdogs say the House language highlights their growing concerns with K Street, which is one of the few industries enjoying a boom amid the crisis.

The COVID crisis is shaking up Washington, and since more stimulus packages are likely to be on the table, we expect K Street to continue to ratchet up their attention and spending, Lisa Gilbert, vice president of legislative affairs at Public Citizen, told The Hill. With that backdrop, putting limits on the corporations that receive taxpayer dollars in bailouts is just common sense.

Public Citizen, a nonprofit consumer advocacy organization, supports language that would require companies that receive government help to forego lobbying.

Corporations that receive our taxpayer dollars to stay afloat need clear checks on their ability to engage in influence peddling, Gilbert said.

The coronavirus outbreak has sparked a scramble in Washington as major industries and companies are pressing for aid to weather the economic downturn.

The airline industry last week initially requested $50 billion in aid, while Boeing requested $60 billion for itself and aerospace suppliers. The aggressive lobbying has included a wide range of groups: Child care companies, the candy industry, alcohol beverage producers, tourism and travel companies, and manufacturers are just some of the businesses that have sought relief from Washington.

Thats alarmed progressive and consumer groups who worry the stimulus package will be a boon to big business.

We cannot allow corruption at the highest levels of our government to infect our response to this virus, said Kyle Herrig, president of Accountable.US, a nonpartisan watchdog. Washington has a choice stand with Americans who are already sick and those living in fear, or stand with the powerful special interests that have filled their campaign coffers and are now looking to cash in.

The House language on a lobbying ban is only the latest effort from Democratic lawmakers to rein in K Street.

Democrats have ramped up calls for lobbying bans, and presidential candidate Sen. Bernie SandersBernie SandersThe Hill's Morning Report - Presented by Airbnb - House to pass relief bill; Trump moves to get US back to work Oil price drop threatens US fracking boom Democratic fears rise again as coronavirus pushes Biden to sidelines MORE (I-Vt.) has included similar provisions in his platform, calling for a ban on corporate funding for conventions as well as a lobbying ban on former members of Congress and senior staffers.

But those efforts and the latest Democratic proposal to ban lobbying by businesses that receive federal help has rankled K Street lobbyists and those from business groups.

This proposal smacks of a lack of seriousness. The lobbying thats going on right now are folks helping lawmakers understand whats actually happening out beyond the beltway, in the real world, with thousands of employers and small businesses, Neil Bradley, Chamber executive vice president and chief policy officer, told The Hill. Blocking that information from lawmakers, all thats going to do is make this crisis even worse.

The Chamber has been one of the most active groups pushing for protections for businesses and calling on President TrumpDonald John TrumpDefense industrial base workers belong at home during this public health crisis Maduro pushes back on DOJ charges, calls Trump 'racist cowboy' House leaders hope to vote Friday on coronavirus stimulus MORE to designate essential businesses and services during the crisis.

The scrutiny on K Street during a crisis is also not new. Similar proposals on lobbying were floated during the 2008 financial crisis: Sen. Dianne FeinsteinDianne Emiel FeinsteinLobbying frenzy connected to stimulus sparks backlash House bill would ban stock trading by members of Congress Loeffler under fire for stock trades amid coronavirus outbreak MORE (D-Calif.) proposed that any financial institution that receives help from the Treasury Department be banned from lobbying with that money, The Wall Street Journal reported at the time.

But K Street groups are pushing back hard.

It seems both unconstitutional and shortsighted to remove the First Amendment right to petition the government from the very companies who need to be working with the government right now. Its unclear how this idea helps workers, their families, the economy, or anyone, really, said Stephen Worley, the International Franchise Association (IFA) senior director of communications. The IFA is asking Washington for a $300 billion fund to provide liquidity to business owners.

I think a lobbying ban is a bad idea. The First Amendment is the first amendment for a reason and limiting the ability to petition the government is a slippery slope that needs to be avoided, lobbyist headhunter Ivan Adler told The Hill.

Public Affairs Council, a nonpartisan association for public affairs professionals, also said such a ban would violate the constitution.

The courts would likely throw out this proposal because it would clearly violate the First Amendment right to petition the government, Doug Pinkham, the associations president, said. Companies lobby for things like protecting domestic jobs, increasing critical health care research and many other policies that help our countrys economy move forward.

Corporations often assist our lawmakers in crafting sound public policy, and taking away a companys ability to do so during this complicated time is incredibly shortsighted, he added.

But as the coronavirus outbreak plays out and as the government and businesses look to save the economy, the scrutiny on K Street is unlikely to lift.

Bradley, from the Chamber, called the Democratic response disappointing.

Its disappointing because all across America, small businesses are wondering when Washington will get this phase three bill done because they are literally counting the days until they wont be able to make payroll for their employees, he said.

Watchdog groups hope that the stimulus debate will help move the needle on lobbying reform.

Anything that represents long-term corporate reform, not just short-term conditions, is great, said Adam Green, co-founder of the Progressive Change Campaign Committee.

Go here to see the original:

Lobbying frenzy connected to stimulus sparks backlash | TheHill - The Hill

N.H. Court Rejects Challenge to Ban on Gatherings of 50 or More People – Reason

This came in yesterday's Binford v. Sununu, written by state court Judge John C. Kissinger. First, the court concluded (correctly, I think) that the Governor had the statutory authority to impose the restriction:

Plaintiffs contend that Governor Sununu lacks the [statutory] authority to declare a state of emergency because the circumstances surrounding the COVID-19 outbreak do not amount to an emergency under the definition of emergency in RSA 21-P:35. Plaintiffs argue that "New Hampshire has had just 17 people diagnosed with [COVID-19], and ZERO deaths. In a state of over 1 million people, those numbers alone make it clear this is not an 'emergency."' This argument is without merit.

It would be irrational to find that the governor must wait for the health care system of New Hampshire to be overwhelmed with patients suffering from COVID-19 before he is authorized to declare a state of emergency and take preventative measures to slow the spread of a highly contagious and potentially deadly disease. Indeed, RSA 4:45 contemplates the need to take preemptive action and explicitly authorizes the governor to do so. Specifically, RSA 4:45, I permits the governor to declare a state of emergency where a disaster is "imminent or has occurred within this state." (Emphasis added).

The court also soundly rejected some constitutional arguments that the plaintiffs had made only briefly: "Plaintiffs do not assert any facts that would lead the Court to conclude that Governor Sununu has declared martial law, has taken any property from Plaintiffs without just compensation, or has exercised impermissible control over Plaintiffs' bodies."

It then turned to the freedom of assembly challenge, and again I agree with its analysis here:

Multiple jurisdictions have contemplated the executive's authority to suspend or infringe upon certain civil liberties during states of emergency. See Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996) ("In an emergency situation, fundamental rights such as the right of travel and free speech may be temporarily limited or suspended."); United States v. Chalk, 441 F.2d 1277, 1280 (4th Cir. 1971) ("The invocation of emergency powers necessarily restricts activities that would normally be constitutionally protected."); In re Juan C., 33 Cal. Rptr.2d 919, 922 (Ct. App. 1994) ("An inherent tension exists between the exercise of First Amendment rights and the government's need to maintain order during a period of social strife. The desire for free and unfettered discussion and movement must be balanced against the desire to protect and preserve life and property from destruction."); ACLU of W. Tenn., Inc. v. Chandler, 458 F. Supp 456, 460 (W.D. Tenn. 1978) (explaining that the governor has the authority to impose "limitation on the exercise of [First Amendment rights] only in very unusual circumstances were extreme action is necessary to protect the public from immediate and grave danger").

The 11th Circuit has articulated a two-prong test to determine whether an executive order passes constitutional muster during a state of emergency. In Avino, the Governor of the State of Florida issued an executive order declaring a state of emergency in the wake of Hurricane Andrew. This executive order provided that Miami city and Metropolitan Dade County officials could impose curfews from August 24, 1992 through December 21, 1992. The Miami Dade county manager set the curfew from 7:00 pm to 7:00 am and called in the National Guard and other law enforcement officials to aid local police. By October 2, 1992, the curfew was in effect from 10:00 pm through 5:00 am. County residents were required to stay in their homes during the curfew hours unless otherwise authorized. The curfew was ultimately lifted on November 16, 1992.

The Avino court began its analysis by establishing that the curfew ordinance must be considered "in the circumstances under which the curfew was instituted." The Avino court noted that the State of Florida was devastated by Hurricane Andrew and that all parties agreed that "[p]olice action was clearly required." The court went on to note that "[c]ases have consistently held it is a proper exercise of police power to respond to emergency situations with temporary curfews that might curtail the movement of persons who otherwise would enjoy freedom from restriction." Id. (citing Chalk, 441 F.2d 1277; In re Juan C., 33 Cal. Rptr.2d 919; and Moorhead v. Farrelly, 727 F. Supp. 193 (D.V.I. 1989)).

The Avino court articulated that in a state of emergency, "governing authorities must be granted the proper deference and wide latitude necessary for dealing with the emergency." Accordingly, the court held that "when a curfew is imposed as an emergency measure in response to a natural disaster, the scope of review in cases challenging its constitutionality is limited to a determination whether the executive's actions were taken in good faith and whether there is some factual basis for the decision that the restrictions imposed were necessary to maintain order." The Avino court went on to hold that there was no suggestion that the Dade County officials acted in bad faith. The Avino court further found that a factual emergency existed necessitating emergency intervention. The court ultimately concluded that under extreme emergency circumstances, "fundamental rights such as the right of travel and free speech may be temporarily limited or suspended."

The case currently before the Court concerns a ban on gatherings in excess of 50 people and a ban on dining in at food and beverage service establishments in order to prevent the spread of a highly infectious and deadly disease. The Court finds that this type of ban is sufficiently analogous to a curfew in response to a riot or natural disaster such that the 11th Circuit's two-prong test established in Avino would apply. Here, there is no allegation that Governor Sununu has acted in bad faith. [And] EO 2020-04 set out ample factual bases to conclude that the Governor had the authority to declare a state of emergency concerning the global pandemic caused by COVID-19. Accordingly, the Court finds that there is a sufficient factual basis for the prohibitions contained within Emergency Order #2.

Further buttressing the Court's finding that the Governor's actions are constitutional is the fact that there are multiple checks on Governor Sununu's authority to enforce Emergency Orders pursuant to EO 2020-04. Absent a renewed factual finding by the Governor, EO 2020-04 will be in effect for only 21 days. RSA 4:45, l(d). In addition, the legislature has the authority "by concurrent resolution" to end the state of emergency at any time and can block the governor from renewing the state of emergency at the expiration of 21 days. RSA 4:45, ll(c). Furthermore, Emergency Order #2 is in effect for a limited duration, beginning on March 16, 2020 and ending April 6, 2020. During that time, should the factual bases for enforcing the Emergency Order change, it is subject to review by the Court.

The court then turned to a different argument for why the order is permissible, and here I think it erred to some extent:

Although the Court finds that the Governor may suspend or limit constitutional rights during a state of emergency, for the purpose of establishing a complete record, the Court will also analyze the facial constitutionality of Emergency Order #2.

"Where a law regulates speech only incidentally, as a consequences of expressly regulating conduct, it will withstand first amendment scrutiny if, in its application to incidental speech, it is no more restrictive than a time, place, and manner regulation." Comely, 130 N.H. at 691 (citing United States v. O'Brien, 391 U.S. 367, 376-77 (1968)). Determining whether a time, place, and manner regulation comports with the Constitution, requires the Court to employ a three-prong test. Comely, 130 N.H. at 691. The Court must determine whether the regulation: (1) is content-neutral; (2) narrowly serves a significant governmental interest; and (3) allows for other opportunities for expression. Although these cases consider laws rather than emergency orders, the effect of the emergency order is functionally the same. As a result, the Court concludes that the same standard is generally applicable to emergency orders enacted pursuant to RSA 4:45.

The first step of the analysis is to determine whether the restrictions contained within Emergency Order #2 are content neutral. Plaintiffs contend that Emergency Order #2 is expressly content based because of the language in paragraph 1 banning "[s]cheduled gatherings of 50 people or more for social, spiritual and recreational activities." Plaintiffs argue that inclusion of the word "spiritual" expressly targets religious activities and is therefore not content neutral. This argument ignores the remainder of paragraph one which includes an illustrative list detailing the types of events to which Emergency Order #2 applies. Id. (banning gatherings in excess of 50 people for events "including but not limited to, community, civic, public, leisure, faith based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities"). Based on the inclusion of this illustrative list, Emergency Order #2 is clearly content neutral in that it prohibits any gathering in excess of 50 people, regardless of the content of the event. Accordingly, the Court finds that Emergency Order #2 is content neutral and thereby satisfies the first prong of the time, place, and manner test.

The second step of the analysis is to determine whether the restriction is narrowly tailored to serve a significant government interest. [B]ecause Emergency Order #2 limits its restrictions to those suggested by the CDC to slow the spread of COVID-19, and because the effects of Emergency Order #2 have a limited duration, the Court finds that Emergency Order #2 is narrowly tailored to serve the government's significant interest.

The final step of the analysis is to determine whether Emergency Order #2 allows for alternative opportunities for expression. Comely, 130 N.H. at 691. This prong of the test is clearly satisfied. As stated above, Emergency Order #2 only bans scheduled gatherings of 50 or more people and dine-in restaurant services. People are free to attend scheduled gatherings with fewer people. They can attend impromptu gatherings of any kind. They are free to communicate via the internet or telephone. They may tune into televised events. They can continue to dine together in their homes or outdoors. There are a wealth of opportunities for individuals to exercise their right to freely assemble and associate that do not require them to gather in large groups or eat at a restaurant during a public health emergency. Accordingly, the Court finds that Emergency Order #2 allows for alternative opportunities of expression.

I think the order is indeed content-neutral, but I think it doesn't leaves open "ample alternative channels" for expression (the general First Amendment requirement for upholding something as a time, place, and manner restriction). If, for instance, a total ban on large gatherings were enacted during normal timesfor instance, a total ban on gatherings of more than 50 people in any park, to prevent wear and tear on parks, litter, and the likeit would be seen asnotleaving open ample alternative channels: other channels would be more expensive, or wouldn't reach the same audience, or wouldn't convey the same message. (SeeCity of Ladue v. Gilleo (1994).)

Rather, because the order doesn't leave open ample alternative channels, it greatly burdens assembly and speech, and thus can't be defended as a mere time, place, and manner restriction, even though it's content-neutral. Rather, it must be judged under strict scrutinynot because it's content-based, but because it's so broad and burdensome. Yet it would pass strict scrutiny: For the reasons given above, it is narrowly tailored to a compelling government interest in preventing many deaths from communicable disease (and the availability of alternative means to speak, however imperfect they may be as substitutes for assembly, is one element that makes it narrowly tailored).

The court then rejected the religious freedom challenge:

Nothing in Emergency Order #2 suggests that it is intended to target any religion or specific religious practice. While a ban on scheduled gatherings of 50 or more people may have an impact on the ability for a congregation to assemble at church, the Court concludes that such an impact is merely incidental to the neutral regulation and is otherwise reasonable given the limited duration of the order and public health threat facing the citizens of this State. Accordingly, for all the reasons set forth in the section above, the Court finds that Emergency Order #2 does not unconstitutionally infringe upon Plaintiffs' freedom of religion.

This is correct, I think, under the federal Free Exercise Clause and theEmployment Division v. Smithdecision. (The New Hampshire Supreme Court has interpreted the New Hampshire Constitution the same way thatSmithinterpreted the First Amendment, and New Hampshire doesn't have a RFRA statute.) And even if one concludes that, underSmith, strict scrutiny is required because this is a "hybrid situation" where "the Free Exercise Clause [is raised] in conjunction with other constitutional protections, such as freedom of speech and of the press," strict scrutiny would still be satisfied, for the reasons given above.

Thanks to Prof. Lindsay Wiley (American) for the pointer.

Originally posted here:

N.H. Court Rejects Challenge to Ban on Gatherings of 50 or More People - Reason

Trump Can’t Reopen the Country Over State Objections – Lawfare

In 2007, researchers published findings in the scientific journal PNAS showing how local governments mitigated outbreaks of the 1918 flu pandemic by aggressively limiting public gatherings. Cities such as San Francisco and St. Louis, which introduced restrictions early in one of the waves of the disease, fared much better than Philadelphia, which held a World War I victory parade that attracted tens of thousands of people to its famous Broad Street. Philadelphia was soon hit hard by the flu, while San Francisco and St. Louis were relatively spared.

When multiple interventions were introduced early, they were very effective in 1918, one of the researchers, Richard Hatchett, told the New York Times. And that certainly offers hope that they would be similarly useful in an epidemic today if we didnt have an effective vaccine.

Thirteen years after Hatchett and his colleagues released their work, many of Americas governors are counting on findings like these. The likes of Mike DeWine of Ohio, Andy Beshear of Kentucky, Larry Hogan of Maryland and J.B. Pritzker of IllinoisRepublicans and Democrats alikehave mandated strict social distancing measures in an attempt to curb the spread of COVID-19, the disease caused by the novel coronavirus, before it overruns their states health systems. Other governors, such as Andrew Cuomo of New York and Jay Inslee of Washington, have ordered particularly far-reaching limits on congregating in response to the advanced threat confronting their constituents.

But President Trump is threatening to undermine the state responses to this unfolding crisis. Although the White House rolled out its 15 Days to Slow the Spread guidelines on March 16, Trump has since reversed course and proposed, for example, curtailing those guidelines in order to jump-start the economycontrary to the near unanimous consensus of public health experts that the restrictions are necessary to save a million or more lives, and save the economy by doing so.

What happens if Trump tries to order or coerce states to relax their restrictions and put their residents at risk? Earlier this week in Lawfare, Robert Chesney described some limitations on the presidents power to force changes if state and local officials wont follow his lead. Hes right. And if the president tries to force states to ease restrictions, they should resist. They have the Constitution on their side, and they will almost certainly win in court.

A triad of bedrock constitutional principles gives the states the upper hand. First, the Constitution and cases dating back to the founding era make clear that the power to make decisions about public health and welfarefor example, whether to close businesses and schoolslies primarily with the states, not the federal government. Second, to the extent that the federal government does have power in these areas, that power lies with Congress, not the president. Third, federal powers, even when wielded by Congress, are limited. And, as a practical matter, Congress is extremely unlikely to use its power to force states to roll back public health measures, even if it could do so as a formal legal matter. Under these principles, Trump lacks the legal authority to override orders from governors and other state and local officials that are designed to protect the public health and welfare of their citizens.

State Power

First and foremost, states currently retain power to decide who stays home and for how long. The 10th Amendment expressly reserves to the states those powers not delegated to the federal government. As the Supreme Court has explained, the Framers rejected the concept of a central government that would act ... through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people. The 10th Amendment codifies the U.S. system of dual sovereignty and makes clear that, although the states surrendered many of their powers to the federal government, they retain a residuary and inviolable sovereignty over those powers not assigned to the federal government.

Among the powers generally reserved to the states is the authority to quarantine individuals and otherwise protect public health. The regulation of the health and safety of individuals is primarily, and historically, a matter of local concern, the Supreme Court has held. Accordingly, [s]tates traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.

States and localities have exercised their power to impose quarantines throughout U.S. history. At the turn of the 19th century, the Boston Board of Health quarantined ships arriving from the West Indies, the Mediterranean and other tropical ports to limit the influx of smallpox and other diseases. In 1866, New York City issued a quarantine to prevent a cholera outbreak after health officers discovered that 37 passengers on a ship from Liverpool had died of the disease. More recently, in 2014, many statesincluding Connecticut, Illinois, New Jersey, New York and Texasinstituted quarantines aimed at curbing the spread of the Ebola virus. And over time, a number of states and cities have enacted statutes and promulgated regulations codifying and explicating their quarantine powers. So it should not have come as a surprise in March 2020 when Virginias governor reminded Liberty University thatnotwithstanding the schools decision to require faculty and staff to come back to campus and to encourage thousands of students to do sothe university was still obligated to comply with state public health directives, including Virginias new ban on gatherings of more than 10 people.

The federal government cannot directly hijack states historic quarantine powers for its own ends. In a line of 10th Amendment cases establishing the anti-commandeering doctrine, the Supreme Court has repeatedly made clear that the federal government cannot issue orders directly to the States, forcing their governments to enact laws or act as appendages of the federal government, carrying out federal programs.

This means that neither the president nor Congress can directly require states and cities to call off their shelter-in-place orders, or to reopen schools and businesses. If states wish to keep those restrictions in place beyond Trumps 15 days, they may.

Congress, however, could choose to effectively displace states quarantine power. As a general rule, Congress can displace states traditional police powers when it acts pursuant to one of its enumerated powers, even when its exercise may preempt express state law determinations contrary to the result that has commended itself to the collective wisdom of Congress. As long as any statute is directed at private citizens and interstate commerce directlyand not to the states as statesit likely does not run afoul of the anti-commandeering doctrine. So here, Congress could conceivably invoke its Commerce Clause power and enact a statute specifying that state orders, laws, and regulations closing businesses that substantially affect interstate commerce or prohibiting individuals from going to work are preempted as an undue burden on interstate commerce.

But Congress has not displaced states quarantine powers. Instead, in 1978, Congress invoked the Commerce Clause to complement those powers by amending the Public Health Service Act to provide the federal government with its own limited quarantine authority. The act today grants the secretary of health and human services power to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. But Congress was careful to make clear that nothing in the act was intended to supersede state and local quarantine authorities.

There are, of course, other limits on states health and wellness powers. States must exercise these powers consistent with the rights protected by the federal Constitution. And these powers must be used consistent with the dormant Commerce Clause, a doctrine that restricts state actions that impose too heavy a burden on interstate commerce. As Robert Chesney explains, courts are unlikely to conclude that shelter-in-place orders of the types now in force fall on the wrong side of that balancing test.

Congressional Power

Second, the power that the federal government does have in these areas lies with Congress and not the president. The post-9/11 era may have conditioned Americans to think that in times of national crisis, power devolves to the president as commander-in-chief. But while theres some truth to that when it comes to matters of war and peace, thats simply not the case for public health crises. It is Congress, not the president, that has the power to provide for the ... general welfare, to regulate commerce with foreign nations, and among the several states, to appropriate money, and to make all laws which shall be necessary and proper for carrying into execution all powers vested by this Constitution in the government of the United States.

To be sure, Congress has, in many instances, delegated this authority to executive branch agencies and the presidentas it did with the Public Health Service Act. But that which Congress grants, Congress can take away.

In other instances, Congresss reliance on the executive branch to dole out the money appropriated by the legislature has left de facto discretion to the executive as to when and how that money is spent. But this discretion is limited. For example, any conditions on federal aid must be imposed by Congress, rather than the president, and must be unambiguously stated by Congress at that.

This creates limitations on how Trump can respond to the current situation. He has threatened that federal funds may only go to states whose governors have treat[ed] him well. But, of course, Congress has never unambiguously stated this. Withholding funding, or threatening to withhold funding, on this basis would contravene the law, including Trumps constitutional duty to take care that the laws are faithfully executedand possibly even the First Amendment, if the president were to dole out or withhold resources on the basis of political allegiance.

Could Congress Force States to Reopen?

President Trump generally cannot coerce states to relax restrictions designed to mitigate the spread of COVID-19. But it is worth considering whether Congress could enact legislation that requires states to move back toward business as usual.

As discussed above, Congress could invoke its power under the Commerce Clause, on the theory that state restrictions such as stay-at-home orders have a substantial effect on interstate commerce. But we are unaware of any preexisting statutes that even arguably grant this kind of authority to the presidentand as Chesney points out, it is exceedingly unlikely that the current Congress, particularly the Democratic-controlled House, would take this step.

Second, it is well established that Congress has the powerthrough the Spending Clauseto condition the receipt of federal funds on state compliance with certain federal requirements. So, in theory, Congress could tell states that they are eligible to receive certain federal funds only if they agree to lift stay-at-home orders.

In addition to the same practical limitations described above, this power is subject to several limitations that would make it difficult for Congress to leverage its spending power in the current situation (or, as discussed above, for the executive branch to try to use existing statutes to create this leverage). Any condition on the grant of federal funds must be unambiguous. As the Supreme Court explained in National Federation of Independent Business v. Sebelius (NFIB)which struck down the Medicaid expansion provision of the Affordable Care Act as violative of the Spending ClauseSpending Clause legislation is like a contract between the federal government and the states. As such, the states must know what theyre signing up for. This means that Congress cannot change the terms of the deal down the road by adding conditions to existing programs or sources of funding. So, with respect to the current situation, Congress would need to create new funding streams or find existing funding streams that are at least arguably already conditioned on compliance with federal public health guidelines.

Conditions on federal funding must also be related to the interest that the funding seeks to advance. So, to use the example that the Supreme Court considered in South Dakota v. Dole, Congress can condition the receipt of federal highway funding on states setting a minimum drinking age of 21, because that condition is closely related to one of the main purposes of the federal highway funds, that is, safe interstate travel. While relatedness is not an exacting standard, it might be difficult for Congress to identify funding streams that are sufficiently related to a requirement to ease social distancing restrictions.

On top of this, in the words of Chief Justice John Roberts in NFIB, a Spending Clause condition must not be so coercive that it amounts to a gun to the head of the states. States must be left with a legitimate option to refuse to comply with the condition and thus reject the federal funds. In NFIB, this meant that Congress could not condition all Medicaid fundinga substantial portion of state budgetson the requirement that states expand Medicaid in the manner dictated by the federal government, because this supposed choice really left states with only one option. To renounce the federal funds would be catastrophic.

* * *

There is a legitimate discussion to be had about the social and economic consequences of social distancing, and when those costs might come to outweigh the costs of the spread of the virus. But experts agree that the United States is months away from that point. For now, the scientific consensus is that the U.S. must continue social distancing in order to avoid overwhelming the medical system and endangering millions of lives.

Despite this, the president has pushed to ease restrictions put in place to mitigate the pandemic. Congress is very limited in its ability to enact Trumps unwise suggestion. But even if the president cannot force the states to stop pursuing sound public health policy and protecting their citizens, he can still do profound damage and cost lives by modifying the social distancing guidelines provided by the Centers for Disease Control and Prevention or otherwise pressuring states to lift their public health measures.

Some states reluctant to act on their own, such as Texas, initially followed the CDCs lead in making their decisions to close schools and enact social distancing measures. But now that the president is wavering on keeping the guidelines in place, those same states are showing signs that they will do the same. Texas Lt. Governor Dan Patrick, for example, echoed Trumps recent comments by telling Fox Newss Tucker Carlson that Texans should get back to work. (Fortunately, Texass governor does not seem to share those views.) Meanwhile, shortly after the president started talking about putting an end to social distancing, Mississippis governor, Tate Reeves, issued an executive order that effectively overrode local social distancing orders.In those states that continue their restrictions in spite of federal guidance, individuals may nonetheless look to the president in deciding whether to follow the states rules, or even in deciding to self-medicate for the infection rather than seeking professional advice. This can have deadly consequences; indeed, it already has. But the states have the legal power to blunt the presidents dangerous influence, and they should not hesitate to use it.

While the federal government traditionally plays the central role in mobilizing a response to national crises, there are occasions in which states can be best positioned to play the primary role in protecting the health and welfare of their constituents. The COVID-19 pandemicwhich necessitates agile and proactive government interventions, based on fast-developing circumstances in specific localesis one such occasion. Governors must be in a position to act swiftly if they deem it prudent. The federalist system allows them that flexibility.

Disclosure: The authors work for Protect Democracy, which has represented Lawfare editors Benjamin Wittes, Jack Goldsmith, Scott Anderson and Susan Hennessey on a number of separate matters.

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Trump Can't Reopen the Country Over State Objections - Lawfare

Amid stay-home order, Ammon Bundy hosts meeting; calls on Idahoans to defend rights – Idaho Press-Tribune

EMMETT Ammon Bundy hosted on Thursday a meeting in Emmett, where he called on attendees to pledge to defend Idahoans who are pressured to comply with a stay-home order enacted this week by Gov. Brad Little.

Reached by phone Friday, Bundy said the gathering was about discussing the states self-isolation order.

We discussed with each other whether our rights can be taken by an order from a governor or an agency, and if they can be, what good are our rights? Bundy said.

Little on Wednesday issued a statewide stay-home order for all Idahoans for 21 days. The order requires all residents to self-isolate at home if you can, not just if you are sick, according to the governors office.

Bundy said self-isolation during the spread of the new coronavirus is not a bad thing.

Im not sure its warranted completely to even ask that, but thats not the argument here, he said. If it was a guideline, I would applaud it. Its not, its an order.

A 19-minute video of Thursdays two-hour meeting, recorded live and posted on a public Facebook account, shows Bundy pledging to help provide legal, political and physical defense to people who are pressured by the authorities or anybody else to comply with the order.

I will be there, Bundy said. I will bring as many people as we can. We will form a legal defense for you, a political defense for you, and we will also, if necessary, provide a physical defense for you, so that you can continue in your rights.

Bundy asked meeting attendees to sign a piece of paper, provide their contact information and agree that, as someone decides to stand, we form a legal and political and physical defense. Bundy said he knows a lot of good people that have a tremendous amount of legal capabilities, and there are people who are very effective at political defense.

If you are within your rights, acting, and you are receiving pressure or force from anybody that this is the people that you contact, he said, referring to the pledge paper. What their job is, is to activate everybody in the situation.

Bundy said the situation could be so and so needs (us) to go down to his business, or so and so (needs us) to file suit, grievance. Bundy also said that a bad actor, or someone who infringes on peoples rights, could be targeted for protests at their homes.

We need to find out whos the bad actor here, he said. We need to go to his house and act in that way.

Bundy told the Idaho Press hes not opposed to weapons being used in a situation where physical defense is required.

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When someones rights are being violated for whatever reason then thousands of people come and surround that person and bring a tremendous, a lot of attention and bring accountability to the bad actors, he said. The First Amendment is secured by the Second Amendment.

Earlier on Thursday, Bundy, who lives near Emmett, posted a Facebook video inviting all the people of Idaho to come to a peoples meeting.

The last time it was illegal to meet together as a people on this land was before the Revolutionary War, said Bundy, wearing a cowboy hat and filming himself. Since we won our independence, it has never been illegal to assemble as a people.

In 2016, Bundy helped lead the armed occupation of the Malheur National Wildlife Refuge. He also participated in an armed standoff with federal law enforcement at his fathers Nevada ranch in 2014.

The Thursday meeting was held in an industrial building in Emmett, which Bundy owns and leases. The video shows more than a dozen people in attendance, both sitting and standing, and they mostly appeared to be keeping some distance from one another. Bundy said he plans to host another meeting next week at the same location.

The meeting likely violates the states stay-home order. At a Friday press conference, Little said he has the authority to outlaw public gatherings, even political gatherings. He said gatherings are discouraged and are frankly in violation of this stay-home order.

Theres no difference between a political gathering and any other gathering, Little said.

The Idaho Press is offering free online access to all of our local coronavirus stories. Our ongoing coverage of the Treasure Valley relies on the generous support from our readers. To strengthen local journalism, please consider subscribing at iptoffers.com. For daily updates in your inbox, sign up for our COVID-19 newsletter.

Ryan Suppe is the Meridian reporter for the Idaho Press. Contact him at 208-465-8119. Follow him on Twitter @salsuppe.

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Amid stay-home order, Ammon Bundy hosts meeting; calls on Idahoans to defend rights - Idaho Press-Tribune

Sixteen Stormy Days: Tripurdaman Singh’s account of the First Amendment to Indian Constitution makes for… – Firstpost

Its fair to say that the average Indians faith in the judiciary and the Constitution in general is at an all-time low. A few days ago, we learned that former Chief Justice of India, Ranjan Gogoi, will be a Rajya Sabha MP soon. This is less than a year after he presided over his own sexual harassment allegation hearing just one of the many unpopular decisions he took in the last year of his career, all of which favoured the Narendra Modi government (Ayodhya, the Rafale deal and so on). The most contentious issue in India (other than the governments handling of COVID-19, of course) today, after all, is an act that many of us feel is unconstitutional (violates Article 14, for starters) and yet, the fight against the CAA is led by street protests, not legal challenges.

When did the executive branch begin to bend the judiciary to their (political) will in India and how? Sixteen Stormy Days (Penguin Random House India), a new non-fiction book by Tripurdaman Singh, tries to answer this question and address the long-term effects of the First Amendment to the Indian constitution.

Sixteen Stormy Days, by Tripurdaman Singh

As the author says, How did this magnificent Constitution, the most elaborate declaration of human rights yet framed go from being a charter of freedom & fulfillment of the dreams of Indias people in 1950 to being an impediment in the will of the same people by 1951?

Why did Jawaharlal Nehru push so hard for the First Amendment in 1951, especially in the face of challenges both within the provisional parliament (general elections were still a few months away) and from various High Courts? The answer is both simple and not. The objective was three-fold: the abolition of the zamindari system (the impediment being the right to property), the application of caste-based reservations (the impediment being the right to equality) and the censoring of publications deemed as national security threats (the impediment being freedom of speech).

Each of the three objectives, therefore, involved a clash between political objectives and fundamental rights. This brought Nehru back to the original question: why do we have fundamental rights in the first place? Is it not to protect the most vulnerable among us? Nehru was certainly correct in his over-arching view of things that as long as structural inequities existed in the Indian state (the caste system, for instance, something that persists to this day and is easily Indias biggest social justice issue), fundamental rights could be misused to privilege the powerful over the weak. Zamindari did need to go, caste-based reservations were needed in India (still are).

As part of its agenda, the Congress wanted to abolish the zamindari system as soon as possible. Obviously, faced with the overnight evaporation of their power, the zamindars of Bihar in particular fought back hard, helped by allies like Rajendra Prasad, Indias first President. On 12 March 1951, the Patna High Court struck down the Bihar Land Reforms Act, saying that it violated Article 14 of the Constitution (which pertains to the equality of all citizens in the eyes of the law).

In a searing indictment of the Congress party and the Bihar governments manifest authoritarianism, the judges denounced the Act as an unconstitutional law enacted in the belief that the right of the plaintiffs to challenge it and ask for relief from its operation has been taken away. The courts decision shook the government and the Congress party to its core. It shattered the illusion of the current regime having inherited the absolute power of the Raj. The Bihar Land Reforms Act bit the dust. An entire pillar of the Congress partys social agenda stood virtually crippled.Singhs research is thorough. He excels in the blow-by-blow accounts of those crucial weeks when Nehru tried to bring his allies and his opponents around to his point of view. (Realpolitik is a thorny affair at the best of times, one that Singh is clearly familiar with). Immediately after the Patna High Court ruling, Nehru had a fairly strong-worded statement for the press:

If the Constitution is interpreted by the Courts in a way which comes in the way of the wishes of the legislature in regard to basic social matters, then it is for the legislatures to consider how to amend the Constitution so that the will of the people as represented in the legislature should prevail.

Most students of history and/or political science will, I am sure, find the back-and-forth between Nehru and BR Ambedkar, or between Prasad and Nehru, compelling reading. This is among the reasons why Singhs work is such a valuable resource. To his credit, the book is also accessibly written, for the most part, only slipping into legalese at a few places every now and then small blemishes in an otherwise thoroughly professional job.

I was also impressed by the fact that Singh, despite his Bharatiya Janata Party affiliations (his father Mahendra Aridaman Singh re-joined the BJP in 2017; at various points through the 90s and 2000s, he had been a part of the Samajwadi Party and Janta Dal as well), isnt interested in painting Nehru as an outright villain (although predictably, his book has been gleefully reported on by right-wing publications with a history of Islamophobia and publishing falsehoods like Swarajya magazine, complete with headlines blasting Nehru). As the author himself pointed out in a recent interview, he saw Nehru as a hard-nosed politician (and not as the saboteur of fundamental rights in India, despite his stand here). Hopefully, this sense of nuance also reaches Singhs colleagues in the BJP soon.

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Sixteen Stormy Days: Tripurdaman Singh's account of the First Amendment to Indian Constitution makes for... - Firstpost

The Sobering Realities of the American Dystopia – CounterPunch

I write this update to you against the sobering realities of the coronavirus crisis, a profound U.S. leadership crisis and the reality that 2020 is closing down early across our society.

Turns out I am in a designated risk category by virtue of my 62 years of age, but have direct family members and people in my regular social network who fall into much higher critical risk categories due to pre-existing conditions.

In the face of the coronavirus crisis, we must increasingly look to local and global health leaders for action in the absence of any real leadership from the U.S. government.

The Trump administration order to classify updates on coronavirus developments and testing is frankly a coverup of the U.S. governments abysmal failure to protect the welfare, health and well-being of the people.

Yet key indications and warning from months ago were ignored by Trump and his administration when the coronavirus broke out.

This reminds me of the failures of the U.S. government to provide for the common defense not keeping people out of harms way on 9/11 when almost 3,000 lives perished on that fateful and tragic day, despite many years of ignored indications and warnings (including reports I helped send out in 1993 after terrorists attempted to drop the World Trade Center Towers the first time). Those indications and warnings were then covered up to hide culpability and truth about 9/11 behind a blanket of national security lies and classified secrets.

In addition, the coronavirus crisis is exposing lots of fraud and sand castles. Therefore, despite government lies and denials and too many people in high places sticking their heads in the proverbial sand (while wishing on rainbows and mirages), we must face this global health crisis together as we all live in the same global village on this planet called Earth.

As I write this, just today the Federal Reserve Bank pumped more than atrillion and a half dollarsinto the economy under the guise of market intervention and the stock market still fell some 10 percent on the day in its worst showing since 1987.

Can you imagine how far atrillion and a half dollarswould go to protect the health and well-being of people, let alone promoting the general welfare of the populace? It is one of the two primary responsibilities of government in the Preamble of the Constitution, besides providing for the common defense.

And then we have President Trumps 2020 campaign suing several media outlets for libel over opinion pieces. This is incredibly dangerous, treating the First Amendment and free expression and speech as a direct threat to his ego, personal vanity, autocratic behavior, and megalomania. It sends a most chilling message when daring to write and publish something Dear Leader doesnt like.

Trump is doing this in the form of defamation lawfare suits that abuse the court system and judiciary, while attempting to overturn and set new precedent for prior restraint.

With all these attacks on the First Amendment by the Trump administration, I am experiencing major flashbacks.

That is because the government charged me with espionage; it accused me of stealing and then disclosing government property and secrets that I then gave to the press. Government prosecutors alleged that the reporter was the only eyewitness to my apparent crime committed against the state for speaking truth about the abuse of national security state power and the mass violations of privacy and Fourth Amendment protections of people.

There is also a lot of Newspeak propaganda and disinformation operations using convenient foils and overstated bogeymen to exploit fear, sow discord and promote division while hiding the truth behind a veil of secrecy and national security state briefings. This type of executive action makes it all too easy to manipulate for political ends.

Trump continually demonstrates his contempt and hatred for democracy, preferring the rally stage of a performance-driven presidency while spreading the memes and propaganda of his own Trump-branded autocratic authoritarianism.

U.S. democracy is under assault by the Trump syndicate as he issues pardons contributing to the advancement of white-collar crime and enhanced corruption abusing his power to attack and threaten his enemies while persecuting and prosecuting those who dare to expose his massive confraud on America.

Trumps priorities are now vengeance and revenge engaging in a new series of retaliatory acts to preserve his power in violation of his constitutional oath. His vindictive actions and unlawful orders are malicious assaults on democracy as he ramps up his retribution tour against his designated enemies and those he claims betrayed him using the power of his presidency to protect his abuse of power.

And yet democracy dies in the darkness of dystopia, and there are now alarming new developments in the updated U.S. 20-22 counterintelligence strategy report for identifying and targeting hacktivists while calling them out as social media manipulators and also targeting anti-secrecy and public disclosure groups as direct threats to the national security of the United States.

These new and chilling counterintelligence threats to the U.S. also include targeting anyone else who fits an ideologically motivated entities profile as designated espionage threats to the U.S. considered equal and on par with the threats posed by existing and more traditional state and non-state actors.

The U.S. is now clearly formalizing threat monitoring of dissent and truth-telling public interest disclosures in the updated executive counterintelligence strategy recently signed by Trump.

It reminds me of when I was declared an Enemy of the State, a secrecy leaker and one who self-radicalized as alleged by the Joint DoJ/DNI National Insider Threat Task Force (NITTF) back in late 2015 in formal threat briefings.

The NITTF also pinned me up alongside Edward Snowden as a National Security State criminal on a rogues gallery of counterintelligence threats from those that have done us harm (equating me with the newly minted moniker of leaktivist in the 20-22 counterintelligence strategy) and other real spies and mass shooters in U.S. history.

What future do we want to keep? It is up to us.

I will keep on keeping on defending life, liberty and our precious freedoms and rights standing tall along that long moral arc of the universe and help bending it toward justice and mercy.

Please take care of yourselves and each other, because it so important to remember that we bring out the best of who we are in each other as human beings.

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The Sobering Realities of the American Dystopia - CounterPunch

The First Amendment, a Philosophy Professor, and Pronouns – Daily Nous

No, professors, the First Amendment does not protect you from receiving a warning from your universityaboutviolating its nondiscrimination policies when you talk to or about your transgender students in discriminatory ways in class.

Nicholas Meriwether, professor of philosophy at Shawnee State University in Ohio,had used sir while responding in his Fall 2018 political philosophy class to a transgender woman student. After class that day, the student asked Dr. Meriwether to refer to her as a woman and use feminine pronouns (she, her) or titles (Miss, Ms.) when addressing or talking about her.He refused. Instead, he resorted to referring tothe student by her last name only, while continuing to address other students in class as Mr. and Ms. followed by their last name.

Nicholas Meriwether

The student filed a complaint with the university, which investigated and presented Dr. Meriwether with a written warning to not violate the schools nondiscrimination policies. (See previous post on this here.)

Dr. Meriwether then sued Shawnee State University, arguing that the warning had violated hisConstitutional rights. From the initial decision:

He is a professing evangelical Christian and member of the Presbyterian Church of America with sincerely-held religious beliefs about gender, and he does not believe that an individuals gender can be changed after the moment of conception He objects to communicating what he believes to be a University mandated ideological message regarding gender identity that he does not believe and which he believes contradicts (and would force him to violate) his sincerely held religious beliefs.

Meriwether sought a judgment that the schools nondiscrimination policies and practices violated his First and Fourteenth Amendment rights. The Shawnee State University officials named in the lawsuit asked the court to dismiss it.

This past September the court did dismiss the case, making use of various precedents, including the judgments that Universities may sanction professors whose pedagogical attitudes and teaching methods do not conform to institutional standards and that although public universities may not force professors to endorse or eschew specific viewpoints, the First Amendment does not bar a public university from requiring that its faculty treat each other and their students with civility.

Meriwether appealed to the district court, which rejected his appeallast month. Meriwether has now filed a further appeal.

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The First Amendment, a Philosophy Professor, and Pronouns - Daily Nous

Distorted view of the First Amendment | News, Sports, Jobs – Williamsport Sun-Gazette

The National Socialist Movement, the American Nazi party, does not have a First Amendment right to rally at Brandon Park (or anywhere else) because their agenda is to encourage violence. A lawsuit is underway by the City of Charlottesville based upon the efforts of the organizers of the National Socialist Movement to both plan and encourage violence at a rally held in that city.

Our mayor and City Council are wrong to believe that there is any First Amendment right. It seems quite clear that the authorities in this city have not looked even casually at the history of the National Socialist Movement or examined their postings in connection with the event to be held in Williamsport.

Williamsport will now become known as the City of Hate. It behooves our newly elected mayor, City Council and the chief of police to do some research on this organization and to deny the permit.

A number of years ago, I received a telephone call from Mayor Campana when the Ku Klux Klan sought a permit in Williamsport. The Mayor said that because of the groups history of violence, he would not permit it. I received a similar phone call from the mayor of Montoursville. The Ku Klux Klan did not hold its rally.

After the permits were denied, the head of the Ku Klux Klan was referred to me by the ACLU in Washington, D.C. I met with the Klan head in my office for over three hours. After the meeting, I told the Klan head that I would not represent him but that there were plenty of other lawyers who had a twisted notion of the First Amendment. I encouraged the Klan leader to work through conventional, non-violent channels.

The citys chief of police later told me that the man I talked to quit leading the Klan and that the organization would not be pursuing any legal action.

Our current administration has to stand tall. Have some backbone on this issue. Hatred and incitement to violence must be opposed regardless of where those extremist views come from. The question is not one of opinion, but rather a history of violence and the promoting of behaviors that are a clear and present danger to others.

One must ask whether the mayor, City Council and chief of police have looked into the organization, its history, its social media prior to rallies around the country, and what has occurred at those other events.

I am and remain a proud civil rights lawyer. As I write this piece, I am preparing a federal complaint against a school district that denied to my client her First Amendment rights and retaliated against her for exercising those rights. The First Amendment is crucial. The document inked by our Founders was meant to be enforced.

Nevertheless, and in spite of the First Amendment, the Congress of the United States, during one of the earliest administrations, passed the Alien and Sedition Act. Under the presidency of John Adams, publicists and journalists were jailed for expressing negative views and opinions about the Federalists who were in power. This was a dark and ugly history for our nation. Other attempts to quash First Amendment rights have occurred throughout our nations history. The First Amendment must be a bulwark that stands between democracy and totalitarianism.

The Supreme Court is often quoted as having stated that no one has a right to yell fire in a crowded movie theatre. The First Amendment does not permit advocating or planning violence. People are criminally punished and go to jail who plan or try to convince others to commit violent acts. Violence is the agenda of the American Nazi Party.

No counter-demonstration or police presence will remove the stain from this citys reputation and history should it permit the Nazi event to go forward in Brandon Park. Our city officials should stand up proudly against granting this permit and should fight in the courts for the principle that violence and advocates of violence have no home in our beautiful city.

We live in an era where it seems that the First Amendment is defined by whether a particular official belongs to the left wing or right wing. Williamsport is taking an anemic stance toward a hate organization such as the Nazi party because of a misplaced and completely inaccurate view of the First Amendment. Such views are not progressive or open-minded, but rather represent the equivalent of unintended cooperation with forces of hate.

History has shown us that the Roosevelt administration not only failed to oppose the Nazi effort to destroy all Jews in Europe, but through its indifference actually encouraged the Holocaust. The Roosevelt administration was filled with anti-Semites who acted as a silent cheering section for the goals of the Third Reich. Our public officials must be cognizant of history. Liberalism and open-mindedness should never be an open highway to permit the promulgation of violence in the name of the glorious First Amendment.

The question as to whether the Nazis will be allowed to rally in Williamsport or whether the permit will be revoked is a defining moment in this citys history.

Cliff Rieders is a board-certified trial advocate in Williamsport.

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Distorted view of the First Amendment | News, Sports, Jobs - Williamsport Sun-Gazette

Virus Concerns Lead to ‘Public’ Meetings Without the Public – The New York Times

JEFFERSON CITY, Mo. First, Oklahoma lawmakers excluded the public from the Capitol because of coronavirus concerns.

Then with the public gone, lawmakers made an emergency change to the state's open-meetings law to let all governmental entities meet via video or teleconference, so long as people can watch or listen remotely.

Across the U.S., numerous governors, lawmakers, mayors and county officials have made similar decisions to keep the public away from public meetings all for the sake of public health. Ironically, the sudden policy shift has played out during the annual observation of Sunshine Week, a seven-day period intended to highlight the importance of open-government policies.

Public participation in our democracy is really fundamental to the health of our democracy," said David Snyder, executive director of the First Amendment Coalition, a California-based nonprofit that promotes government transparency.

"I think government agencies need to be very careful not to unduly restrict the publics ability to see what government is doing and, maybe more importantly, to participate in what the governments doing, he said.

On Friday, 132 state and national groups backing open-government policies released a joint statement urging officials at all levels of government to not retrench from their duties for public involvement because of the coronavirus.

Government bodies should not opportunistically take advantage of the publics inability to attend large gatherings to make critical decisions affecting the publics interest if those decisions can reasonably be postponed, the statement said.

All U.S. states require open government meetings. Some mandate that a majority of government officials be physically present to meet. Others already allow officials to meet by video or phone, with accommodations for the public to watch or listen from a designated room.

Those mandates for in-person access have been suspended or ignored as an increasing number of governments have instructed people to stay home and avoid public gatherings to help prevent the spread of the virus that causes the COVID-19 disease.

The move toward seclusion has posed some practical and technological challenges.

When the Oklahoma Senate passed a bill this week authorizing public bodies to hold teleconference or video meetings through March 1, 2021, open-government advocates couldn't enter the closed Capitol to voice their concerns about the duration of the emergency rules.

Andy Moore, executive director of Freedom of Information Oklahoma, had been watching a live stream of the legislative debate on his computer. He posted his objections on social media. A House member then got in touch with him via text, and the House passed a new version that shortened the remote meeting policy until Nov. 15.

It worked out OK, Moore said, but anything that kind of clamps down on the flow of information makes it more difficult for the public to stay involved.

Legislators in Maine and Tennessee also excluded the public from their buildings. South Carolina lawmakers asked lobbyists and visitors to stay away.

The Pennsylvania House and Senate each voted to change their rules this past week to allow members to participate and vote remotely. And New Jersey Gov. Phil Murphy, a Democrat, signed a bill Thursday letting the Legislature meet remotely using technology.

Some open-government advocates worry that it may become harder for the remote-viewing public to interact with elected officials or fully understand what's going on.

Video conference meetings are great, but theres really no substitute for physical presence," Snyder said.

In Rhode Island, technical glitches frustrated some people trying to watch the first significant state meeting to be live-streamed after Democratic Gov. Gina Raimondo loosened the state's public meetings law. Those following the Board of Elections via the agency's Facebook page complained that the feed froze.

The Rhode Island chapters of Common Cause and the American Civil Liberties Union said Friday that governmental bodies meeting virtually should be required to pause their proceedings if the video or audio stream is interrupted. They also said all documents discussed should be shared online in advance of the meeting.

In Waterville, Maine, the city solicitor warned Thursday that a new panel formed to address the coronavirus had been illegally meeting in secret and making decisions, including to suspend the city's plastic bag ban. Sigmund Schutz, a lawyer for MaineToday Media, told the state attorney generals office that urgent guidance is needed for compliance with the Freedom of Access Act.

Restrictions on public meetings have been implemented without resistance in some states. But Republicans in Michigan objected to actions by Democratic Gov. Gretchen Whitmer. Her order temporarily allows public bodies to conduct their meetings electronically, by phone or video conference, as long as they allow public access and participation.

Older Michiganders are most at risk during these times. They are also the least likely to have the technology necessary to access public meetings electronically, Senate Majority Leader Mike Shirkey said. In a time of crisis, citizens should have more access to their elected officials, not less.

Critics said Shirkey's comments were hypocritical. Michigan is one of two states that wholly exempt both legislators and the governor's office from disclosing communications and other information to the public.

Arizona Attorney General Mark Brnovich, a Republican, published a legal opinion saying public meetings could be conducted remotely as long as there was plenty of notice and a means for the public to observe. He suggested that public bodies provide technical support for people who have difficulty dialing in to a phone conference or watching a video conference.

Transparency is the core of legality, Brnovich wrote. Throughout any circumstance, the government must remain accountable to the people.

Daniel Bevarly, executive director of the National Freedom of Information Coalition, said he understands the need to restrict access to meetings during the coronavirus pandemic. If governmental bodies continue to live-stream their meetings even after re-opening their doors, the current crisis ultimately could lead to long-term benefits, he said.

This is an opportunity for us to re-examine this whole public engagement in a digital world," Bevarly said.


Associated Press writers Mike Catalini in Trenton, New Jersey; Jonathan J. Cooper in Phoenix; David Eggert in Lansing, Michigan; Marc Levy in Harrisburg, Pennsylvania; Philip Marcelo in Boston; and David Sharp in Portland, Maine, contributed to this report.

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Virus Concerns Lead to 'Public' Meetings Without the Public - The New York Times

Assange’s Extradition: An Escalation of the US War on Terror – Common Dreams

Last week the U.S. District Judge Anthony Trenga released Chelsea Manning from detainment after concluding that the grand jury that she had been subpoenaed to testify before no longer needed her, since it was being disbanded. Manning was incarcerated because of her principled stance against the secrecy of the grand jury and her refusal to cooperate in its coercive procedure.

The release of Manning came after the U.S. government tried to break her to the point of suicide. Nils Melzer, the UN Special Rapporteur on Torture, wrote a letter to the U.S. government late last year indicating that Manning's imprisonment amounted to torture. Her resistance is a part of the U.S. government's war on the free press, going after WikiLeaks' publisher Julian Assange.

Assange has been charged under the Espionage Act for publishing classified documents which exposed U.S.war crimes in Iraq and Afghanistan. This indictment is recognized by free speech groups as an unprecedented attack on the First Amendment. In February, the first week of the U.K. hearing of the U.S. request for Assange's extradition revealed a scale of this 'war' that goes well beyond press freedom. What took place inside the Woolwich Crown Court in south-east London was a sign of a dangerous slippery slide towards fascism.

Judge Vanessa Baraitser's deliberations on the U.S.extradition request for Assange was a trial for journalism, where bullying of an innocent man is camouflaged as a judicial process and the prosecution of a publisher that has no legal ground is given legitimacy. As Assange's defense team argued, the proceedings have shown a serious disregard for the rule of law, including abuse of process and ignoring the political nature of this case.

Craig Murray, a U.K. ex-diplomat who attended the hearing everyday, gave a report of his first hand account, pointing out the very oppressive nature of the building and physical arrangement inside the maximum security anti-terrorist court. He made it clear that Assange is a remand prisoner who completed an unprecedentedly long sentence for a minor bail violation and an innocent man facing charges for publishing documents that exposed the U.S.and U.K. government's war crimes.

The former ambassador to Uzbekistan described how Assange is now treated like a violent criminal. On the first day of trial, Assange was subjected to strip searches twice, handcuffed 11 times and his court papers were removed. In the courtroom he was held behind a glass pane in the presence of private security officers, being unable to communicate with his legal team confidentially during proceedings. During the hearing, Assange spoke:

"I cannot communicate with my lawyers or ask them for clarifications without the other side seeing. The other side has about 100 times more contact with their lawyers per day. What is the point of asking if I can concentrate if I cannot participate?"

Clare Daly, member of the European Parliament from Ireland for the Dublin constituency was at the hearing and commented on this draconian measure taken against international standards. She mentioned that she was shocked to see Assange isolated behind the glass window, away from his legal team. Another member of the Parliament, Stelios Kouloglou, who was also at the court observing the hearing noted how what he saw reminded him of the dictatorship in Greece.

What is this prosecution of WikiLeaks founder really about? What has quietly taken place in the U.S. government's war on free press was a shredding of the Magna Carta as the very foundation of democracy. The Magna Carta is one of the most important historical documents, having established the principle of due process. It embodies the idea that everyone is subject to the law, even the king, and that all are entitled to the right to a fair trial, thus guaranteeing the rights of the individual.

The Founding Fathers of the United States considered this protection against unlawful and indefinite imprisonment essential in securing individual liberty. For this, they aimed to guarantee the constitutional due process right of habeas corpus, in Article 1, Section 9 of the Constitution.

By prosecuting Julian Assange, the U.S.government is not only violating the First Amendment, but also engaged in a direct assault on the core of civil liberties. The steps toward destruction of the constitution didn't just begin now. It didn't happen accidentally, nor does this government's obstruction of human rights only concern Assange as an individual. If we look carefully, we can see a series of events that were carefully orchestrated, leading to the extremely disturbing scenario of the detention of a multi-award winning journalist inside a glass box, as seen during the extradition hearing.

Assange through his work with WikiLeaks came to understand the hidden oppressive force that has insidiously stripped him of his own democratic rights. In his 2006 essay Conspiracy as Governance, he wrote:

Authoritarian regimes create forces which oppose them by pushing against a people's will to truth, love and self-realization. Plans which assist authoritarian rule, once discovered, induce further resistance. Hence such schemes are concealed by successful authoritarian powers until resistance is futile or out weighed by the efficiencies of naked power. This collaborative secrecy, working to the detriment of a population, is enough to define their behavior as conspiratorial.

What Assange described as "conspiratorial interactions among the political elite" can be identified in power networks documented by Peter Phillips in his book "Giants: The Global Power Elites." This includes efforts such as the Project for the New American Centuryan enterprise established in 1997 for the purpose of exercising American global leadership. Consisting of top-level personale in the George W. Bush administration, it aims for total military domination of the world.

After the September 11, 2001 attacks on the World Trade Center, networks of "collaborative secrecy" that Assange analyzed, seemed to have gained momentum. Investigative journalist John Pilger revealed the American plan to exploit a catastrophic event and the way the 9/11 disaster provided the "new Pearl Harbor" (discussed in the plan) as the opportunity for the extremists in America to grab the world's resources.

Right after the event the U.S., supported by its close allies, invaded Afghanistan. Then, just weeks later The USA PATRIOT Act, that radically expanded the government's capability of surveillance, was developed as anti-terrorism legislation. The following year, in 2002, the Guantanamo Bay detention camp was set up in Cubain violation of due process clauses of the Constitution. From the Iraq War in 2003 to the passing by Congress of the Military Commissions Act (MCA), that completely dismantled the principle of habeas corpus, the erosion of civil liberties was made under the pretext of "fighting terrorism"America's official mission to wipe out al Qaeda and the terrorist Taliban leaders.

How did this radical transgression against democracy come about? Author Naomi Klein in "Shock Doctrine: The Rise of Disaster Capitalism" investigated how the state exploits crises through taking advantage of the public's psychologically vulnerable state to push through their agendas. She described the lead-up to the invasion of Iraq as a prime example of this shock doctrine.

The terror invoked by the Bush doctrine of "war on terror" in the wake of 9/11 was truly an attack on the heart of democracy. It paralyzed people and decapitated their ability to define reality, uprooting them from their own history. With the mainstream media broadcast of repeated images of the collapse of the Twin Towers, a climate of fear was amplified.

In response to the event portrayed as "terrorist attacks", President Bush in his address to Congress and the American people, expressed his patriotism with the deep emotional tones of vendetta. While the nation was disoriented, and before people had time to process this tragic incident or even really know who perpetrated it, the narrative of victimization was deftly put forth. Many wrapped themselves in the flag and joined the drumbeat of war with a sense of righteous self-defense.

The hearts of people that had frozen became numb. Many of us became unable to feel a sense of wrongness in the face of injustice. A steady advance in the reduction of civil liberties came to be normalized. In the euphemisms of "enhanced interrogation" and "extraordinary rendition" reprehensible human acts such as torture and kidnapping were made more acceptable. The term "bulk collection" was used to disguise "mass surveillance", making unconstitutional NSA spying of an entire world seem less severe or immoral. Cruel killings of civilians became less sensational when they are called "noncombatants" or become "collateral damage" after they were killed.


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Two months after 9/11, in a news conference, President Bush urged the international community to form a coalition for military action. He said, "You're either with us or against us in the fight against terror!"claiming there is no neutrality in this war against terror. With a police crackdown on activists creating a chilling effect, the nation entered a political winter. Consequently, Obama's victory in the 2008 presidential election appeared to have lifted up the dark cloud of the post-9/11 world. Yet by the end of 2009, the American public became disillusioned with Obama's empty promises of "hope and change."

In spring of 2010, as waves of apathy were moving through the country, a shift in the tide emerged. WikiLeaks published classified military footage of the July 2007 attack by a U.S.Army helicopter gunship in the Iraqi suburb of New Baghdad. The video, titled "Collateral Murder", depicted the killing of more than a dozen men, including two Reuters' staffers.

The release of the Collateral Murder video brought a real catalyst for change. In the 17-minute film that portrayed the everyday life of the brutal military occupation in Iraq, we were given an opportunity to see with our own eyes who those labeled as enemies in the "war on terror" really werea group of adults and children trying to defend themselves from being shot and journalists risking their lives to do their job.

The light that unveiled the U.S.military's senseless killing was the conscience of the U.S.Army intelligence analyst Chelsea Manning. It brought an awakening to the heart that remembers our inherent obligation to one another, helping to recover stolen memories of our own history.

The act of conscience of this young American whistleblower was met with cowardliness and indifference of the established media. Manning first reached out to major U.S. news outlets such as the New York Times and the Washington Post with material that exposed U.S. war crimes, but they turned her away.

With a vacuum of moral courage in the media landscape, WikiLeaks became the publisher of Manning's last resort. Nelson Mandela, who led the emancipation of South Africa, once spoke on how courage is "not the absence of fear, but the triumph over it" and that "the brave man is not he who does not feel afraid, but he who conquers that fear."

In the face of the prevailing terror of an authoritarian state, WikiLeaks demonstrated truly fearless journalism, igniting the courage of their sources. A project of Sunshine Press launched in 2006, WikiLeaks began to melt frozen hearts, revealing the reality covered up by the corporate media.

In releasing the Collateral Murder video, Assange indicated that the purpose of this publication was to show the world what modern warfare actually looks like and that "his mission is to expose injustice, not to provide an even-handed record of events." An Australian journalist, Assange explained how WikiLeaks gave a political slant to their naming of the video as a way to give it maximum political impact, because the organization wanted to "knock out the euphemism of 'collateral damage', so when anyone watches it they will think 'collateral murder'."

In the summer of 2010, the light of transparency grew stronger. WikiLeaks published the Afghan War Diary, the trove of U.S.classified military records concerning the war in Afghanistan, revealing around 20,000 civilian deaths by assassination, massacre and night raids. This was quickly followed by their subsequent release of the Iraq War Logs, which informed people in Iraq about 15,000 civilian casualties previously unreported and not known to the international community. WikiLeaks' release of 779 classified reports on prisoners of the U.S.military prison in Guantnamo shed light on illegal detention and interrogation practices that were carried out during the Bush regime.

After their release of documents concerning wars in the oil-rich Middle East, the Pentagon swiftly attacked WikiLeaks. Despite the organization's careful harm minimization efforts of redacting sensitive information, U.S. Joint Chief of Staff Mike Mullen threatened the whistleblowing site with a bombastic line of "blood on their hands." This official spokesperson of the Pentagon called WikiLeaks publications "reckless" and "irresponsible" although not one single shred of evidence has ever been brought forth that any of these disclosures caused anyone harm.

At the time WikiLeaks began publishing the U.S. Diplomatic Cables, revealing countless wrongdoing, then Secretary of State Hillary Clinton (in the Obama administration) strongly condemned the whistleblowing site. Clinton, who admitted the Iraq War was a mistake and confessed how the U.S.had created Al Qaeda and ISIS, said: "This disclosure is not just an attack on America's foreign policy interests. It is an attack on the international community."

Contrary to the U.S.government's portrayal of itself as a victim, WikiLeaks' released documents which have shown the truththat they are the perpetrator of human rights abuses, engaging in illegal wars. Manning's conscience, through WikiLeaks' brave act of publishing, was a response to the U.S.imperial war of aggressionthe massive political offence committed against the entire world.

America's political offense continued even after the Bush-Cheney era. President Obama not only refused to prosecute the previous administration's war criminals, he himself became a successor to their crimes. In 2009, instead of withdrawing troops, he added more, fueling the war in Afghanistan. Despite his promised "sunshine" policyto make the government more transparent Obama waged an unprecedented war against truthtellers, charging Manning and the NSA whistleblower Edward Snowden under the Espionage Act.

With his 2012 campaign slogan of "Forward", Obama went "forward" with Guantanamo Bay and drone attacks. He signed into law the National Defense Authorization Act (NDAA) of 2012 that contained controversial provisions of a sweeping worldwide indefinite detention, which is still effective today. With his "kill list", this supposedly 'progressive' president expanded the power of the executive branch in ways that enabled him to act as accuser, prosecutor, judge, jury, and executioner all in one, including assassinating anyone, even U.S. citizens.

In 2012, declassified military documents obtained through a Freedom of Information Act request revealed that the U.S.government has designated WikiLeaks and Julian Assange as enemies of the United States, putting the media organization in the same legal category as Al Qaeda and violent terrorist groups.

From secret grand jury investigation to extrajudicial financial blockade, to harassment of WikiLeaks' associates at borders (including Assange's lawyer), the Obama administration attacked the publisher who has fiercely defended the public against the empire's repeated human rights abuses and egregious political offenses. Now, in the Trump administration's indictment against Assange on 17 counts of violating the Espionage Act and one count of conspiracy to commit computer crime, we are seeing the escalation of this unprecedented war against the First Amendment.

Assange's U.S.extradition case is our fight against the empire's perpetual "war on terror"the war that started with lies, and a war with no end. This is a political battle and Assange's freedom cannot be won by the court.

Julian Assange created a new form of journalism that enabled a free press to perform its true functionthe role of watchdog for democracy. WikiLeaks opened a possibility for ordinary people to use information as power to participate in unfolding events, thwart authoritarian planning, so as to never repeat the tragic hijack of history that led to atrocities in distant landskilling tens of thousands of innocent people.

Networks of contagious courage that emerged through waves of whistleblowers began to dissolve the conspiracy of governance. The heart of democracy that is resuscitated now inspires us to move toward justice, to recognize our own significance and look one another in the eyes as we become who we are meant to be movers and shakers of our own history. Only through the courage of each individual to overcome fear and confront this terror that has been unleashed, can we end this war and free those who sacrificed their liberty, so we all can be free.

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Assange's Extradition: An Escalation of the US War on Terror - Common Dreams