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SCOTUS Gives Private Religious Schools The Okay To Discriminate Freely – Forbes

United States Supreme Court Building, Washington DC, America

It makes a certain amount of common sense; a religious organization ought to have the freedom to make sure that all its staff are on the same faith page. But the Supreme Court just took this argument much, much further.

In 2012 the court issued a decision onHosanna-Tabor Evangelical Lutheran Church and Schoolv.Equal Employment Opportunity Commission that cemented the ministerial exception, the principle that religious organizations should be exempt from the usual anti-discrimination laws when it came to their employees involved in ministry. The case didnt provide a clear guide to exactly which employees counted as ministers, but thanks to the Supreme Courts new decision, we know that teachers at religious schools come under that umbrella.

The court lumped two cases togetherOur Lady of Guadalupe School v. Morrisey-Berru, and Kristen Biel v. St. James Schoolto address this very issue. This has been touted as a First Amendment case, based on both the free expression clause and the establishment clause. Basically, the idea is that the government should not be able to tell a religious school how to run its business.

The court found against the fired teachers at the center of both cases, holding that ministerial exception applied to anyone who teach faith to students, even if they have neither the training or title involved in doing so.

One may argue that this all makes sensewhy would a Catholic School want to hire a Muslim or atheist teacher, and why would those teachers want to work at a private Christian school in the first place? Shouldnt a religious school be able to keep a staff of believers?

But the decision goes far beyond that question. Groups like the American Center for Law and Justice have been applauding the decision as a win for religious freedom, but they havent been very vocal about the actual content of the cases.

That may be because neither has anything to do with the fired teachers faith. Morrissey-Bellu sued her school alleging age biasbeing fired for being too old. Biels case is also disturbing. She alleges that she was fired after telling administration that she had been diagnosed with breast cancer and would have to take time off for treatment. She was told that having two teachers in the year would be too confusing for the students.

The Supreme Court didnt take a position on whether or not the alleged discrimination had actually occurred; their ruling is essentially that even if discrimination (discrimination that would be illegal in any other work setting) actually occurred, it was none of the courts business. As Justice Alito wrote for the 7-2 majority:

The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission

Discrimination in private religious schools is nothing new. Investigations found many Florida private schools exercising anti-LGBTQ policies, and the Catholic church has more than once fired teachers for being gay.

This ruling throws the doors wide open. A private religious school need only assign every teacher something like a ten-minute devotional duty as part of the day, and that teacher now falls under the ministerial exception. The school may fire that teacher at any time, for any reason, and that teacher will have no legal recourse. This may be called a win for religious school First Amendment rights, but the First Amendment rights of their teachers have just been clobbered.

The capper here is that in some states, those private religious schools are able to accept students paid for with vouchers, meaning that taxpayers foot the bill for schools that are able to freely discriminate in ways the taxpayer might find objectionable. Private religious schools have often resisted taking taxpayer dollars because of fears that government money comes with government strings attached; slowly but surely, the Supreme Court is cutting those strings, and with them, any sort of accountability to taxpayers themselves.

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SCOTUS Gives Private Religious Schools The Okay To Discriminate Freely - Forbes

Protesters, here is legal advice on getting pro bono representation after an arrest and your First Amendment – REVOLT TV

REVOLT.TV is home to exclusive interviews from rising stars to the biggest entertainers and public figures of today. Here is where you get the never-before-heard stories about whats really happening in the culture from the people who are pushing it forward.

Due to the past few months of the Black community dealing with the killings of Breonna Taylor, Ahmaud Arbery, George Floyd and more back-to-back; we are no stranger to the art of protesting. Thankfully, when Atlanta protesters are arrested and resources are limited, attorney Durante Partridge offers pro bono legal help to those in need.

I know a lot of lawyers Im familiar with or I interact with regularly, Partridge tells REVOLT about his extensive network who he can rely on to help protesters nationwide. They post things on their social media and things like that just to let it be known. Do research a bit [about] different lawyers and try the different bar organizations to see if they have the information that can lead you in the right way.

REVOLT had the chance to speak with attorney Partridge to get his insight on what actions to take when stopped by the police, pro bono representation, and how to properly exercise your First Amendment right. Get the legal facts below.

What inspired your pro bono representation of protesters who were arrested in Atlanta?

My background. Since I have been an attorney, and even before, [Ive been] just doing a lot of protesting, organizing and just being part of different groups who also do the same thing or thats their foundation. Theyre in the streets protesting, theyre challenging politicians to change policy and things along those lines. Ive always been around it, so it was a no brainer to step out and step up to do something... That doesnt take away from public defenders or anything like that. I respect everyone thats on the frontline, but we all have a job to do. We all have a role to play in that regard.

How exactly do these pro bono services work?

Essentially, we have a group of lawyers in Atlanta who are normally retained by clients and I believe it was about 300-400 lawyers who got together, and created the ATL Justice Lawyers Group on Facebook. If anyone needed assistance or continued to need assistance with respect to our representation for protesting, they could contact us at our email [address]... Once they email us, someone from the team will grab their information, make contact with them and pair them with representation. Its a lot bigger than myself.

One of the lawyers that I look up to in the community a lawyer by the name of Lawrence Silverman just put out a tweet that really compelled a lot of people to just step up and help out, including myself. Basically that call-to-action which wasnt necessarily a call-to-action but just seeing fellow colleagues put themselves [out there] made sense for a lot of other people to do the same, and we just came together to form this coalition of lawyers who are helping people and trying to do good work for the community.

For those Black or brown people who may not be in Atlanta or have the means to pay for legal help if theyre arrested, how do you advise them on seeking out help?

I actually went to law school in Houston and I have a couple colleagues out there [a] lawyer by the name of Brenda DeRouen. She tapped into her network and basically created a list of names as it relates to different lawyers, different Black lawyers specifically, that were interested in helping out and [representing] some of our protesters who are out... If you have been arrested and you dont know, just check with some of the local bar association platforms within the local community. Thats probably a good place to start. From there, just check-in with different lawyers to see if they offer some service with respects to help with protesters.

How have you seen corrupt police officers abuse power and their positions in the courtroom?

Its interesting and its part of the reason why Im not practicing as an assistant D.A. I saw so much. I still see so much as it relates to police reports not [being] 100% accurate and things like that. What happens when we talk about an abuse of power, just having that authority as an officer to write your own reports and in some instances, youre not writing those reports right on the spot. You might take some notes and then revisit it later, but a lot of that comes off of your recollection of what happened. As humans, we have a tendency sometimes to paint things in a certain light that may appear to be more positive for our narrative or not in some situations. I did see a lot of that and had to correct a lot of that as well, especially in those situations where things were recorded and the police report contradicts that of whats in the recording, or vice versa.

I try to challenge officers all the time as it relates to their police reports and I like to give the best evidence that I can, which typically is gonna be dash cam video, bodycam video or things like that, which will shed light on what really happened as opposed to relying on someones memory.

I tell clients all the time, We have a police report [and] a police report is helpful to give us some direction. But, I dont 100% rely on police reports and I have to remind some of my prosecutor colleagues, as well, that they should not also.

What actions do you advise Black people to take when theyre stopped by police?

If at all possible, I would record the interaction. We want to make sure that we survive the encounter and that we document the encounter as best as possible. If were in a situation where were being pulled over, just start your camera. Even if its just audio recording, have some sort of documentation as it relates to the altercation. We see cases where officers will turn off their bodycam, or not activate the bodycam... Just so theres no issues in respect to what actually happened, I would definitely say document everything, take notes in relation to who stopped you and how they interacted with you, as well, because if theres any issues with that interaction, you are empowered to go and make a complaint against those officers. Theyre not totally immune to any issues if they are doing wrong.

The most important thing, I think, is to survive the encounter. Its unfortunate that we have to have that outlook, but given some of the things that weve seen in the media, I just feel like thats the most important thing and that we can live to fight another day. In some situations, weve done nothing to provoke the negative actions or reactions. So, Im not saying we should bow down or anything like that. But, if an officer is doing the wrong thing, then we need to be able to survive that, file our complaint and be able to follow up to get those people removed from the local police department or wherever theyre working. Those are the primary things that I would suggest when getting stopped.

Theres a lot of misconceptions about exercising our rights, and what we can and cannot do. How do we properly exercise our First Amendment?

I tell people all the time, especially during this climate, the First Amendment is very important. We have to realize the fine line that we have regarding the First Amendment. What I can say in regards to that... just do it. Speak your mind, speak on your opinions, and your thoughts, and spread the narrative. Thats the most important thing we can do is speak. Now, the limitations come on the First Amendment when we are impeding on someone elses rights typically. For instance, if we have a non-disclosure [agreement] or something like that in place and were speaking on something that were under contract to not speak on, then that creates a problem. Or if were inciting some type of violence or something along those lines, then we dont have the freedom to speak as it relates to that. Again, thats impeding on someone elses rights.

As far as protesting, posting everything that goes to not necessarily pushing a narrative, but exploiting information and just putting a bigger spotlight on these issues, continue to do it and dont shut up. A lot of us here in Atlanta, were older or generations above the current generation thats leading the protests right now. Were encouraging them to stay out in the streets and keep going because youre making the change whether you see it or not. These policymakers are actually talking about this stuff on a daily basis, [and] trying to figure it out. A number of confederate monuments are starting to come down and were really gaining traction and the talks of reparations. Its just beautiful and a lot of things are happening at this point. We just have to keep going and doing what we have to do.

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Protesters, here is legal advice on getting pro bono representation after an arrest and your First Amendment - REVOLT TV

Chamber Sip-N-Learn Event Will Cover Bias in Media – San Clemente Times

Staff report

The San Clemente Chamber of Commerces July Sip-N-Learn Event will focus on Bias in the Media, and will be presented by First Amendment Voice.

The Zoom call event will take place on Thursday, July 23 from 5:30-6:45 p.m. and will be led by Steve Miska, Executive Director of First Amendment Voice. First Amendment Voice is a nonpartisan, nonprofit, 501c (3) organization that aims to facilitate inclusive dialogue on civic matters to educate and inspire citizens to engage on important matters in their communities.

Bias in the Media event topics will include exploring trends in the media landscape, learning how technological change shapes information consumption, the importance of local news and breakout sessions. Picket Fence Media Publisher Norb Garrett will participate in the event.

To register, email susie@scchamber.com by Friday, July 17. A small donation of $8 is requested for this event. Cost for Chamber members is $5. To learn more about First Amendment Voice, visit firstamendmentvoice.org.

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Chamber Sip-N-Learn Event Will Cover Bias in Media - San Clemente Times

Woman who refused to wear mask wants half of $100,000 donated to Starbucks barista – WANE

SAN DIEGO, Calif. A California woman took to social media to criticize a Starbucks barista for refusing to serve her because she didnt have on a mask. That barista ended up getting $100,000 dollars in donations.

Now the spurned customer wants half of that money and is threatening to sue to get it.

Amber Gilles says she posted a photo of barista Lenin Gutierrez after he asked her to wear a mask at Starbucks.

The caption reads Meet Lenen from Starbucks who refused to serve me cause Im not wearing a mask. Next time I will wait for cops and bring a medical exemption.

That post exploded online, and a GoFundMe to raise tip money for Gutierrez surpassed $100,000.

Gilles claims she has medical problems preventing her from wearing a mask and that she was discriminated against. She also said she thinks masks are not effective.

I get shortness of breath, dizziness and it messes with the heartbeat, said Gilles. And I do have asthma as well, and I do get maskne. So theres several things going on and not only that but it doesnt even work.

She shared two pieces of paperwork to show what she calls a medical exemption. A 2015 doctors report she shared shows analysis of her uterus and an ovarian cyst.

And a handwritten note with a San Diego chiropractors letterhead that she asked not to be shown on camera says she has underlying health conditions that prevent her from wearing a mask.

She says her post about the experience is a First Amendment right.

It was discrimination and everybody is okay with it and enabling and rewarding that kind of behavior, said Gilles.

Gilles wants half of the money donated, which was given to Gutierrez in cash last week, and is threatening to sue.

She says the lawyers shes spoken to about taking her case are expensive and she cant afford one yet so she started her own GoFundMe to raise legal fees.

When asked if she has any apology or message to the public, Gilles replied: No absolutely not. I feel like I need the apology. Ive been discriminated against, Im the one whos sick.

Starbucks now requires customers to wear facial coverings or masks in all 9,000 of its company-owned American stores.

The mandate supersedes local laws in some states or cities that might not require wearing one.

Customers who refuse to wear a mask inside can order using delivery, the drive-thru or curbside pickup, the company said.

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Woman who refused to wear mask wants half of $100,000 donated to Starbucks barista - WANE

Trump-connected college to host in-person graduation, despite state limits on gatherings – POLITICO

The school released a list of safety precautions it is taking for the ceremony. Among them, graduates and other attendees will be screened for Covid-19 symptoms, required to wear masks and sit 6 feet apart from each other.

But Ryan Jarvi, press secretary for Michigan Attorney General Dana Nessels office, said that "organized gatherings of more than 100 people are prohibited by law in that part of the state, and such events clearly show a lack of consideration for the dangerous threat this virus presents."

Emily Stack Davis, a spokesperson for the college, did not confirm how many people were expected to attend. MLive reported that the ceremony is expected to bring 2,600 people to the city of 8,000 residents.

Jarvi said, Should this event proceed, we trust the local law enforcement agencies to exercise their authority and discretion in their enforcement efforts.

We sympathize with those who want to celebrate the success of college graduates, but the unfortunate circumstances surrounding this pandemic have made that difficult for many, and we encourage alternatives to large assemblies that could further jeopardize the health of many people."

Hillsdale College said it had communicated its plans to Gov. Gretchen Whitmers office more than a month before the events. The college also said it continued to work with local law enforcement and health officials; the state Attorney Generals office likewise suggested this was the appropriate and necessary step.

The college, in a press release, said Hillsdale Colleges Commencement is an 'expressive activity' protected by the First Amendment. So far, the college still intends to put on the ceremony.

"Commencement is the most significant event in the life of a college, said Arnn. As old as the first universities, this milestone represents the conclusion of the Colleges labor and also inaugurates an even greater undertaking: each graduates commencing to live a good and happy life in accordance with the highest principles, a life for which they have spent four years preparing.

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Trump-connected college to host in-person graduation, despite state limits on gatherings - POLITICO

Religious liberty scores a win at the Supreme Court – Bangor Daily News

In a year beset by disappointing decisions from the Supreme Court, a trio of religious liberty cases decided this term provides constitutionalists with some hope.

Lets review:

Little Sisters of the Poor v. Pennsylvania: The Little Sisters of the Poor need no introduction. This order of female Catholics has been serving the elderly in 30 countries for more than 175 years. Although the Little Sisters seem like an unlikely target, the order has been in the crosshairs of one government or another for nearly a decade. In a 7-2 decision written by Justice Clarence Thomas, the Supreme Court held that the federal government had the authority to exempt the Little Sisters from its birth control mandate.

Sadly, the legal battle may not be at an end for the Little Sisters. The case likely will go forward on other grounds, but the court strongly implied that the Religious Freedom and Restoration Act (RFRA) would operate to protect the conscience rights of the Little Sisters. That statute, the court explained, provides very broad protection for religious liberty. It forbids the government from substantially burdening a persons exercise of religion unless the government can demonstrate that there is no less restrictive means by which it can further a compelling government interest.

The contraceptive mandate clearly fails RFRAs test. Certainly, there are other ways the government can provide contraceptives without forcing nuns to do so.

In Espinoza v. Montana, the Supreme Court reaffirmed the fundamental right of families to send their children to the school of their choice, including religious schools. By a vote of 5-4, the court held that a state program to help families cover the cost of private school may not discriminate against schools with religious missions.

At issue in the case was a modest Montana program that granted tax credits for donations to organizations that awarded private-school tuition scholarships. The Montana Supreme Court held that the states Blaine Amendment forbade Montana from providing the tax credits to parents who chose a religious school.

The Supreme Court reversed. The court held that Montanas Blaine Amendment discriminated against religious schools and the families whose children attend them.

In an opinion written by Chief Justice John Roberts, the court held that the Free Exercise Clause protects religious observers against unequal treatment. Montana had discriminated on the basis of a schools religious status, plain and simple. The courts decision strongly suggests that similar amendments remaining in 35 states are constitutionally infirm and may not be used to discriminate against religious schools.

In Our Lady of Guadalupe v. Morrissey-Berru, the court held that the First Amendment bars courts from intervening in employment disputes involving teachers at religious schools. Writing for the court, Justice Samuel Alito stated that the First Amendment protects church autonomy including the right of religious institutions to decide matters of faith and doctrine without government intrusion. This protection, Alito noted, was crucial to the Framers of our Constitution the British Crown, for example, had the right to fill religious offices and to otherwise control religion.

As applied to schools, the court recognized that teachers who are entrusted with inculcating religious values and beliefs are ministers of the faith, even though they are not formally ordained. As such, the government may not interfere with a religious schools decision to hire or fire such an employee.

As Alito recognized, parents choose to send their children to religious schools for religious education and formation. Thus, a narrow interpretation of the ministerial exception would have interfered with the ability of parents to raise their children with a distinctly religious education. In short, teachers at religious schools play a critical role in transmitting the faith to the next generation and are properly categorized as ministers.

Justice Thomas has famously lamented that the Free Exercise Clause seems to rest precariously on the lowest rung of the courts ladder of rights. With its trifecta of religious liberty decisions this term, the Supreme Court may finally be poised to give equal weight to religious liberty. Its about time.

Erin Hawley is a senior legal fellow at Independent Womens Law Center. She wrote this for InsideSources.com. The BDN publishes opinions from partner news services to bring a wider variety of perspectives to readers.

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Religious liberty scores a win at the Supreme Court - Bangor Daily News

Gene Policinski: Our rights to speak, assembly and seek change have limits – The Phoenix

This spring-now-summer of protest shows no signs of fading away, as demonstrators make their voices heard on issues as disparate as health regulations, gun violence, Confederate statues and institutionalized racism.

Through it all, the First Amendment both fuels those voices and protects those rights at times in collaboration with other amendments in the Bill of Rights.

Still, few of us are steeped in constitutional law and statutory regulations. Primers can provide any citizen with the basics on rights, responsibilities and potential entanglements with a patchwork quilt of federal, state and local laws.

Heres a First Amendment-friendly guide with links to those primers, classes and advisories about protest how the rights of free speech, assembly and petition work when you step outside or go online to be heard.

From the Freedom Forum:

Freedom of Assembly protects the right to peacefully gather with others, without regard to views and opinions when we take the streets in protest or in support of a causes.

Everything you need to know whether youre a student, parent, teacher, school administrator or lawyer about classroom walk-outs and school protests.

Social media platforms are private companies and since the First Amendment only applies to government, they can accept or reject what people post. But given their growing role in public discourse, what are their censorship policies? How do they compare to each other and to the First Amendments protections?

Im just speaking my mind, at work or in a public place how protected is what I say?

Pushing the limits of protected speech: When is disruptive too disruptive?

How it was done: (Video) Shirlene Mercer remembering the modern civil rights-era protests around lunch counter sit-ins in Greensboro, N.C.

From other sources:

The experts at New York Universitys online First Amendment Watch have produced a detailed guide for citizens when recording police activity. Learn about federal and state laws, how your rights apply in different situations and the legal roots for this still-new tool in holding police accountable.

The American Civil Liberties Union (ACLU) has a quick, to-the-point general guide to know your rights at a protest.

The online legal services site FindLaw has a guide to legal issues ranging from basic rights to a section titled somewhat ominously wartime policies. The same site also provides a guide to each states unique laws about protesting in public.

To all of that information, lets add a few additional items:

When protesting, there is no immunity under the First Amendment that allows you to disregard, without potential arrest and penalty, a direct order even one you believe is illegal from a police officer.

The First Amendment rights of petition and assembly do not give you permission to cross or occupy private property; thats still called trespassing. And as to occupying public property: Since the occupy movement a few years ago, many jurisdictions updated their policies regarding public squares, parks and such, with many outlawing overnight stays or blocking the space so that other, non-involved persons are unable to pass through it.

Blocking traffic on a public street, whether an individual effort or a mass protest, likely is illegal. Again, there is no First Amendment shield against arrest, though police action may well depend on balancing the taking of protesters into custody versus clearing the thoroughfare.

The rights of assembly and petition on National Park Service property have certain limitations, with permits required if a group of 25 or more, or pay attention to this the protest is likely to attract a combined audience of participants and those watching of more than 25. A court decision some years ago cleared the way for individuals to protest with no permit conditions, as long as the person was not blocking others from using the park.

Granted, a recitation of the rules, regulations and legal circumstances around exercising your free speech when assembling peaceably to petition for change may lack the passion of the real thing.

But its those freedoms that give legal protection for the passions that have changed the nations laws, policies and even attitudes, about womens rights, racial injustice, juvenile protection laws, labor regulations and rights and much more.

And thats a lot from a little: the simple but majestic 45 words of the First Amendment.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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Gene Policinski: Our rights to speak, assembly and seek change have limits - The Phoenix

Point: Religious liberty scores a win at the Supreme Court. Its about time – Houma Courier

In a year beset by disappointing decisions from the Supreme Court, a trio of religious liberty cases decided this term provides constitutionalists with some hope.

Little Sisters of the Poor v. Pennsylvania

The Little Sisters of the Poor need no introduction. This order of female Catholic religious has been serving the elderly in 30 countries for over 175 years. Though the Little Sisters seem like an unlikely target, the order has been in the cross-hairs of one government or another for nearly a decade.

This week, in a 7-2 decision written by Justice Clarence Thomas, the Supreme Court held that the federal government had the authority to exempt the Little Sisters from its "birth control mandate."

Sadly, the legal battle may not be at an end for the Little Sisters. The case likely will go forward on other grounds, but the court strongly implied that the Religious Freedom and Restoration Act would operate to protect the conscience rights of the Little Sisters.

That statute, the court explained, "provide[s] very broad protection for religious liberty." It forbids the government from substantially burdening a persons exercise of religion unless the government can demonstrate that there is no less restrictive means by which it can further a compelling government interest.

The contraceptive mandate clearly fails Religious Freedom Acts test. Certainly, there are other ways the government can provide contraceptives without forcing nuns to do so.

Espinoza v. Montana

In Espinoza v. Montana, the Supreme Court reaffirmed the fundamental right of families to send their children to the school of their choice, including religious schools. By a vote of 5 to 4, the court held that a state program to help families cover the cost of private school may not discriminate against schools with religious missions.

At issue in the case was a modest Montana program that granted tax credits for donations to organizations that awarded private-school tuition scholarships. The Montana Supreme Court held that the states "Blaine Amendment" forbade Montana from providing the tax credits to parents who chose a religious school.

The Supreme Court reversed the decision. The court held that Montanas Blaine Amendment discriminated against religious schools and the families whose children attend them. In an opinion written by Chief Justice Roberts, the court held that the Free Exercise Clause "protects religious observers against unequal treatment."

Montana had discriminated on the basis of a schools religious status, plain and simple. The courts decision strongly suggests that the Blaine Amendments remaining in 35 states are constitutionally infirm, and may not be used to discriminate against religious schools.

Our Lady of Guadalupe v. Morrissey-Berru

In Our Lady of Guadalupe, the court held that the First Amendment bars courts from intervening in employment disputes involving teachers at religious schools. Writing for the Court Justice Alito stated that the First Amendment protects church autonomy including the right of religious institutions to decide matters "of faith and doctrine" without government intrusion.

This protection, Justice Alito noted, was crucial to the Framers of our Constitution the British Crown, for example, had the right to fill "religious offices" and to otherwise control religion. As applied to schools, the court recognized that teachers who are entrusted with inculcating religious values and beliefs are "ministers of the faith," even though they are not formally ordained.

As such, the government may not interfere with a religious schools decision to hire or fire such an employee.

As Alito recognized, parents choose to send their children to religious schools for "religious education and formation." Thus, a narrow interpretation of the ministerial exception would have interfered with the ability of parents to raise their children with a distinctly religious education.

In short, teachers at religious schools play a critical role in transmitting the faith to the next generation and are properly categorized as "ministers."

Conclusion

Justice Thomas has famously lamented that the Free Exercise Clause seems to rest precariously on the lowest rung of the Courts ladder of rights. With its trifecta of religious liberty decisions this term, the Supreme Court may finally be poised to give equal weight to religious liberty.

Its about time.

Erin Hawley is a senior legal fellow at Independent Womens Law Center. She wrote this for InsideSources.com.

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Point: Religious liberty scores a win at the Supreme Court. Its about time - Houma Courier

The First Amendment and our rights to speak, assemble and seek change – Hopkinsville Kentucky New Era

How do you protest safely during a pandemic? While theres no way to eliminate the danger, one of the obvious and universally recommended measures to mitigate the risk is to wear a mask. In the past weeks weve seen law enforcement pose its own dangers to protesters, employing weapons like tear gas and rubber bullets, as well as increasing their possibility of contracting COVID-19 by arresting them and packing them into confined spaces. But the most ironic of these actions would have to be the police in Washington, D.C., arresting protesters for wearing masks.

In addition to Washington D.C., 18 states and numerous municipalities have anti-mask laws. Many of these laws were passed in the 1940s and 50s to target the Ku Klux Klans use of masks and hoods. The rationale behind these laws that masks embolden people to commit crimes and make those crimes more frightening isnt necessarily outdated. But what is outdated is the fact that while most of these laws make exceptions for things like Halloween costumes and sporting events, and some have exceptions for face coverings worn for religious reasons, none has exceptions for masks worn for public health reasons or during protests. This ignores the fact that our society has undergone two major shifts since these laws were passed that should change our entire analysis of them. First, were in the midst of a pandemic spread by an airborne virus. And second, advances in surveillance technology mean that the right to speak anonymously and associate freely is compromised in a way that its never been before.

The First Amendment protects the right to speak and assemble anonymously, with the understanding that those who engage in political activism often need anonymity in order to avoid prosecution and harassment from those in power. This concept has a long history in the United States Alexander Hamilton, James Madison and John Jay wrote the Federalist Papers under pseudonyms. During the civil rights movement, the Supreme Court found that protecting the anonymity of members of controversial groups was necessary to preserve their freedom of assembly. The landmark 1958 case National Association for the Advancement of Colored People (NAACP) v. Alabama arose out of the NAACPs refusal to turn over lists of its rank-and-file members to Alabama authorities. The civil rights organization successfully argued that publicizing these lists would lead to reprisals against its members, which would dissuade them and any potential recruits from associating with the NAACP in the future. The court recognized that there is a vital relationship between freedom to associate and privacy in ones associations. The Supreme Court has upheld this concept repeatedly. As the court wrote in its 1995 decision McIntyre v. Ohio Elections Commission, Anonymity is a shield from the tyranny of the majority. ... It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation ... at the hand of an intolerant society.

Like tear gas and rubber bullets, invasion of privacy is a weapon that authorities can use against advocates for change. Just as theres a long history of anonymous speech in this country, there is perhaps an equally long history of government agencies surveilling and targeting activists and organizers. Its happened before. Just think of the years that the FBI spent monitoring Martin Luther King Jr., a campaign that included wiretapping, bugging, spying and collecting information about his sex life.

We also know that its happening right now. According to a memo obtained by BuzzFeed News, the Department of Justice recently expanded the Drug Enforcement Administrations power to conduct covert surveillance on protesters demonstrating against the police killing of George Floyd. The rise of facial recognition technology allows law enforcement agencies to do this on a larger scale than during the civil rights era. Government initiatives like the Janus program enable them to draw on a database of faces compiled from social media. As Clare Garvie of the Center on Privacy and Technology writes, It enables anyone whose face shows up in a photo or video to be identified or misidentified by the police. Put another way, face recognition is a tool that can remove the shield of anonymity from the tens of thousands of Americans out in the streets today, protesting the intolerances of systemic racism and anti-blackness.

At this juncture, engaging in political protest without being able to wear a mask is dangerous in multiple ways. As American Civil Liberties Union senior policy analyst Jay Stanley says, [I]ts the spread of facial recognition that is likely to raise the stakes around anti-mask laws the most. The more accurate and widespread the technology becomes, the more situations will arise where people wont want to show their faces. The cameras that increasingly surround us will allow the police to cheaply and easily identify us and who were with, even if part of a giant crowd.

Its yet another risk that protesters have to contend with and where a mask could offer some protection.

Lata Nott is a Freedom Forum Fellow. Contact her via email at lnott@freedomforum.org, or follow her on Twitter at @LataNott.

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The First Amendment and our rights to speak, assemble and seek change - Hopkinsville Kentucky New Era

Where Two or More Are Gathered, the First Amendment Should Protect Them – ChristianityToday.com

The Christian tradition has a lot to say about community. People werent made to be solitary individualists. Aristotle may have been the first to describe man as a social animal, but he was not the first to recognize our inherent sociability.

The Scriptures describe God creating human beings to have fellowship with him. As God himself has eternal fellowship within the triune Godhead, human beings are also designed to have fellowship with each other. As God proclaimed in the Garden of Eden, It is not good for the man to be alone (Gen. 2:18). Over the course of biblical history, God ordains a series of social institutions: marriage, family, state, church. Of course there is an important place for the individual in Christian anthropology. But the point is that the individual existsis created to existwithin a rich set of social interactions, institutions, and associations.

Mainstream contemporary political and legal theory, by contrast, tends to operate within a more constrained social landscape. The focus is on the relationship between the individual and the state. By comparison, non-state social groups get short shrift.

Several scholars have been working to change that, including Luke C. Sheahan, a political theorist at Duquesne University. Sheahans new book, Why Associations Matter: The Case for First Amendment Pluralism, makes the case for the importance of voluntary associations in our political landscape. Rather than the dichotomy of individual and state, Sheahan offers an account of society with three components: individual, state, and association. He argues that the American judiciary in particular has failed to recognize the importance of associations. Finally, he suggests ways to do better in the future. Thats where the First Amendment comes in, with its promises of protection for freedom of speech, religion, and assembly.

The books first task is to develop what Sheahan calls a political sociology of associations. Sheahan, echoing the sociologist Robert Nisbet, argues that human beings are social creatures who crave community and connection with others. This is a point that will intuitively appeal to many readers, but Sheahan doesnt elaborate on the foundations for the insight. One might wonder (as John Dewey did years before) whether this is grounded in psychology, biological instinct, or something else. To these, one could add Christian anthropology. In any case, Sheahan never invokes religious reasons, and it is enough for him that one accepts that humans are social.

Sheahan believes that associating with others has intrinsic value. It is in various social groups, he writes, that ones very personality is shaped and within which one finds identity and purpose. What is an association? Its not just a casual meeting of people. But neither does it have to be a formal organization with a constitution and bylaws.

Sheahan defines associations functionally (again drawing on sociological work by Nisbet), listing seven characteristics. Each association has (1) a function, (2) a sense of purpose (which will often coincide with the function), (3) an authority structure, (4) some amount of hierarchy, (5) solidarity among members, (6) a sense of the associations importance, and (7) a belief that the association has a special status relative to the rest of the world. This is a rich description of an association, whether or not one agrees with every point. This kind of association is one with a strong conception of its own identity and purpose.

So how does all of this apply to our legal system and political culture? Sheahans critique of existing law focuses on the Supreme Courts treatment of associations under the First Amendment. The First Amendment freedom of association protects freedom of speech and assembly (as well as religious freedom and press freedom). But the Supreme Court has done very little to recognize assembly as a right on its own. Instead, it has largely replaced references to freedom of assembly with references to freedom of association.

This might sound like a distinction without a differenceuntil one considers what association means to the contemporary Supreme Court. Association is not valued for its own sake but only as a means to further free speech. Building on the pioneering work of evangelical legal scholar John Inazus critiquing the reduction of association to speech, Sheahan explains that the Supreme Court has made speech as an individual right the predicate for the recognition of any associational rights. Sheahan calls this the First Amendment dichotomy: For the Supreme Court, First Amendment rights are either individual rights, or else there are no limits on how the government can restrict them.

Problems with this line of reasoning were evident in the Supreme Courts 2010 decision in Christian Legal Society v. Martinez. In that case, the University of California Hastings College of the Law required student organizations to be open to any student. It refused to recognize a student chapter of the Christian Legal Society because the group required its officers to hold Christian doctrinal and ethical commitments, including the belief that sex should be reserved for marriage between a man and a woman. The Supreme Court ruled in favor of the university. It could require a student group to admit anyone to membership regardless of the groups own convictions (or else give up its status as a recognized student organization on campus).

Sheahan thinks the court was seriously mistaken in its approach. His point is not just that the courts majority was wrong. Sheahans argument goes deeper, criticizing even the dissenting justices who would have ruled in favor of the student group. The problem, Sheahan says, is that neither the majority nor the dissent gave an account of why associations are valuable apart from their instrumental utility in advancing speech by individuals within the association.

In place of the existing precedents, Sheahan argues that the courts should recognize associations, not just individuals, as bearers of First Amendment rights. He calls this First Amendment pluralism. These rights shouldnt depend on the association being expressive (that is, primarily concerned with speech). This associational right could be rooted in the Constitution (perhaps in the First Amendments guarantee of the right to assemble) or in a specific statute. Sheahan suggests legislation (modeled on the Religious Freedom Restoration Act) that would compel judges to apply strict scrutiny to any government action that infringes on the freedom of association, broadly defined.

An obvious objection to this kind of protection for associations is that it could undercut civil-rights protections. Sheahan has two main responses, both familiar to those following the conversation on associational rights.

First, Sheahan says that his argument only concerns protection for voluntary associations, not for commercial or educational organizations (a racially discriminatory private school could still lose its tax exemption, for example). Second, he suggests that race discrimination might be a unique (and uniquely unjust) form of discrimination, such that a state university (for instance) could rightfully refuse recognition to a voluntary student organization that practices it. Sheahan recognizes that this raises as many questions as it answers. What characteristics make race discrimination different? (Is it the troubled history of race relations in America? The centrality of race to a persons identity?) Are there other kinds of discrimination (sex or, more controversially, sexual orientation) that are covered by the same principles? Does it undercut a principled commitment to associational pluralism to recognize areas where the state has a compelling interest in prohibiting discrimination? These are tough issues. To his credit, Sheahan doesnt shy away from this. But given that hes not the first to confront the issue, hopefully we will see more work on the subject in the future.

Another question that Sheahan doesnt analyze at all is how a defense of associational rights relates to corporate rights. Corporations are voluntary associations of a sort. The Supreme Court has controversially said that corporations can exercise constitutional rights. How does this fit with Sheahans vision of associational rights? And what makes commercial organizations different from noncommercial voluntary associations?

Sheahan doesnt have all the answers. But his book advances an important conversation about how to appreciate the social dimension of lifeincluding associationsin the face of an individualistic intellectual culture. Sheahans synthesis of work by Nisbet and others on the structure of associations is likely to become a point of reference for anyone serious about understanding the structure of human sociability. And his analysis of the Supreme Courts approach to association deepens existing critiques.

Even though this book isnt specifically about religious organizations, this conversation is one that Christian readers in particular have reason to care about. Churches have an interest in seeing continued legal protection as institutions; religious organizations like the Christian Legal Society are directly affected when courts recognize (or fail to recognize) associational rights. Christian teaching is already clear that human nature craves fellowship and sociability. Figuring out how to wisely live that out is a task for everyone.

Lael Weinberger is the Berger-Howe Legal History Fellow at Harvard Law School.

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Where Two or More Are Gathered, the First Amendment Should Protect Them - ChristianityToday.com

The Class of Special Rights Called the First Amendment – National Review

Sister Loraine McGuire with Little Sisters of the Poor after the Supreme Court heard Zubik v. Burwell, an appeal demanding exemption from providing insurance covering contraception, in Washington, D.C., March 23, 2016. (Joshua Roberts/Reuters)

In a piece for the Washington Posts Plum Line blog, opinion columnist Paul Waldman offers a few rather disorienting comments on yesterdays Supreme Court decision inLittle Sisters of the Poor v. Pennsylvania, et al.

The case dealt with whether the Trump administration had the authority to grant religious and moral exemptions to employers who object to covering contraceptives and abortion-inducing drugs in their health-insurance plans, as Obamacares HHS mandate requires. One such employer is the Little Sisters, a group of Catholic nuns who serve the elderly, sick, and dying poor.

In a 7-2 decision, the Court ruled in favor of the administrations authority to grant those exemptions and thus, by extension, in favor of the religious and conscience rights of the Little Sisters.

Waldman observes that the ruling is evidence of a conservative majority on the Supreme Court, one that is determined to create a class of special rights that in practice are enjoyed only by conservative Christians. (Justices Kagan and Breyer will be thrilled, Im sure, to hear of their new assignation.)

This class of special rights Waldman mentions is, of course, the religion clauses of the First Amendment, and conservative Christians continue showing up in court to claim its protections only because their fellow citizens and antagonistic government officials continue forcing them to do so.

Later on, after advocating the abolition of employer-based health-care coverage something many conservatives would welcome Waldman further reveals his ignorance. One benefit of removing employer-based coverage, he avers, would be that it would deprive religious conservatives of the ability to keep suing over contraception, which gives them a focus for their endless cries of oppression and aggrievement.

It is difficult to imagine how one could honestly believe that the Christian owners of Hobby Lobby, the University of Notre Dame, and the Little Sisters of the Poor were overjoyed to have spent nearly a decade in court fighting merely to preserve their right to practice their faith in the public square.

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The Class of Special Rights Called the First Amendment - National Review

By Freeing Mary Trump To Publicize Her Book, Judge Greenwald Upholds First Amendment Sensibilities – Forbes

Judge Hal B. Greenwald ordered that Mary Trump, Donald Trumps niece, will not be prevented by her 19-year-old confidentiality agreement from publicizing her book. The book surveys President Trumps flawed mentality, and his ill-use of his family. The ruling came out at 7 p.m. this evening, just in time for the release of the book tomorrow.

The book, Too Much and Never Enough: How My Family Created the Worlds Most Dangerous Man, is expected to be a blockbuster combination.It will feature Mary Trumps revelations about Trumps development and his nastiness toward his niece and family. Also, Mary Trump practices as a clinical psychologist. The book will feature her analysis of President Trumps personal infused with her uniquely close vantage, while it is not hidden that she presumably has complex reasons for writing it.. .

This ruling was not a foregone conclusion. Mary Trump had signed a confidentiality agreement as part of a 2001 settlement of bitter family litigation. Judge Greenwald had issued temporary restraining orders blocking her and her publisher, Simon & Schuster, from publishing or distributing the book. A judge of the Appellate Division quickly terminated the order with respect to the publisher, allowing it to proceed with printing and publishing over 600,000 copies.However, the Trump family had contested whether to renew the order against author Mary Trump from speaking out.His ruling opens the way for Mary Trump to become a blockbuster media exponent herself of her books revelations and analysis.

The judge said the confidentiality clauses in the 2001 agreement, viewed in the context of the current Trump family circumstances in 2020, would offend public policy as a prior restraint on protected speech' Although the main general interest in this matter concerns the substantive content of her writing and statements, the case and the judges ruling deserves attention.

Judge Greenwalds use of the key term, that blocking her would be a prior restraint on protected speech taps a rich vein in First Amendment law.A prior restraint is a court order chronologically in advance of the speech in question.It orders the entirety of the speech not even to be made.It silences the speaker, without the speech being concretely put out without the actual text being known.

Classic examples of prior restraints were the court orders obtained by the Nixon Administration against the publication by the New York Times NYT and the Washington Post of the famous Pentagon Papers about how three administrations took the country into the Vietnam War. The orders were dissolved by the Supreme Court, with opinions including attention to the doctrine against prior restraints.

An aspect so obvious it may escape attention is that Judge Greenwald called Mary Trumps statements protected speech and viewed the 2001 confidentiality clauses in the context of the current Trump family circumstances. It is not at all completely specious to understand the different perspectives for viewing Mary Trumps legal situation.

After all, Judge Greenwald himself started out issuing a temporary restraining order against Mary Trump.From the Donald Trump side, the 2001 agreement could have been viewed as simply a contract that Mary Trump was seeking to breach. Explaining the argument, Roger J. Bernstein, an experienced New York State litigator, noted that in a run-of-the-mill situation, a contract dispute between two private parties, would not be decided on the basis of public interest considerations.Here, though the case of course involved larger circumstances., he said. He added that the publishers freedom to publish the book meant that there was no longer any confidentiality to protect.

The title of the book refers to President Trump as the Worlds Most Dangerous Man.Whether that is reality or hyperbole probably varies with whom one asks. However, significantly, the title reinforces the strength of Judge Greenwalds order.The 2020 context, not the 2001 context, governs a case like this one.

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By Freeing Mary Trump To Publicize Her Book, Judge Greenwald Upholds First Amendment Sensibilities - Forbes

First Amendment Bright Line in the Digital Age – Courthouse News Service

A First Amendment line that grows steadily brighter is being drawn between American courts in the digital age.

It is the line between e-filing courts that give on-receipt access to reporters and e-filing courts that fight on-receipt access like it was the devils handiwork. In that second group, clerks want to first docket the new filings, which results in delay, which is the enemy of news.

On the access side of the line are the federal courts and state courts in Alabama, Connecticut, Hawaii, New York and Utah, all on a statewide basis, plus individual courts in California, Georgia and Nevada.

On the delay side of the line are e-filing state courts that are spread around the nation, including Illinois, Florida, Kansas, Minnesota, Missouri and Texas. A few individual clerks in California also have also opted for delay.

The evolution in state courts of a restrictive policy on public access roughly matches up with a wave of interest in privacy from administrators over the last decade.

The movement crystallized in a set of conferences in Williamsburg from 2013 to 2016 called Privacy and Public Access, sponsored by the Conference of State Court Administrators and attended by state clerks and administrators from all parts of the nation.

At that conference, the notion of practical obscurity emerged as a dominant theme. The idea behind practical obscurity is that court records in paper form are often difficult to find. Therefore paper records are different from electronic records which are easy to search. And therefore this is the big leap access to electronic records should be restricted.

That train of thought can be translated as saying the public record should be hard to see.

The intellectual dust storm that originated in Williamsburg has lingered in the restrictionist views of many state court administrators. In contrast, it is almost entirely absent from the federal courts.

I have never heard a federal official talk about practical obscurity.

And the state court opposition to on-receipt access is not isolated, it is organized. Williamsburg sponsor COSCA worked with the National Center for State Courts to oppose a 2016 ruling out of Californias Central District that said the First Amendment right of access attaches to newly filed court records upon the clerks receipt.

I recently saw a survey sent out by COSCA and the national center in support of that opposition. The survey asks administrators across the nation to opine on the terrible things that might result from on-receipt access. One answers that the public might see unfounded allegations. Oh my goodness!

But also scattered within the survey are answers from administrators who say on-receipt access is no problem.

Question: What is the timing: are documents provided upon submission or after acceptance.

Answer from Utah state court administrator Dan Becker: Public documents are available upon filing.

Q: If you were required to provide same-day access to civil complaints and all exhibits and other attachments when filed (before any review or acceptance process by the court) on paper or electronically, could you do so?

A: Yes.

Q: What challenges would this pose?

A: None.

The survey was intended to support an amicus brief arguing that no right of access existed to court pleadings before a court hearing none at all. That argument was sent packing by the Ninth Circuit in its Planet III ruling.

But, in reviewing the brief recently, what I found most telling was its view of the press as simple scandal mongers. The brief concludes by saying on-receipt access is an open invitation for those who would use such records to gratify private spite or promote public scandal.

The rational answer to that bit of derision comes fromJudge Henry Coke Morgan Jr. in the Eastern District of Virginia. His conclusions were forged in the fires of a four-day trial where he was looking at me from about ten feet away while I testified under oath.

I think he had a good idea of why I pursue First Amendment access, in the face of just about the entire administrative apparatus of state courts in America.

Plaintiff, and other members of the press and public, have historically enjoyed a tradition of court clerks making most newly filed civil complaints publicly available on the day that they are filed, said the judge.

I think that the point the plaintiffs making is that it has its news value as soon as it happens, he added. If you dont get it when its fresh, its like stale bread. So I think the plaintiffs point on that is well-taken.

His court as well as the appellate court above provide on-receipt, public access to new pleadings.

_____

More stories and columns on the Virginia trial:

National Press Corps Enter First Amendment Fray to See Court Filings on Same Day * U.S. Judge Slaps Virginia Clerks With $2 Million Fee Award in First Amendment Case*E-Filing and the First Amendment* Matter of Choice *The Dicta: Guesswork About Press Access * Presumption and Fact: The Ask for Access *CNSs View Accurately Told*Access Solution: The E-Inbox *Access Law in the Electronic Age * Bread and News * Flip Side of Court Tech * First Amendment Right to See Court Documents on Day of Filing * Tradition of Same-Day Access * The News Cycle

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First Amendment Bright Line in the Digital Age - Courthouse News Service

RCFP statement on investigation into Asbury Park Press reporter’s arrest – Reporters Committee for Freedom of the Press

The Reporters Committee for Freedom of the Press is calling for a New Jersey county prosecutors office to publicly clarify that Reporters Committee resources do not support the findings from an investigation into the arrest of reporter Gustavo Martnez Contreras.

Law enforcement officers tackled and arrested Martnez Contreras, who is a reporter for the Asbury Park Press, and slapped his phone out of his hand while he was live streaming the violent arrest of two teenagers at a June 1 protest that was part of the nationwide demonstrations demanding justice, an end to violence against Black Americans and greater police accountability. An investigation into the arrest improperly cited Reporters Committee resources in concluding that the arresting officers did not know they were apprehending a reporter.

In a letter sent today to Monmouth County Prosecutor Christopher J. Gramiccioni, Reporters Committee attorneys note that the guide and tip sheet investigators cited in their findings only detail practical safety tips for reporters covering protests not the legal standard for when officers should know someone is a journalist. The letter asks the prosecutors office to both update its investigative findings and issue a statement clarifying that the Reporters Committees resources do not support the conclusion that officers could have believed Contreras was a protester.

Reporters Committee resources are intended to help journalists stay safe while covering protests, and its improper for the prosecutors office to use them to conclude officers acted reasonably under the law when arresting Gustavo Martnez Contreras, said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. Our resources dont support the finding that a reasonable officer wouldnt have known Mr. Martnez Contreras was a journalist. Both his account of the incident and the investigations findings illustrate that he identified himself as a journalist, and was complying with law enforcements orders while displaying his press credentials, when officers tackled and arrested him.

Arrests of journalists are particularly egregious violations of the First Amendment, as they dont just chill reporting, they shut it down entirely. We urge the prosecutors office to clarify that the Reporters Committees guide and tip sheet do not support its conclusions.

Read the full letter to the Monmouth County prosecutors office.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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RCFP statement on investigation into Asbury Park Press reporter's arrest - Reporters Committee for Freedom of the Press

The third became the first | News | rheaheraldnews.com – Rheaheraldnews

Throughout our history, United States citizens have debated 45 words that have become the bedrock on which our culture stands: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Since the death of George Floyd, I have spent an enormous amount of time reflecting on what has occurred and continues to occur in our country. What originated in Minneapolis, Minnesota, has brought forth a level of dialogue around not only racism, but also our First Amendment right to free speech and peaceful assembly.

I did what any lifelong learner would do I researched it and refreshed my knowledge on those 45 words that are imprinted on Americans. Did you know that the First Amendment was actually supposed to be the Third Amendment? The original first and second amendment were defeated at the time. The original First Amendment dealt with how members of the House of Representatives would be assigned to the states a measure that would have resulted in more than 6,000 members of the House of Representatives! The original Second Amendment? It addressed congressional pay (it was later approved as the 27th Amendment 203 years later).

And then the third became the first. How fortuitous it was to have the first two amendments fail so that the third would become the first! The amendment for which the United States is known around the world and arguably has influenced other nations became first through fate.

While our courts have decided that some speech is protected and some not (fighting words, child pornography, true threats, etc.), it is important to remember that we should not necessarily differentiate who is entitled to free speech and assembly and who is not. Remember the document celebrated during our recent holiday: that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. Those 45 words of the First Amendment encapsulate the liberty we cherish. You cannot be supporters of freedom of speech and assembly of only ideas with which you agree and only people with whom you agree.

The bottom line is this: Our First Amendment rights are fundamental to the fabric of our nation. Whether or not we agree with the speech or demonstration, we have been afforded this right by our founding fathers. Our ability to contribute to the marketplace of ideas whether or not we like or agree with those ideas and those who share them is what makes our country an incomparable place to live, work and play.

-Randy Boyd is president of the University of Tennessee.

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Movie Theaters Sue New Jersey Claiming First Amendment Right to Reopen – Variety

A group of movie theater companies including AMC, Cinemark and Regal have filed a lawsuit against the governor of New Jersey, claiming a First Amendment right to reopen during the pandemic.

The companies, led by the National Association of Theatre Owners, is challenging Gov. Phil Murphys order that allows malls, libraries, churches and museums to reopen, but keeps movie theaters and other entertainment venues closed.

Plaintiffs bring this action to ensure that movie theatre are treated equally with other similarly situated places of public assembly, and in order to exercise their First Amendment rights to exhibit films of significant artistic, cultural, political and popular merit, the lawsuit states.

The suit takes particular issue with Murphys orders allowing churches to reopen, with indoor gatherings limited to 100 people or 25% capacity. The plaintiffs contend there is no reason that theaters should not be allowed to reopen under the same restrictions.

There is no rational basis for Defendants distinction between, for example, places of worship and movie theatres for purposes of reopening, yet Defendants have allowed places of worship to reopen while movie theatres must remain closed, with no scheduled date for reopening, the lawsuit states.

Theaters have been designated for reopening under Stage 3 of the states protocols. The state entered Stage 2 on June 15, and the state has subsequently allowed indoor malls to reopen. Gyms, fitness centers, indoor amusement parks, performing arts centers, and multiplexes remain closed.

The major cinema chains are hoping to be able to open by the end of July. New Jersey is one of a handful of states that have not already allowed theaters to reopen or set a timeline that would allow them to do so by the end of July.

The exhibitors have met with state officials to share their safety protocols, but allege that New Jersey officials have been unmoved.

A spokesman for the National Association of Theatre Owners and a spokesman for Gov. Murphy did not immediately respond to requests for comment.

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Movie Theaters Sue New Jersey Claiming First Amendment Right to Reopen - Variety

The First Amendment and alternative proteins – Beef Magazine

Independence Day may have come and gone, but it's clear that patriotism is alive and well in this country. I dont know about you, but it was so nice to unplug for a few days and spend some time with family, friends and fellow patriots as we celebrated our God-given freedoms and liberties that we enjoy in the United States of America.

And whether you spent the holiday participating at a peaceful rally or shooting off an explosive display of colorful fireworks, the best part about our country is our First Amendment the freedom of speech.

Related: Are fake meats gaining traction this summer?

As a blogger, writer and speaker by trade, this freedom is not lost on me. We are a country of free thinkers, and I hope our ability to freely express our opinions without fear of repercussion is something that is never stripped from us.

All that said, sometimes the First Amendment can be distorted in a way that does harm to others. Im not talking about being offensive or saying something that isnt considered politically correct or in poor taste. Im talking about something that leads to less transparency and greater consumer confusion in the marketplace.

Related: 8 things about fake meats for beef producers to consider

On June 9, a letter submitted by individuals at Harvard Law School cited the First Amendment as the main reason why cell-cultured protein companies should be able to freely label their products as they see fit.

Here is an excerpt from the letter:

The Harvard Law School Animal Law & Policy Clinic writes to respectfully urge the U.S. Department of Agriculture (USDA) to adopt a labeling approach for cell-based meat and poultry products that does not overly restrict speech and that respects the First Amendment. The Animal Law & Policy Clinic (ALPC) undertakes work in the area of animal law and policy, domestically and internationally, and focuses on high-impact opportunities to improve the treatment of animals through litigation, policy analysis, and applied academic research.

As part of this work, ALPC closely monitors technological developments within the food sector that have the potential to affect animals. Cell-based meat and poultry products (hereinafter referred to collectively as cell-based meat, also known as cultured or cultivated meat) are such innovations in food, with tremendous potential to positively impact animals, human health, and environmental sustainability.

As USDA Secretary Perdue envisions, cell-based meat could even offer a way to meet the tremendous protein needs of the growing global population. While the regulatory pathway for cell-based meats is not yet entirely defined, the USDA Food Safety and Inspection Service has recognized cell-based meat and poultry products as meat and poultry products under its governing statutes, has asserted jurisdiction over labeling for such products, and is in the process of drafting labeling regulations for cell-based meats.

It is at this juncture that ALPC writes to urge USDA-FSIS to adopt a labeling approach that does not overly restrict speech and respects the protections afforded to commercial speech under the First Amendment. As detailed extensively below, a ban on the use of common or standardized meat and poultry terms on non-misleading cell-based meat labels is likely unconstitutional, as are labeling restrictions that are more extensive than necessary.

USDA-FSIS should wait until it has a better understanding of the composition and safety of finished cell-based meat products and an opportunity to review proposed labels before establishing speech restrictions that raise constitutional questions. By delaying the establishment of restrictive labeling requirements, USDA-FSIS will be able to assess whether, or to what extent, such speech restrictions are actually necessary in order to protect consumers from being misled.

Further, USDA-FSIS should only compel process-based disclosures or qualifiers on cell-based meat labels on a case-by-case basis when doing so is necessary to protect consumers from an increased food safety risk or material compositional difference.

While the folks at Harvard build a good case, I urge USDA to ensure that these products are clearly labeled to distinguish what is grown in a petri dish compared to what is produced on the hoof.

Clearly, these products are going to make claims on environmental, animal welfare and nutritional superiority to traditional meat products, as stated in this letter. While these claims are unproven and unsubstantiated, there should also be clearly defined labeling rules in place that limits these companies from also stealing our nomenclature and posing as regular beef.

Although I could talk at great lengths on this topic, Ill leave you with this every food offered to consumers should have to follow the same rigorous testing, limitations on marketing claims and proper and clear labeling rules, no matter what. Whether its traditional butter or a new-age petri dish protein, consumers deserve clear, transparent and well-defined labels that allow them to make educated and informed decisions in the grocery store.

By the way, I recently sat down with Willie Vogt, Farm Progress executive director, to discuss alternative protein trends, summer grilling, beef nutrition and more.

The interview was featured on the Around Farm Progress podcast. Of our chat, Vogt writes, Beef, it's on the grill this summer. But there's more going on with the beef industry, from how to cook the high-quality protein properly, to climate change, to a changing competitive landscape.

To explore those topics, in this episode of the podcast Around Farm Progress, Amanda Radke, long-time blogger forBEEF magazine,offers insight on a few hot topics, from grilling resources, to climate change and she even discusses the marketing approaches taken by meat-alternative companies. Oh, and she has an up-and-coming competitor in promoting beef, her daughter Scarlett.

Listen to the entire conversation by clicking here.

The opinions of Amanda Radke are not necessarily those of beefmagazine.com or Farm Progress.

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The First Amendment and alternative proteins - Beef Magazine

Indie Director Blasts Government’s Argument that Filming Isn’t Protected Speech – Hollywood Reporter

Gordon Price's attorney argues the government's position that filming is only facilitative of speech is "akin to arguing writing or typing can be freely regulated because they merely 'facilitate' speech and press rights."

An independent filmmaker is challenging the ability of the government to charge fees for commercial shoots in national parks and he's pushing back against its defense that the act of filming isn't protected by the First Amendment.

Gordon Price in December sued U.S. Attorney General William Barr, along with heads of the National Parks Service and Department of the Interior. He had been cited by NPS for filming without a permit in public areas of the Yorktown Battlefield in Virginia's Colonial National Historical Park for his feature Crawford Road, which centers on a stretch of road in the area that is rumored to be haunted and is home to multiple unsolved murders.The filmmaker argues that charging a fee for commercial shoots in national parks is effectively an unconstitutional prior restraint on free speech.

The government in June filed a motion to dismiss for lack of jurisdiction and for judgment on the pleadings. DOJ lawyers argue that Price's "nonspecific intention to film again at some point in the future is insufficient to establish standing to sue." Even if he did have standing, the government argues that the act of filming isn't actually protected speech, that it didn't happen in a public forum and that the NPS' permit and fee structure for commercial filming is content neutral. (Read the full motion here.)

On Wednesday, Price filed his own motion for judgment on the pleadings.

"Price has standing to challenge the Permit Regime's constitutionality because not only was it enforced against him, it is preventing him from engaging in specific filming at DOI-managed lands," writes attorney Robert Corn-Revere in the motion, which is posted in full below. Price had scouted locations at Yorktown and Manassas National Battlefields for a project that included a re-creation of the Saltville Massacre of Oct. 3, 1864, according to the complaint, but hasn't filmed there because of the citation he received for Crawford Road.

"The government has already enforced the Permit Regime against Price, requiring him to appear in federal court, retain counsel, and seek dismissal of the charges," writes Corn-Revere. "The government ultimately acquiesced, not on grounds the citation was improper or erroneous, but because it wanted to avoid Price's constitutional challenge. Notably, in dismissing, the criminal court expressly stated Price's remedy lies in a civil suit like this."

Corn-Revere argues that the government is trying to avoid the First Amendment by ignoring precedent that establishes there's no clear line between "the act of creating speech and the speech itself." He says the idea that filming is only facilitative of speech is "akin to arguing writing or typing can be freely regulated because they merely 'facilitate' speech and press rights."

He further argues that federal lands, specifically national parks, are traditional public forums but, even if they weren't, the permit structure is unconstitutional because it's inconsistent and unreasonable.

"Under the Permit Regime, commercial and noncommercial productions, engaged in the same activity, having the same impact, are treated differently absent any justification other than that Congress views noncommercial entities as not having 'profits' worth siphoning," writes Corn-Revere. "The First Amendment does not allow the government to raise revenue by taxing the exercise of constitutional rights, or charging fees in excess of costs of administering a legitimate regulation that governs speech."

Also on Wednesday, 10 media organizations including Getty Images, the National Press Photographers Association and the Society of Professional Journalists filed an amicus briefin support of Price.

"Amici are unaware of any court that has adopted the Governments position that the act of filming is not protected speech, or that filming is merely 'facilitative' of speech. And the government fails to cite to one," states the brief. "The Supreme Court has repeatedly held that the creation of speech is explicitly protected by the First Amendment. These protections encompass a range of conduct related to the gathering of information including photography."

The organizations also argue that NPS allowed members of the media and the general public to create videos from the exact location where Price filmed his project.

"The government opened the park up for those 'approved' individuals to engage in expressive activity without restriction but charged Mr. Price with a crime for doing the same," they argue. "Amici do not dispute that the National Park Service can charge admission fees for members of the public, including photographers and filmmakers, who seek to enter NPS parks and engage in expressive conduct. However, the government cannot require permits and impose hefty financial barriers targeted at those who plan to take photographs or engage in other expressive activities, based solely on the content of the film or the identity of the speaker."

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Indie Director Blasts Government's Argument that Filming Isn't Protected Speech - Hollywood Reporter

The Civics Project: Constitutional wall between church and state forever being tested | Opinion – Florida Today

Kevin Wagner, The Civics Project Published 11:59 a.m. ET July 10, 2020

Question: The recent U.S. Supreme Court decision on state funding for religious schools confuses me. What does the Constitution actually say about religion?

Answer: The U.S. Constitution does not say much directly. Article 6: Clause 3 states that No religious test shall ever be required as a qualification to any office or public trust under the United States.

Religion is mentioned again in the First Amendment, where we find many of the rights that we defend and debate today. The First Amendment restricts government from infringing on speech, the press, petitioning government for redress, and peaceable assembly. Those freedoms and the limitations on them are the subject of a great deal of debate and case law.

The First Amendment also speaks to two distinct issues regarding religion. First, it protects the free exercise of religion, and second it prohibits the government from establishing a religion. The second provision, often referred to as the Establishment Clause, is the basis for the concept of the separation of church and state. Courts have historically used this clause to prohibit government from favoring a particular religion, or any religion.

Kevin Wagner(Photo: Palm Beach Post)

The idea of keeping the government apart from religion has its roots in the founding. It was popularized in a letter from Thomas Jefferson to the Baptist Association of Danbury, Conn., in 1802. Jefferson wrote in part that prohibiting the state from establishing a religion would result in [b]uilding a wall of separation between Church & State.

The U.S. Supreme Court has endorsed Jeffersons wall approach to the interpretation of the Establishment Clause. In Everson v. Board of Education (1947), Justice Hugo L. Black wrote that the First Amendment was intended to erect a wall of separation between Church and State. The nations high court also recommended that the wall should be kept high and impregnable, while cautioning against even the slightest breach.

In the abstract, that can seem pretty easy, but it is not. Religious people and institutions regularly interact with government and society. What breaches the wall and what does not can be confusing. In Lemon v. Kurtzman (1971), the Supreme Court created a test to help, which requires a valid law to have a secular (non-religious) purpose, neither advance or inhibit religion, and avoid excessive government entanglement with religion. What constitutes excessive entanglement has proven hard to define, and courts have been somewhat inconsistent in their interpretations.

While the Lemon Test has proven surprisingly durable, it has been subject to significant criticism. Many current jurists, including a number of U.S. Supreme Court justices, do not favor the test or the separation doctrine. Opponents argue that Jeffersons letter is being given too much weight and significance. Opponents have also argued that the wall metaphor is an overly broad interpretation of the Establishment Clause.

The current Supreme Court has favored a more expansive reading of the Free Exercise Clause, often at the expense of the Establishment Clause. This has resulted in rulings requiring religious exemptions for generally applicable laws and regulations in areas such as healthcare and education. Concerns about the Establishment Clause have been pushed to a more subordinate position.

Kevin Wagner is a noted constitutional scholar, and political science professor at Florida Atlantic University. The answers provided do not represent the views of the university.

The professor wants to hear from you. Keep in mind that no question is too basic; but it can be too partisan. So if you have a question about how American government and politics works, send us an email at rchristie@pbpost.com.

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The Civics Project: Constitutional wall between church and state forever being tested | Opinion - Florida Today

A Fractured Supreme Court Strikes Down and Severs the TCPAs Government Debt Exemption, Leaving the Rest of the Statute Intact – JD Supra

This week, a divided Supreme Court issued a plurality opinion in Barr v. American Association of PoliticalConsultants, Inc. (Political Consultants) striking down and severing a 2015 amendment to the TCPA, which exempts government debt collection calls (government debt exemption) from the statutes general prohibition on calls to cell phones (cell phone ban). The effect of this ruling was to affirm the Fourth Circuits decision and leave the cell phone ban intact.

A majority of justices agreed that the government debt exemption violated the First Amendment but disagreed as to everything else: whether strict or intermediate scrutiny governed the First Amendment analysis, whether the government debt exemption failed that analysis and whether the severability and equal protection principles applied by the plurality constitute an appropriate remedy. In focusing on their disagreements, the Justices largely ignored the issue of political speech and the generous First Amendment protection usually afforded it.

The plurality opinion was drafted by Justice Kavanaugh, joined in full by Justices Robert and Alito and in part by Justice Thomas. Kavanaugh began by offering this choice observation: Americans passionately disagree about many things. But they are largely united in their disdain for robocalls. (Kavanaugh Slip Op. at 1). The pluralitys perception of public opinion appears to have been the main driver of its decision and the analysis used to reach its destination (upholding the TCPA) was relatively straightforward.

First, Kavanaugh found that the government debt exemption was a content-based restriction on speech subject to strict scrutiny and that the government conceded that the exemption could not survive strict scrutiny. In doing so, Kavanaugh rejected the AAPCs argument that Congresss act of passing the government debt exemption in 2015, which permits what many consumers view as the most annoying and intrusive type of calls (debt collection), revealed that Congress did not have (or at least no longer had) a genuine concern for consumer privacy. Instead, the AAPC contended, Congress was only concerned with collecting debt owed to the federal government. But, wrote Kavanaugh, As is not infrequently the case with either/or questions, the answer to this either/or question is both. Congress is interested both in collecting government debt and protecting consumer privacy. (Kavanaugh Slip Op. at 11). Second, Kavanaugh determined that severance was appropriate under both general severability and equal treatment principles, which allow unconstitutional laws to be cured by either extending the benefits or burdens to the exempted class, sometimes referred to as leveling up or down. (Kavanaugh Slip Op. at 17-20).

Justices Sotomayor, Breyer, Ginsburg and Kagan concurred in the judgment of the plurality with respect to severability, but wrote separately to emphasize their belief that strict scrutiny did not apply. Sotomayor found that the government debt exemption failed strict scrutiny, while Beyer, Ginsburg, and Kagan found it did not and expressed concern that the plurality was using the First Amendment in a way that could threaten the workings of ordinary regulatory programs posing little threat to the free marketplace of ideas enacted as a result of that public discourse. (Breyer Slip. Op. at 4).

Justice Gorsuch agreed with the pluralitys finding that the government debt exemption was subject to strict scrutiny and violated the First Amendment but disagreed as to why. Of all of the Justices, Gorsuch was most sympathetic to the AAPCs argument that the governments consumer privacy rationale was suspect: [If] the government thinks consumer privacy interests are insufficient to overcome its interest in collecting debts, its hard to see how the government might invoke consumer privacy interests to justify banning political speech. (Gorsuch Slip Op. at 3). Gorsuch and Thomas were also most concerned with protecting speech and affording the AAPC a real remedy. Instead of severing the government debt exemption, which has the perverse effect of expanding the TCPAs restrictions on speech, Gorsuch and Thomas would have leveled up expanded the benefits afforded government debt collection speech to political speech by awarding the AAPC a novel remedy: an injunction prohibiting the TCPAs application to political speech. (Id. at 5).

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A Fractured Supreme Court Strikes Down and Severs the TCPAs Government Debt Exemption, Leaving the Rest of the Statute Intact - JD Supra


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