Editors Note: This is the first part of a two-part series on what Justice Department lawyers should do when asked to participate in politically-motivated prosecutions or investigations.

Last month, federal prosecutor Aaron Zelinsky testified before the House Judiciary Committee about why he withdrew from the Roger Stone case. Even as the country has become accustomed to the sustained push by President Trump and Attorney General William Barr to transform the Justice Department from an independent law enforcement agency into the Presidents personal law firm, Zelinksys testimony was remarkable. He recounted how he withdrew from the Stone case rather than sign on to a baldly political sentencing recommendation. In doing so, he modeled how a federal prosecutor should respond to direction from his politically appointed superiors to violate his oath of office and the Departments Principles of Federal Prosecution: by refusing to comply with and blowing the whistle on their unlawful actions.

But Zelinksy also sounded an alarm when he testified that his career supervisor in the United States Attorneys Office for the District of Columbia had encouraged him to go along with the recommendation. According to Zelinksy, his supervisor agreed that exercising political favoritism in the Stone case was unethical and wrong. Yet he advised Zelinsky that giving such favoritism to Stone was not the hill worth dying on, and that he should keep quiet rather than risk losing his job.

A Justice Department supervisor advising a line prosecutor to remain silent in the face of a politically motivated abuse of power is dangerously wrong. It is critical that the Departments career prosecutors understand that especially now.

As former career lawyers in the Justice Department, one a prosecutor in the Civil Rights Division and the other a veteran of the Office of Legal Counsel, we are concerned that the Attorney General is moving to extend his politicization of the Justice Department beyond defensive maneuvers to protect Trump and his friends from the consequences of their allegedly criminal actions which are inexcusable abuses of power in their own right to using criminal investigations and prosecutions as a weapon in the upcoming election, including by targeting Joe Biden. We are equally concerned that Barr will attempt to co-opt the Departments career prosecutors in unlawful politically motivated actions.

The signs that Barr is poised to weaponize criminal prosecutions are not subtle.

To assist our former colleagues in making what could be career-defining decisions about their own roles in these matters, the remainder of Part I of this two-part series provides an analysis of the law, ethical standards, and Justice Department policies on politically motivated prosecutions. It argues that criminal investigations tainted by political motivations and other actions (such as guilt-presuming public comments by government officials) that undermine a subjects right to a fair process or a fair trial are unconstitutional and inconsistent with the ethical obligations of Justice Department Prosecutors. Given the ongoing public interference by Barr in investigations and, in particular, the internal memo granting him exclusive authority over all potential criminal investigations of political candidates, any prosecution arising out of Durhams investigation or of Biden would meet that criteria.

Part II explains that Department prosecutors who encounter these presumptively unlawful prosecutions should respond as follows:

While the Justice Departments prosecutors are obliged to carry out the lawful agenda of its political leadership regardless of their personal views, their primary duty is honoring their own oaths to uphold the law and carrying forward the Departments mission to deliver equal and nonpartisan justice. Prosecutors cannot break the law or enable misconduct in order to do what the administration wants, and their actions will follow them long after the Trump administration has ended.

Given the degree to which this administration has already politicized the Department and tainted ongoing investigations, the Departments prosecutors should be immediately ready to follow in Zelenskys footsteps when asked to act unlawfully or ignore apparent abuses of authority. The Departments institutional integrity, the integrity of our next election, and their own reputations and future career prospects will depend on what they do.

The Laws and Rules Prohibiting Political Prosecutions

A federal prosecutors overarching duty is not that [she] shall win a case, but that justice shall be done. Berger v. United States. A civil servants oath of office likewise requires her to support and defend the Constitution of the United States. Federal prosecutors are thus much more than lawyers for a party to a dispute. As representatives of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, they are the guardians of the constitutional and legal rights of everyone who crosses their paths, and of our constitutional system of administering justice.

The Constitution, the Justice Departments Principles of Federal Prosecution, and the ethical standards governing the conduct of prosecutors together prohibit a prosecutor from pursuing an investigation or prosecution that is or even appears to be politically motivated, or that violates the accuseds right to fundamental fairness in the administration of justice.

Article II of the Constitution

Article II sets out the powers and duties of the presidency and requires the president to oversee federal agencies and exercise federal power in the public interest. President Trump believes that the executive power found in Article II of the Constitution gives him the power to do whatever [he] wants,but he is wrong. Article II does not confer monarchical powers, but instead embodies the profound presidential obligation to take care that the laws are faithfully executed. The presidents oath, also found in Article II, likewise requires that the president faithfully execute the office. This is a fiduciary duty that prohibits the president from weaponizing the Justice Department the governments primary law enforcement agency to serve his personal interests.

On the contrary, this fiduciary duty to act faithfully requires the president to safeguard the Departments independence from political influence and to refrain from interfering in specific party enforcement matters to further the presidents own interests. The president violates this duty when he or she comments on the status of criminal investigations or the guilt or innocence of the subjects of those investigations, or directs the prosecution of particular individuals, particularly to benefit himself or herself. The Take Care Clause and the oath of office also require the president to uphold the Constitutions other provisions, namely the Bill of Rights, which in turn further limits presidential authority (as discussed below).

When a president flouts these Article II duties, it carries special significance for the Justice Departments prosecutors, who take their own oaths of office and who stand in the presidents shoes when exercising the Departments prosecutorial discretion. Indeed, the prosecutorial discretion exercised by Department attorneys, as described in its Principles of Federal Prosecution, exists by virtue of the prosecutors status as a member of the Executive Branch, and the Presidents responsibility under the Constitution to ensure that the laws of the United States be faithfully executed.

The Due Process Clause

The foundation of the American criminal justice system is due process of law, which requires law enforcement officers and prosecutors to safeguard fundamental fairness in the administration of justice that is, the presumption of innocence and a fair process by which an individual is investigated, charged, and tried. If an investigation or prosecution does not or cannot provide due process for its subjects, the Departments lawyers are duty-bound to stop it in its tracks. Among the myriad ways the government can violate due process are through vindictive uses of its law enforcement powers and through public comments on the purported guilt of a subject that impair the presumption of innocence and right to a fair trial.

A vindictive investigation or prosecution is a due process violation of the most basic sort. Bordenkircher v. Hayes. The Supreme Court has held that prosecutors cannot pursue cases out of vindictiveness, meaning that they cannot use their law enforcement powers to punish someone solely out of animus or solely from [an] exercise of a protected legal right. United States v. Goodwin. Vindictiveness can be shown through direct evidence, such as a statement by the prosecutor evidencing the vindictive motive. It can also be shown when: (1) the prosecutor harbored genuine animus toward the defendant, or was prevailed upon to bring the charges by another with animus such that the prosecutor could be considered a stalking horse, and (2) [the defendant] would not have been prosecuted except for the animus. United States v. Koh.

The denial of a trial by an impartial jury a right the Supreme Court called the most priceless safeguard for the preservation of liberty, Irvin v. Dowd also violates due process, in addition, of course, to the Sixth Amendment. Likewise, the Supreme Court has made clear that preserving the presumption of innocence is a basic component of a fair trial under our system of criminal justice. Estelle v. Williams. An investigation in which government personnel, most especially the President or the Attorney General, say or do things that compromise the subjects presumption of innocence in the eyes of a jury denies this fundamental right. Because courts must carefully guard against dilution of the principle that guilt must be established by probative evidence presented to the jury in the courtroom, id., courts can set aside indictments and verdictson due process grounds when the government improperly comments or creates publicity in a manner that prejudices the accuseds presumption of innocence, including by offering unsolicited personal views on the evidence. United States v. Young.

The Justice Department recognizes the danger of treading on due process and impartial jury rights in its media policy, which largely prohibits Department personnel from commenting on ongoing cases in order to avoid undue prejudice to the subjects of criminal investigations. No comments could be more prejudicial to a subjects due process rights than those that come from Trump himself because, as the Supreme Court has recognized, the President possesses an extraordinary power to speak to his fellow citizens and on their behalf. Trump v. Hawaii. An investigation launched against someone whom the president has already publicly denigrated and pronounced guilty, thus presumptively poisoning the prospective jury pool, would be virtually impossible to conduct in a manner that is consistent with a prosecutors duty to protect the rights of the accused to due process and a fair trial. While courts can sometimes cure prejudice by changing the venue for a trial, or through a jury selection process that removes people who have heard too much about a case, it is difficult to imagine a means of escape from the prejudicial publicity generated by the President of the United States trying a case on Twitter.

The First Amendment

Our democracy is founded on every persons right to dissent against the government and freely express and associate with others who share their political views. The First Amendment safeguards this bedrock principle by prohibiting the government from retaliating against individuals for their political views or affiliations. Heffernan v. City of Patterson, N.J. A prosecution brought in retaliation for the subjects political expression clearly violates the First Amendment. Hartman v. Moore. The Supreme Court has yet to reach the question of whether a retaliatory investigation (prior to or in lieu of filing charges) violates the First Amendment on its own, but this is a logical extension of the Courts decisions on retaliatory prosecutions. The governments use of its law enforcement powers to launch a criminal investigation to punish political expression can be as damaging as the filing of charges, especially if the investigation is publicly announced. For that reason, the majority view in the appellate courts is that retaliatory investigations do violate the First Amendment.

Justice Department Rules and Prosecutorial Ethics

Prosecutors ethical duties, which they must follow in order to maintain their law licenses, are in key respects broader than their legal duties. They require prosecutors to maintain fairness, and the appearance of fairness, in the legal system, in addition to adhering to the strict letter of the law.

Accordingly, the Justice Departments Principles of Federal Prosecution are founded on the premise that the Departments prosecution power should be exercised in service of the fair, evenhanded administration of the federal criminal laws. The federal governments Standards of Ethical Conduct for Employees of the Executive Branch also require all employees to act impartially and not give preferential treatment to any private organization or individual and to endeavor to avoid creating the appearance that they are violating the law or the ethical standards.

Taken together, the various ethical rules and standards that govern prosecutors conduct collectively prohibit prosecutors from advancing politically motivated investigations or those that appear to be politically motivated. The command to ensure fair and evenhanded justice facially conflicts with selecting defendants based on their political views or their opposition to any particular political leaderor because the President wants them to be prosecuted to advance his personal political agenda. In fact, the Departments Justice Manual specifically designates political association, activities, or belief[s] as impermissible considerations in initiating or declining criminal charges. Indeed, the principle that such considerations are improper was the basis for the Office of Inspector General recent reviewsof the handling of the 2016 investigations of the Clinton email case and the Trump campaigns role in Russian interference in the 2016 election.

The American Bar Associations (ABA) Criminal Justice Standards for the Prosecution Function likewise contain multiple provisions that counsel prosecutors not to act or appear to act based on the political views, associations, or beliefs of a subject, or their own (or those of their political superiors). These include the overarching admonition that: A prosecutor should not use . . . improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion. The ABAs standards also condemn prosecutors making, causing, authorizing, or condoning public statement[s] that the prosecutor knows or reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding or heightening public condemnation of the accused.

Compromised Prosecutions

Trump and Barrs actions toward and statements about Joe Biden and the subjects of the Durham investigation run afoul of the constitutional provisions and ethical standards governing the conduct of Justice Department lawyers outlined above. The magnitude of these violations would render nearly any potential prosecution of the targets of this conduct fatally compromised, and the Departments prosecutors should treat any such action as presumptively unlawful.

As noted above, President Trump has both demanded prosecutions of Joe Biden and the agents who participated in the 2016 Russia investigation, and repeatedly and publicly proclaimed them guilty. Barr has likewise commented on the ongoing Durham investigation multiple times and opined that its subjects have committed crimes. In addition, Trump has openly complained that the Russia investigation was politically motivated, in spite of the Justice Department Inspector Generals contrary finding, and denounced the political opinions privately expressed by some of the investigators, and even the political leanings of their family members.

With all of this in mind, any prosecutor who participates in an investigation or prosecution brought against a federal agent involved in the Russia investigation, Joe Biden, or any other perceived or actual political opponent of the President who he or the attorney general have publicly denounced, will be in serious jeopardy of violating her oath to uphold Article II, the due process clause, and the First Amendment. Likewise, any prosecution or official announcement of wrongdoing against anyone Trump and Barr have publicly impugned would likely create the appearance of impropriety under the rules and ethical standards governing the Departments prosecutors.

In sum, Attorney General Barrs politicization of the Justice Department by interfering directly in (or instigating) investigations and prosecutions in ways that favor President Trump and seek to punish his perceived opponents is prohibited by several provisions of the Constitution and the ethical norms that guide prosecutors in discharging the duties of their profession. Barr has come under sustained criticism for his actions and calls for him to face various forms of accountability, from impeachment to professional disciplinary action.

But Barr will not be alone in facing accountability if the Departments prosecutors acquiesce in or enable his efforts to pursue unconstitutional politically motivated prosecutions. As difficult as it can be to stand up to illegal conduct by the nations chief law enforcement officer and his politically appointed subordinates, the Departments career personnel must answer to the Constitution and their oaths. They are not free to be accomplices or bystanders in the face of clear assaults on the rule of law, and their duties are magnified by the role politically motivated prosecutions could play in undermining the fairness of the upcoming election.

In the next part of this two-part series, we lay out a roadmap for how prosecutors should analyze a presumptively unlawful investigation or prosecution and what they should do when faced with a request to participate in such a case.

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Politically-Motivated Prosecutions Part I: Legal Obligations and Ethical Duties of Prosecutors - Just Security

Dan Hils, Cincinnati Fraternity of Police president, speaks during a press conference called by the FOP on Monday, June 22, 2020, in Over The Rhine. (Photo: Albert Cesare / The Enquirer)

Cincinnati's police union is expected to vote Monday on whether to set in motion a change to their legal counsel and perhaps take a more assertive stance on defending officers in the public sphere.

Police union president Sgt. Dan Hils told the Enquirer Monday that meeting, like all police union meetings, will not be open to the public.

"It is clear that police are under the microscope and under fire by radical organizations that wish to do us harm, and we are all working together to ensure that we have the best representation possible," he said.

Hils said he envisions a legal strategy that potentially involvessuingthe media and organizationsif they libel or slander police.

"I believe the FOP must respond when its members are defamed or harassed or put in danger by those who wish to do us harm," Hils said.

Hils said police officers have been targeted for harassment, false accusations and doxxing by"antifa and other similar Marxist organizations assisted by left-wing media."

"Being critical of your government, including police, is a first amendment right that we protect," Hils said. "But slandering our members deserves a response."

The union already has a contract withCincinnati lawyer Steve Lazarus and his firm, Lazarus and Lewis, who have represented the police union for 31 years.

The Enquirer reported last week thatHilsis pushing the FOP to hire a new Cincinnati firm, led by Zachary Gottesman and a former city attorney, Peter Stackpole, which he says will be more aggressive.

According to that report, the union's executive board disagrees with Hils and wants to keep its current representation, a contract that Hils signed off on.

Stackpole told The Enquirer Monday: "This is a big decision and I think the police officers deserve to be heard."

However, Monday's vote will not immediately change who handles the union's legal matters.

It is expected that the membership will vote on whether tooverturn the executive board's decision and the board's decision to disqualify Stackpole and Gottesman. The membership could then move to allow a department-wide vote on its legal counsel.

According to a Facebook post by Stackpole, that vote would then be held sometime in the next 45 days. He also invited officers to meet with him prior to Monday's meeting.

The decision on legal counsel could set the tone for how the union responds to calls for police reform.

The Sentinels, a group of Black officers who for 50 years have advocatedcommunity policing through diversity, want to keep Lazarus.

In a letter to Hils for the Sentinelsshared with The Enquirer, that group's leadership saidto replace Lazarus with Gottesman is "repugnant to the Sentinels and contrary to the interest of the entire membership."

Louis Arnold, a Cincinnati police officer and president of the Sentinels association, said his members are also members of the fraternal order of police. He said they aren't opposing this action to defend Lazarus, but to oppose Gottesman.

"We're fighting because Gottesmanhas sued the Sentinels and he has sued two members of the Sentinels police association," Arnold said.

On Facebook, Stackpole said the Sentinels were added to a lawsuit only so they could be a party to the result of the suit. He said Sentinels were dropped from the suit after they said they did not want to be a party.Arnold does not see it that way.

"How can he represent us when he has sued our organization and members of our organization?" Arnold said. "We don't think he can represent our members and we don't trust him to do that."

The Enquirer will update this story if information about the result of the vote is available Monday night.

[ The Enquirer is dedicated to local journalismWe cant do this work without your support. Please consider a digital subscription to Cincinnati.com. ]

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Police union expected to vote on legal representation - The Cincinnati Enquirer

Hitler had his Brown shirts and Mussolini had his Black shirts, now Donald Trump has his camouflage shirts. Thus began a statement signed by 15 distinguished interdenominational religious leaders in Chicago that I joined, including ministers, priests, and rabbis.

Comparisons to Hitler are always explosive, but the comparison is apt. Hitlers bullyboys, the statement continues, operated on the fringes or outside of the law to violently intimidate Germanys leftists and finally to exterminate Jews. Trumps bully boys are operating on the fringes or outside the law to violently intimidate Americas progressives and people of color who are exercising their First Amendment right to protest racial injustice.

Portland, Oregon, provides the model. Trump dispatched untrained, unidentified, camouflage-wearing, military-uniformed, no name-tagged bullyboys who are literally kidnapping protesters, stuffing them in unidentified vans, taking them to unknown locations without charges and against the wishes of local law enforcement officers the mayor of Portland and the governor of Oregon.

Trump has announced that he will send similar teams to Chicago, New York, Detroit, Atlanta, Baltimore and other liberal Democrat-run cities, to use his phrase. The excuse is to defend federal property. The reality is that this is a cynical re-election ploy. As Portland shows, Trumps gambit will spark a large, hostile reaction which The excuse is to defend federal property. The reality is that this is a cynical re-election ploy.

Chicago Mayor Lori Lightfoot has warned Trump not to try this in Chicago. [N]o troops, no agents that are coming in outside of our knowledge, notification, and control that are violating peoples constitutional rights. Lightfoot told CNNs Jake Tapper on Sunday during an appearance on State of the Union. We cant just allow anyone to come into Chicago, play police in our streets, in our neighborhoods, when they dont know the first thing about our city. Thats a recipe for disaster. And thats what youre seeing playing out in Portland on a nightly basis.

We support her resistance and the opposition expressed by the Pentagon, members of Congress, former U.S. military officials, historians and constitutional scholars to Trumps effrontery.

We dont need the presidents thugs in Chicago, but we would like real federal assistance. While overall crime has decreased compared to last year, violent crime particularly murders and shootings has soared.

Chicago has no gun shop and no gun range. The guns come from outside of Chicago, generally across the border from Indiana. We need common sense regulations on guns to stop the pipeline into Chicago. Trump could help because it is Republicans and the gun lobby that stands in the way.

Real federal assistance wouldnt be dispatching bullyboys to terrorize citizens exercising their First Amendment rights. It would help with jobs and training for the young. It would help with rent and mortgage forgiveness during the pandemic lockdown when people cant work. If Trump and Senate Republicans dont act immediately, literally millions will be on the verge of eviction.

We need real investment in our schools, so the savage inequality with suburban schools can be reduced. We need health care to be a right, not a privilege, and at the very least for the federal government to cover all medical expenses related to COVID-19. In a pandemic, we all have a stake in ensuring that the sick can afford to get the treatment they need.

Our sons and daughters volunteer to serve in the military. When Vladimir Putin puts a bounty on the heads of our soldiers, we need Trump to defend them, not to ignore the attack.

Trump scorns real assistance to cities. He scorns meeting with our elected leaders before announcing that he plans to dispatch his thugs to our city. And he disgraces our democracy with this cynical and dangerous campaign ploy.

Black Lives Matter Chicago and other organizations are going to court to get an injunction to prohibit Trumps agents from interfering in or otherwise policing lawful and peaceful assemblies and protests in Chicago.

The religious leaders who issued the statement pledged that if Trump dispatched bullyboys to Chicago without the permission of the mayor, they would be met with a massive, disciplined, nonviolent ... march of resistance. We will not let the president trample our Constitution, suppress our rights, and terrorize our citizens with impunity.

Follow Rev. Jesse Jackson on Twitter @RevJJackson

Send letters to letters@suntimes.com

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We dont need Trumps thugs in Chicago - Chicago Sun-Times

Art Industry News is a daily digest of the most consequential developments coming out of the art world and art market. Heres what you need to know on this Monday, July 27.

Conservative Group Sues Over New Yorks BLM Mural A conservative group, Women for America First, is suing New York mayor Bill de Blasio over the giant Black Lives Matter mural he helped paint in front of Trump Tower. After it was unveiled, the group claims they asked to paint their own mural, which would read Engaging, Inspiring, and Empowering Women to Make a Difference! in a similar size and location. By denying them, they say, the mayor is violating their First Amendment right and pandering to the Black Lives Matter movement to serve his own political ambitions. (Courthouse News)

Tenement Museum Lays Off 76 Employees The Tenement Museum in New Yorks Lower East Side laid off all 71 part-time members of its education staff last weekapproximately 92 percent of the department. Hourly employees from the retail, marketing, and visitor services divisions were also let go. (Last spring, employees in these departments voted to unionize and were in the midst of negotiating their first contract.) Although the museums president, Morris Vogel, took a 99 percent pay cut when the shutdown began, the museum anticipates a 50 percent budget reduction in 2021. (Artforum)

Pace Is the Latest Gallery to Lay Off Staff Pace Gallery laid off a portion of its furloughed employees on Thursday, citing the economic situation caused by the global pandemic. Around 20 staff members were let go, including senior director Simon Preston, the New York dealer who joined Pace last year after shuttering his own gallery. This decision was taken after every other measure to ensure we are prepared for an extended period of financial uncertainty and to protect as many jobs as possible in the long-term, a spokesperson said. Pace is one of a number of top dealers making cuts: earlier this month, David Zwirner Gallery laid off nearly 40 employees, citing a projected 30 percent drop in sales. (ARTnews)

Newly Unearthed Diary Entries Reveal Francis Bacons Private Obsessions Previously unseen diary entries about the early life of British painter Francis Bacon reveal the artists fleeting fixation with Nazi culture. Taken from the journal of his cousin and confidante Diana Watson, the pageswhich have been acquired by Bacons estate and are excerpted in a new book,Inside Francis Bacondetail the artists fascination withHermann Gring and Nazi regalia. Still, the books author Martin Harrison says, he was never really a fascist sympathizer. How could he be, as a gay man? (Guardian)

Ken Griffins $100 Million Basquiat Goes on View in Chicago Jean-Michel Basquiats monumental canvas Boy and Dog in a Johnnypump(1982), which made headlines when Chicago billionaire Kenneth C. Griffin bought it privately for $100 million earlier this year, will go on view at the Art Institute of Chicago when it reopens after a four-month closure on Thursday. Griffin says the work will remain on public display for the foreseeable future. (Chicago Tribune)

Phillips Plans a Lower-Priced Contemporary Sale The second iteration of Phillipss online HEATWAVE sale, which runs through July 30, includes 75 lots priced between just 200 ($257) and 50,000 ($64,284). The lower-priced offering is part of the auction houses efforts to draw in emerging collectors. (Art Market Monitor)

Chilean Artist Lotty Rosenfeld Dies at 77 The artist is best known for installing a simple white line on a Chilean street in 1979an act that served as a revered artistic and political intervention against the countrys oppressive government. She has died at age 77, from lung cancer. (ARTnews)

California African American Museum Hires New Curators Taylor Renee Aldridge, a writer and independent curator formerly based in Detroit, has been named visual arts curator; Susan D. Anderson, the former director of public programs for the California Historical Society, will take on the role of history curator at the LA institution. (Artforum)

Adam Budak Heads to Kestner Gesellschaft The esteemed director of the National Gallery in Prague will head to HannoversKestner Gesellschaft in November. (Monopol)

Man Charged With Smuggling Syrian Mosaic A Southern California man has been charged with illegally transporting what is believed to be looted artwork from Syria. The man falsely claimed that he was importing vases and other Syrian works worth less than $3,000. Instead, authorities found a valuable 3rd or 4th century A.D. mosaic depicting the Greek demigod Heracles.(Courthouse News)

Erdoan Leads First Prayers at Converted Hagia Sophia Some 350,000 people arrived at the Hagia Sophia to join Turkish presidentRecep TayyipErdoan in the first prayers at the historic site since it was converted back into a functioning mosque earlier this month. Christian mosaics were covered with curtains for the duration of the prayers. (Guardian)

The Metropolitan Museum of Art Has a Duck Fam Local fauna are taking up residence in the empty Met, which remains closed to the public until the end of August. A duck has decided that the museums glorious rooftop is a good nesting spot for her and her babies. The museum is now asking the public to help name its fuzzy new friends. We assume Duckminster Fuller is already in the mix. (Instagram)

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Art Industry News: Pace Becomes the Latest Gallery to Lay Off Staff as It Enters an Extended Period of Financial Uncertainty + Other Stories - artnet...

By Noah Biesiada | July 24, 2020

Irvine Mayor Christina Shea is being sued for a violation of her constituents First Amendment rights after blocking several residents on her FaceBook page who criticized her posted opinions on the Black Lives Matter movement and defunding the police force last month.

In a since-deleted post, Shea said that she had received emails from members of Black Lives Matter asking to reduce police funding and move the money to help support homeless programs and other community issues, but that she would not support that move.

We have been named one of the Safest Cities in America for 15 years in a row and I will not agree to reduce our public safety funding especially after seeing the violence we have endured as a nation this past week, Shea said.

Later that day, Shea also posted another comment that criticized a peaceful protest outside city hall, saying they were yelling very rude comments, and that a residents car was hit by one of the protestors.

Protesters in the street blocking traffic and we are being asked to lessen public safety? Shea said.

The posts received over 150 comments with a variety of opinions, but Shea blocked several that disagreed with her post.

One of the blocked commenters was Lamar West, an Irvine resident and software designer, who has called attention to the issue from both the Thurgood Marshall Bar Association, Orange Countys only Black bar, and the law firm Baum, Hedlund, Aristei & Goldman who are representing him in the suit against Shea.

Like other educated people have mentioned its okay for you to support the movement and not defund the police but you dont want to do either, West said in his comments. I can hear the racist ancestors of yours in this post and its sickening. Enjoy your position while it lasts.

The primary argument in the case is over whether elected officials social media pages function as a public forum, and multiple legal organizations have said that if it is open to the public and used by a politician to discuss policy then it cannot be censored.

One of the cases frequently referenced by legal experts is Knight First Amendment Institute v. Trump, a case from 2018 that saw the President sued for attempting to block commenters on his personal Twitter page that he regularly uses to discuss public policy.

The ruling in the case found that Trumps decision to make the page public and use it as an official mouthpiece of his administration meant that commenters were entitled to voice their opinions in the comments.

The Knight First Amendment Institute was also one of the groups who asked Shea to unblock commenters.

Shea declined to comment, saying she had not reviewed the filing yet.

In the past, Shea has repeatedly defended her actions on the page, saying that it is her personal Facebook page and that she has a right to control what content is there, and that many of the accounts she blocked were fake.

My family goes on that page, my grandchildren do and theyre not going to be reading that stuff, Shea said in a phone call with Voice of OC last month. They were calling me racist, using obscenities, they were threatening me, and I took the post down and I was told I have every right to do that on my private page.

Karl Olson, a First Amendment and media lawyer from San Francisco, said that while social media functions as a bit of a grey area, Sheas page does follow the guidelines of a public forum.

Part of its an issue with what you can do with Facebook, and part of its a legal area, and thats why it is a grey area, Olson said. For someone to call her a racist, thats generally opinion. I think if you want to be the mayor of a city that kind of comes with the territory.

Other politicians in Orange County, including congressional candidate Greg Raths, have faced similar criticism from commenters, with renewed calls for open access to their pages.

The case is set to move to court on Aug. 24, with West filing a preliminary injunction against Shea that would force her to unblock him and other constituents for the duration of the case if approved by a judge.

Noah Biesiada is a Voice of OC Reporting Fellow. Contact him at nbiesiada@voiceofoc.org or on Twitter @NBiesiada.

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Irvine Mayor Sued Over Facebook Blocking And Deleting Of Comments - Voice of OC

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.

Theres a bit of an intellectual fistfight going on these days about free expression and we all have a stake in the outcome.

The early rounds have been going on for years: in essence, a theory that pops up periodically in history that some ideas simply are too dangerous to allow them to be voiced in public. The opponent to that theory: The longtime belief in the marketplace of ideas, where any person may advance any idea however repugnant, vile or even evil and be subject to the review, and perhaps revile, of all others.

Critics of the marketplace approach have several arguments. American critics note the amendment was adopted in 1791, carrying forward ideas about free expression that even then were centuries old, and thus see it as out of place in a modern world.

Another objection is that the internet, with its instant and global reach, makes ineffective the expected marketplace interplay of speaker and responder, through which the hope is bad ideas fail, good ideas improve and best ideas thrive.

Yet another criticism of the marketplace concept is that money, technology and power have created an elite group (or groups) in control of most meaningful communication (and perhaps content) across the web, rendering criticism, counterviews, unpopular or unconventional ideas and certainly revolutionary ones unable to reach a mass audience.

Critical race theorists believe that American jurisprudence essentially has elevated the liberty interests of the First Amendment over the equality interests of the 14th Amendment.

And finally, there is the claim that some ideas simply are too dangerous or misleading or manipulative to be allowed into the marketplace at all from race, ethnic and religious hatred to sexual exploitation and abuse to commercial messaging and political misinformation now aided and abetted by hidden algorithms and those in charge of a handful of private tech companies more intent on profits than seeking truth.

Whew. Thats a pretty strong set of arguments that some things need fixing when it comes to free expression in the early years of the 21st century. Most of us likely would agree with many, if not all of them on first glance.

Interestingly, the sides in this dispute dont automatically align along our current political fractures. Some liberals and conservatives see the web as too wide open, allowing dangerous ideas and speakers access to audiences that can be influenced; while others view the web as a tightly controlled funnel of filtered information combined with manipulation that blocks voices (either too conservative or too liberal take your pick) with a goal of shaping public opinion.

The current battle is not just over the criticisms, but over the solutions as well. Twitter and other sites gain praise and scorn for blocking some users for alleged violations of those sites terms of service, ranging from foul language to misleading health claims to personal attacks and what the sites deem deliberate misinformation. Tech firms can block, tag and take down posted content, in a bit of irony to some, because they have their own First Amendment rights as private companies.

So, some on either side of this dispute would bring government into the ring, where First Amendment freedoms would apply one side seeking exceptions to free speech protections for things such as violent content, or racist views, or demeaning portrayals of women, or LGBTQ persons; and the other combatants asking government to oversee and override those private companies decisions, in the name of protecting conservative voices they see as all-too-often excluded from public discourse.

Who are the combatants of late? In one corner, signatories to an open letter titled, A Letter on Justice and Open Debate, published July 7 in Harpers Magazine, include a number of the worlds best-known creative minds, such as J.K. Rowling, Wynton Marsalis, Gloria Steinem, Salman Rushdie and about 150 other authors, journalists, publishers and artists.

In the other corner of this particular bout are those who signed this week onto another letter published on the online commentary site The Objective which self-identifies as a place with information and views by and for historically ignored communities another group of literary, media and artists. This missive entered the fray acknowledging the fight even reaches into its signatures area, noting some could be identified only generally, usually by professional occupation and place of work, because of fears of workplace retaliation by the established communication masters for whom some work.

Their view of the Harpers letter, in a piece titled, A More Specific Letter on Justice and Open Debate explains, Nowhere in it do the signatories mention how marginalized voices have been silenced for generations in journalism, academia and publishing and the letter does not deal with the problem of power: Who has it and who does not.

To be sure, many of latest blows in this intellectual boxing match have been struck via high-concept review of the theories of human communication and in well-founded critiques of who had and has access to tools of speaking out in public news media, book publishers, broadcasters and now social media companies.

But in the early rounds, the heavyweights punched the outmoded model of the marketplace of ideas for two reasons: One, that it never worked as intended because many minority groups, however defined, were denied access to speak and be heard a stark truth that cannot be denied; and two, there is such a thing as truth, and to knowingly permit non-truth is counter-productive to society and should not be permitted.

Boil it all down and it comes to a very simple First Amendment question: Is the response to speech you consider untruthful, disgusting or misleading more speech or less speech? If the former, what do you do as, with lightning speed and wide public acceptance by the unknowing, the web is flooded with true threats to public health, hate speech from white supremacists or deliberately misleading political ads and fraudulent electioneering from world adversaries?

If the latter, who gets to be the national nanny, defining truth, excluding some voices while inviting in others and monitoring the billions of social media posts each day all while remaining nonpartisan and apolitical in todays hyper-divided nation?

Wiser minds including, with hope, most of us will need to parse those questions and more as the First Amendments five freedoms (religion, speech, press, assembly and petition) are tested in court, on the street and occasionally on the pages of online magazines.

As for me, I theorize the nations founders would chuckle at the idea that all of this is new. The mechanisms of communications were different, but the goals in 1791 were the same: The exchange of ideas for a better life for us all, many at the time deemed too dangerous for society to hear ideas like all men are created equal and that democracy was favorable over monarchy.

While this fistfight is mainly staged in the mind, there are real-world examples of the cost of the fight. New York Times op-ed editor Bari Weiss resigned the other day, saying in a letter she self-published that she was hired with the goal of bringing in voices that would not otherwise appear in your pages: first-time writers, centrists, conservatives and others who would not naturally think of the Times as their home.

In leaving the paper after about three years, she said, a new consensus has emerged in the press, but perhaps especially at this paper: that truth isnt a process of collective discovery, but an orthodoxy already known to an enlightened few whose job is to inform everyone else.

Weiss concludes her resignation by noting founder Adolph Ochs 1896 statement to make of the columns of The New York Times a forum for the consideration of all questions of public importance, and to that end to invite intelligent discussion from all shades of opinion.

Ochss idea is one of the best Ive encountered, Weiss continues. And Ive always comforted myself with the notion that the best ideas win out. But ideas cannot win on their own. They need a voice. They need a hearing. Above all, they must be backed by people willing to live by them.

More of us need to make our voices heard in this latest fight over the meaning of the First Amendments 45 words, lest we see them reshaped or lost without having ever set foot in the ring.

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 [emailprotected], or follow him on Twitter at@genefac.

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FIRST FIVE: Fighting over the meaning of First Amendment freedoms - hays Post

The U.S. Armys esports team has come under fire for separate allegations of advertising fake giveaways and banning commenters who mentioned U.S. war crimes.

Streaming platform Twitch said the allegedly fake giveaways were in violation of their terms of service, and the ACLU is concerned that banning commenters prohibited free speech.

It looks like what happened was a violation of the First Amendment, ACLU staff attorney Vera Eidelman told VICE.

The Army denied such accusations, with a spokesperson saying comments regarding war crimes were meant to troll and harass the team, and that the giveaways were, in fact, real.

The Armys esports team, which began in 2018, has never had overwhelming public support. The use of popular shooter and strategy games such as Call of Duty; Counter-Strike: Global Offensive; Fortnite; Magic: the Gathering; and more to recruit gamers was seen as morally questionable by some.

On June 30, the official Army esports Twitter responded to an announcement by chat platform Discord with the text emoticon UwU and heart emojis. The emoticon is meant to display a happy anime face, and while some sections of the internet use it frequently, others find the emoticon annoying and frown upon its use.

Followers lashed out against the tweet, calling Discord pro-war and referencing incidents like Abu Ghraib. But the backlash didnt stop with Twitter.

Since early July, gamers and internet trolls have been swarming to the Armys Twitch streams and chat server on Discord to see just how quickly they can get banned for mentioning war crimes or mocking the Tweet that started it all.

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As a result of this flood of ban-seekers, the open chat room on the Armys Discord server was intentionally disabled by moderators.

Following the guidelines and policies set by Twitch, the U.S. Army eSports Team banned users from its account due to concern over posted content and website links that were considered harassing and degrading in nature, U.S. Army Recruiting Command spokesperson Lisa Ferguson told Military Times.

The Army encourages those who are genuinely concerned about war crimes to use FOIA reading rooms, elected representatives, and public forums with military leaders to engage in dialogue about war crimes, Ferguson said.

An ACLU tweet on July 10 called out the Army for the bans, saying: Calling out the governments war crimes isnt harassment, its speaking truth to power. And banning users who ask important questions isnt flexing, its unconstitutional.

Just when it seemed controversy over the bans might start to die down, it was alleged that the team was advertising fake giveaways of an Xbox Elite Series 2 controller, valued at more than $200.

The allegation was first reported by The Nation on July 15.

When clicked, animated giveaway advertisements in the Armys Twitch stream chat boxes led users to a recruiting web form with no mention of any giveaway, The Nation reported.

Twitch has since put an end to such advertisements.

This promotion did not comply with our Terms, and we have required them to remove it, a Twitch spokesperson told Kotaku.

USAREC spokesperson Lisa Ferguson said that the giveaways were legitimate and that the Armys esports team has given away 10 controllers, gaming stations, and chairs in the past year.

While the landing page looks generic, each giveaway has its own URL and marketing activity code that directly connects the registrant to the specific giveaway, Ferguson said.

As a result of recent events, Ferguson added that the esports team is reviewing ways to add clarity and customization to giveaways and has paused streaming to evaluate internal policies and procedures.

Read more from the original source:

Army esports team denies accusations of violating First Amendment, offering fake giveaways - ArmyTimes.com

Many public health professionals and politicians are urging or requiring citizens to wear face masks to help slow the spread of the COVID-19 virus.

Some Americans have refused, wrongly claiming mask decrees violate the Constitution. An internet search turns up dozens of examples.

Costco Karen, for instance, staged a sit-in in a Costco entrance in Hillsboro, Oregon after she refused to wear a mask, yelling I am an American I have rights.

A group called Health Freedom Idaho organized a protest against a Boise, Idaho, mask mandate. One protester said, Im afraid where this country is headed if we just all roll over and abide by control that goes against our constitutional rights.

As one protester said, The coronavirus doesnt override the Constitution.

Speaking as a constitutional law scholar, these objections are nonsense.

It is not always clear why anti-maskers think government orders requiring face coverings in public spaces or those put in place by private businesses violate their constitutional rights, much less what they think those rights are. But most of the mistaken objections fall into two categories:

Mandatory masks violate the First Amendment right to speech, assembly, and especially association and mandatory masks violate a persons constitutional right to liberty and to make decisions about their own health and bodily integrity.

Theyre not mutually exclusive claims: A lawsuit filed by four Florida residents against Palm Beach County, for example, argues that mask mandates interfere with personal liberty and constitutional rights, such as freedom of speech, right to privacy, due process, and the constitutionally protected right to enjoy and defend life and liberty. The lawsuit asks the court to issue a permanent injunction against the countys mask mandate.

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Responding to a reporter who asked why President Donald Trump appeared unconcerned about the absence of masks and social distancing at a campaign rally in Tulsa, Vice President Mike Pence said: I want to remind you again freedom of speech and the right to peaceably assemble is in the Constitution of the U.S. Even in a health crisis, the American people dont forfeit our constitutional rights.

The First Amendment protects freedom of speech, press, petition, assembly and religion.

There are two reasons why mask mandates dont violate the First Amendment.

First, a mask doesnt keep you from expressing yourself. At most, it limits where and how you can speak. Constitutional law scholars and judges call these time, place, and manner restrictions. If they do not discriminate on the basis of the content of the speech, such restrictions do not violate the First Amendment. An example of a valid time, place and manner restriction would be a law that limits political campaigning within a certain distance of a voting booth.

Additionally, the First Amendment, like all liberties ensured by the Constitution, is not absolute.

All constitutional rights are subject to the goverments authority to protect the health, safety and welfare of the community. This authority is called the police power. The Supreme Court has long held that protecting public health is sufficient reason to institute measures that might otherwise violate the First Amendment or other provisions in the Bill of Rights. In 1944, in the case of Prince v. Massachusetts, for example, the Supreme Court upheld a law that prohibited parents from using their children to distribute religious pamphlets on public streets.

Some anti-maskers object that masks violate the right to liberty.

The right to liberty, including the right to make choices about ones health and body, is essentially a constitutional principle of individual autonomy, neatly summarized as My body, my choice.

The 1905 case of Jacobsen v. Massachusetts shows why mask mandates dont violate any constitutional right to privacy or health or bodily integrity. In that case, the Supreme Court upheld a smallpox vaccination requirement in Cambridge, Massachusetts.

The court said that the vaccination requirement did not violate Jacobsens right to liberty or the inherent right of every freeman to care for his own body and health in such way as to him seems best.

As the court wrote, There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. In a 1995 New York case, a state court held that an individual with active tuberculosis could be forcibly detained in a hospital for appropriate medical treatment.

Even if you assume that mask mandates infringe upon what the Supreme Court calls fundamental rights, or rights that the court has called the very essence of a scheme of ordered liberty, it has consistently ruled states can act if the restrictions advance a compelling state interest and do so in the least restrictive manner.

As the Jacobsen ruling and the doctrine of time, place and manner make clear, the protection of all constitutional liberties rides upon certain necessary but rarely examined assumptions about communal and public life.

One is that constitutional rights whether to liberty, speech, assembly, freedom of movement or autonomy are held on several conditions. The most basic and important of these conditions is that our exercise of rights must not endanger others (and in so doing violate their rights) or the public welfare. This is simply another version of the police power doctrine.

Unfortunately, a global pandemic in which a serious and deadly communicable disease can be transmitted by asymptomatic carriers upsets that background and justifies a wide range of reasonable restrictions on our liberties. Believing otherwise makes the Constitution a suicide pact and not just metaphorically.

See original here:

The Constitution doesn't have a problem with mask mandates - The Conversation US

Journal-Courier staff, dbauer@myjournalcourier.com

No shirt, no shoes, no service.

No one would be surprised to see such a sign posted on the door of a business, especially one near a spot where lots of folks might routinely be barefoot and shirtless a beach, for example.

For the most part, people dont flip out over the injustice of it all. They put on a shirt and shoes, or they dont go into the store.

But these days, with the coronavirus pandemic raging across the land, theres a small but wildly vocal contingent who view mandates requiring the wearing of masks as some sort of a government plot, an infringement of their rights as Americans.

Theres a word for this sort of thinking: Hooey.

In America, we cherish our liberties. Always have, and always will. But they arent limitless. Never have been, and never will be.

The First Amendment to our Constitution, among other things, prohibits the federal government from silencing the citizenry. It reads, in part: Congress shall make no law abridging the freedom of speech. The protections, of course, concern the rights of individuals in relation to their government.

You dont have a First Amendment right to stand up on your desk at work and declare loudly that your boss is a complete idiot. You can try it, if you feel so inclined, but dont be surprised when your boss exercises the right as your employer and shows you the door. In the same way, you dont have the right, as a free individual in a free society, to march barefoot into a beachside restaurant and demand service the rules be damned. Most people understand this, of course, but some get short-circuited when it comes to masks.

Thankfully, the nations largest retailers have stepped up their game by requiring that masks be worn in all of their stores without exception. Those who dont like it dont have to shop at Costco or Walmart or Target or CVS Health or Walgreens or Lowes or Home Depot.

With increasing evidence that masks are effective in cutting the transmission of the coronavirus that causes COVID-19, there ought not be any arguments against wearing masks.

Though some havent yet gotten the message, they will next time they head for a store.

The Republican, Massachusetts

Read the original here:

Editorial: Retailers doing right thing with mask mandates - Alton Telegraph

July 26, 2020, 4:08 PM

6 min read

New Mexico Gov. Michelle Lujan Grisham said she might be willing to work with federal officers to combat crime in the state if they are cooperative with local efforts, but cautioned that protecting the First Amendment rights of New Mexico's residents remains a focus.

"If we are cooperatively working to address violent crime and gun violence -- absolutely," she told ABC News Chief Anchor George Stephanopoulos on "This Week" Sunday. "If we're going to try to incentivize unrest than that's something all together different."

Lujan Grisham said that New Mexico requested federal agents to assist with police and crime investigations earlier in the administration and was not provided with funding.

"So the timing of their efforts remains to be a bit suspect," Lujan Grisham said.

On Wednesday, President Donald Trump announced that he would be surging federal agents into certain American cities as part of "Operation Legend," a federal effort to combat violent crime. The initiative was first announced by Attorney General William Barr in an exclusive interview with ABC News earlier this month.

Trump said federal forces would be sent to cities including Albuquerque, New Mexico, as part of the new effort.

Rep. Michelle Lujan Grisham speaks during a news conference on immigration to condemn the Trump Administration's "zero tolerance" immigration policy, outside the US Capitol in Washington, June 13, 2018.

While Trump and Barr have said that federal agents will focus on working with existing forces to assist in investigations of illegal gun sales and other crimes, some mayors and other state leaders have expressed concern that the deployment of federal agents could be seen as an occupation and have a chilling effect on protests.

On "This Week," the governor was also asked by Stephanopoulos to respond to recent Trump campaign advertisements and political attacks suggesting that America will be made unsafe due to efforts by former Vice President Joe Biden and other Democrats to "defund the police." Biden himself has stated that he does not support those initiatives.

Lujan Grisham told Stephanopoulos that these attacks are ill-conceived and said they are part of Trump's effort to divert attention away from his administration as the election nears.

"It is really about stoking fear ... and there isn't anything else you could point to 100 days out where you've succeeded," Lujan Grisham said. "We are seeing a failure in leadership, so let's go to making people fearful."

Lujan Grisham also slammed the administration for their failure to lead on combating the novel coronavirus as cases rise in New Mexico. She acknowledged that the number of cases were "way too high" when challenged by Stephanopoulos about whether it was time to do more to slow the spread in her state, but argued that New Mexico wasn't immune to what was happening elsewhere in the country.

"What's going on around the country affects everyone in the country ... there is no national strategy," she said.

She also called Trump's response "the worst abdication of a national response and responsibility to protect Americans" she had ever seen in her career.

Lujan Grisham has gained attention as a contender to join Biden as a running mate on the presidential ticket. When asked by Stephanopoulos about whether she'd been vetted to join the campaign as his vice president, she declined to answer, but acknowledged she has spoken with his team before.

"I have only been in touch with the campaign. And while it's incredibly flattering, I have got a full-time job right here, right now," she said.

See original here:

Gov. Michelle Lujan Grisham says shed be willing to work with federal officers but timing is suspect - ABC News

There really wasnt any doubt about the right decision for me to take, de Havilland would recall. One of the nice things I thought was, If I do win, other actors, feeling frustration such as I feel, will not have to endure that. Theyll take the suspension, without pay, of course, but knowing they will not have to serve that time again. In fact, prominent stars like Jimmy Stewart and Clark Gable, whose contracts had been extended because of service in World War II, promptly took advantage of the de Havilland rule, as it came to be known, to forge lucrative freelance careers. In the decades since, entertainers as diverse as Johnny Carson, Courtney Love, Melissa Manchester, and Jared Leto have also invoked the ruling, in contexts from television-talk-show obligations to multimillion-dollar recording contracts.

As for de Havilland, after two years without work, she struck out for Paramount Pictures and 20th Century Fox and soon enough won her two Oscars, for To Each His Own (1946) and The Heiress (1949), while also making a harrowing impression as the victim of a nervous breakdown confined to an asylum in The Snake Pit (1948). But as the 1950s dawned, de Havilland never quite regained her former stardom, and in 1952, she forsook Hollywood for Paris and a marriage to Pierre Galante, the editor of Paris Match magazine. She continued to make occasional appearances in both film and television until 1988, when she played her last role, in The Woman He Loved, a TV movie about the abdication of King Edward VIII.

In later years, de Havilland recounted her adventures with the same kind of sly wit that had impelled her to tell Hal Kern, Gone With the Winds film editor, that she could do a better job of retching in the climactic first-act finale than Vivien Leigh, who played Scarlett OHara and didnt think vomiting was ladylike. (Kern agreed, and its de Havillands desperate sounds that appear on the finished soundtrack). A postWorld War II teatime encounter in her home with a smitten Kennedy, just back from naval service in the Pacific, came to an amusing end. He was quite silent, she would say in a British newspaper interview many years later. His friend did most of the talking. He just sat there, those great big eyes staring. Then when it was time for them to leave, we walked into the hallway and he very decisively opened the doorand it was the closet, and all my old boxes of summer hats and tennis rackets fell on his head. Later, she declined a dinner invitation from Kennedy, claiming she had to study her lines, and when Kennedy spotted her dining that night at Romanoffs with the much older author Ludwig Bemelmans, he was dumbfounded. Do you think it was me walking into the closet? he asked a friend. Do you think thats what really did it?

Near the end of her life, beginning in 2017, de Havilland waged one last legal battle, this time a losing one, as she sued FX and the producer Ryan Murphy over her portrayal by Catherine Zeta-Jones in Feud: Bette and Joan, a miniseries about the rivalry between Bette Davis and Joan Crawford, in which the de Havilland character is seen reminiscing about Davis. De Havilland claimed the portrayal was an unauthorized use of her name and likeness. But a California appeals court dismissed the case on First Amendment grounds and the California and United States Supreme Courts declined to review the decision.

To the end, de Havilland remained wryly proud of her role as a champion of working actors. I suppose youd like to know how actresses of my day differ from actresses of today, she said to the American Academy of Achievement interviewer in 2006. Well, she went on, cocking an eyebrow as the hint of a smile crept into her twinkling eyes, the actresses of today are richer.

Thanks in no small part to Olivia de Havilland, they are.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

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The Unprecedented Bravery of Olivia de Havilland - The Atlantic

If a medical condition prevents you from wearing a mask, and a business employee asks about your medical condition, is that a violation the Fourth Amendment?

WASHINGTON D.C., DC QUESTION:

If a medical condition prevents someone from wearing a mask, and a business employee asks about his/her medical condition, is that a violation of that person's Fourth Amendment right?

Fourth Amendment of the U.S. Constitution

Erwin Chemerinsky- Dean and Professor of Law at University of California Berkeley School of Law

Robert Dinerstein- Acting Dean at American University Washington College of Law and Director of the Disability Rights Law Clinic

Several posts going around claim that a business can't legally ask you about your medical condition, because that would violate the Fourth Amendment of the U.S. Constitution.

So we're verifying if the Fourth Amendment bans a private business from asking about medical conditions.

Our Verify researchers contacted Erwin Chemerinsky with Berkeley School of Law and Robert Dinerstein with American University's Washington College of Law and their Disability Rights Law Clinic.

Boiled down,the Fourth Amendment is your right to privacy, and protects a person against unreasonable searches and seizures.

The Fourth Amendment only applies to the government, just like the First Amendment with regard to freedom of speech only limits what the government can do," Chemerinsky said. "The Constitution is meant to limit government action, and it doesn't restrict what private businesses or private universities or private entities can do."

Chemerinsky also said that simply asking a personal question is not considered a search.

Robert Dinerstein agreed.

"The Fourth Amendment really has no applicability here," he said. "The relevant law is the Americans with Disabilities Act."

So we can Verify, experts said the Fourth Amendment has nothing to do with wearing a mask at a business.

Under the Americans with Disabilities Act, it's illegal to discriminate against a person because of a disability. So in a situation where someone says they can't wear a mask because of a medical condition, Dinerstein suggests taking them at their word and offering a reasonable accommodation.

You should take the person at his or her word at that point, I think, and it's a whole lot easier and less intrusive, Dinerstein said. Who walks around with medical documentation when you want to go to the grocery store?

Continued here:

VERIFY: The Fourth Amendment has nothing to do with wearing masks at a grocery store - WUSA9.com

Please let me, friends, thank you in advance for reading todays column. Your indulgence is not unappreciated.

You see, Ive written this, and versions of it, many, many times in my head. Even if I should get it right, I know there will be those who dont agree, who perhaps take issue with my assertions.

To them I would say, I respect your right to disagree. And I really do.

One of the glories of the form of government that was bequeathed us by our founders was the marvelous notion that we are allowed, even encouraged, to not only disagree, but to freely express such sentiments without fear of a government intervention, or worse. There are those who dont acknowledge this.

The First Amendment. To think there are, have always been, millions of human beings who are not now, have never, been permitted freedom of speech. Think of that, my fellow Americans, the next time someone, or some group, exercises their First Amendment rights by speech and or assembly with a viewpoint you oppose.

For those, however, who elect to use such protest as an excuse for vandalism, destruction of property, looting, please know that I abhor their actions, and believe they should be subject to those laws that prohibit such conduct. They are a minority, but do an injustice to those whose protests should be heard.

Back to my original intent regarding todays column. Here goes:

When Abraham Lincoln was assassinated, there were those in our land (two countries) at the time, who rejoiced.

You know who they were, and if you had to apply one of the now two much-used, over-used, political labels of our time, you know which would apply.

When Franklin Delano Roosevelt died, there were those in our land who were not saddened. You know who.

Eleanor Roosevelt was greatly admired throughout much of the world (this is not hyberpole) during her lifetime. There were those in our land, however, who despised her. You know who.

When John Fitzgerald Kennedy was assassinated, there were those in our land who were pleased. You know who.

When Martin Luther King Jr. was assassinated, there were those in our land who thought he got what was coming to him. You know who.

When Robert (Bobby) Francis Kennedy was assassinated, there were those in our land who were not displeased. You know who.

Referencing those two political labels further, consider the following:

Who opposed the abolition of slavery? You know who.

Who opposed setting aside portions of our wilderness lands so as to preserve them in perpetuity? You know who.

Who opposed splitting up the monopolistic enterprises of the Robber Barons? You know who.

Who opposed establishing child labor laws? You know who.

Who opposed setting minimum wage requirements? You know who.

Who opposed limits on workers hours? You know who.

Who opposed Womens Suffrage? You know who.

Who opposed unions? You know who.

Who opposed programs such as Social Security, Medicare and Medicaid? You know who.

Who opposed desegregation of our military? You know who.

Who opposes environmental/conservation safeguards? You know who.

Who opposed the Civil Rights Act? You know who.

Who opposed the Voting Rights Act? You know who.

Who opposed racial integration? You know who.

Who opposed/opposes making it easier to vote? You know who.

Who opposed/opposes strengthening gun safety requirements? You know who.

And who have the opposers consistently blamed at one time or another for all these things they have found so objectionable? The media the government the intellectuals the liberals the blacks (there was a time when another word was commonly used) the Jews

Why, there was another country that once had those who used such despicable tactics to come to power in Europe in the 1930s. We know how that came out, dont we?

Perhaps most recent, who opposes mandatory wearing of masks during this pandemic? You know who.

Now, in closing (bet youre glad to read that) let me assert that there are those who fall into the opposers column, who dont buy into all of such a negative, anti-progressive philosophy.

And, conversely, there are some who are on the other side who do not espouse and fully support some of their agenda as well.

If you made it here to the end, thanks for sticking with me. Perhaps more important, as I wrote near the beginning of this much too lengthy expository exercise, if you disagree in full or in part with anything Ive written, I respect your right to do so.

If you agree in full or in part with anything Ive written, well, then you know your history.

Should you choose to meet me here again next week, Ill look forward to it.

Peace.

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Write Again ... And you know who - Washington Daily News - thewashingtondailynews.com

How The First Amendment Can Fight BLM Messages, Rosewood City Removes Street Art After Receiving Demand

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Q2 2020 hedge fund letters, conferences and more

WASHINGTON, D.C. (July 22, 2020) - Many cities have permitted supporters of Black Lives Matter [BLM] and related causes to post messages supporting their views, but those who think there should be some balance may have a new weapon.

In 2016, Warren Buffett made what has turned out to be a very astute and well-timed investment decision. The Oracle of Omaha decided to invest $1 billion of Berkshire Hathaway's capital on nearly 10 million worth of shares in Apple during the first quarter of the year. If youre looking for value stocks, and exclusive Read More

Although Rosewood City in California had permitted a group to paint the words "BLACK LIVES MATTER" on a city street, they ordered the words removed just after receiving a request from an attorney to be able to paint the words "MAGA 2020" on the same stretch of street, or nearby.

Although the City provided another explanation for suddenly agreeing to remove the BLM message, and pledged that "no further art installation will be authorized on the City's streets," it's more likely that the City realized that it cannot constitutionally permit one group to post a message, and deny that same privilege to another group with another message, says public interest law professor John Banzhaf, whose similar complaint forced radio and TV stations to balance cigarette commercials with antismoking messages, and led to the ban on cigarette commercials.

The City claimed that it ordered the removal of the BLM words because"staff is concerned about public safety issues that may arise from painting murals on its public streets, which could result in driver confusion and traffic accidents," but the timing makes it more likely that the removal was prompted by a fear of a law suit for violating the First Amendment, says Banzhaf.

Professor Banzhaf explained that streets, sidewalks, and parks have traditionally been classified as "public forums" (or "open forums") where, under the First Amendment, speech (including signs) cannot be restricted based upon their content or meaning.

So, while the government can impose content-neutral - commonly known as "time, place, and manner" - restrictions on free speech activities in public forums, it cannot constitutionally permit "Black Lives Matter" and prohibit "MAGA 2020," anymore than it could permit the words "Pro Life" and refuse "Pro Choice," or OK "Yes Israel" but nix "OK Palestine" or "No Israel," says Banzhaf. who has testified as a First Amendment expert before a congressional committee.

Thus those who oppose the message or viewpoint convened by "BLM" or simply think there should be some balance to the messages displayed on city property, can fight back by demanding the right, under the First Amendment, to pose a contrasting message, suggests Banzhaf.

In many cases the result may be, as in Redwood City, that the BLM message will be removed or, in some cases, messages expressing a different viewpoint will be posted by other groups or individuals, suggests Banzhaf.

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How The First Amendment Can Fight BLM Messages - ValueWalk

Published: 7/24/2020 4:47:58 PM

Jay Fleitmans Securing liberty for all (July 7) is plagued by bias and important omissions. If we are to distill his message to its essence, the gist of his column seems to be be proud of our country and look on the bright side.

This strikes me as particularly tone-deaf during our pandemic, economic recession, police violence and systemic racism, and climate emergency. Yes, there is a nod to the decimation of the indigenous native population and slavery, which he refers to as great blots in American history but no recognition that social injustice and racism is not just a relic of the past, but institutionalized into the fabric of our current society.

In reviewing our tumultuous past, he highlights anarchist bombings, labor unrest and communist subversion as notable threats to our democracy, but neglects to mention that the McCarthy era was a much greater threat to our democracy than any communist subversion.

For a person who claims to be a defender of the Constitution and the Bill of Rights including the First Amendment he does not explicitly reject Trump repeatedly attacking a free press and labeling the news media as the enemy of the people.

As a student of history, is he not aware that Hitler and Stalin used the same terms to muzzle dissenting opinions and criminalize criticism of their regimes? While he presumably celebrates the right to peaceably assemble, he portrays protesters as rioters and looters, even though the vast majority were peaceful when exercising their First Amendment rights.

I, for one, am quite relieved that Fleitman is not teaching U.S. history to our students in our public schools as he would present a sanitized version of our history. I believe that the greatest threat to our democracy and our national security is President Trump. In accepting and encouraging help form foreign powers to help him steal the election, Trump showed and continues to show disdain for our Constitution and our electoral process.

Those who do not stand up to would-be dictators who threaten our democracy are complicit in undermining democratic values and the rule of law and will be judged harshly by history.

David Arbeitman

Florence

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David Arbeitman: Columnist provides sanitized version of history - GazetteNET

Amicus brief filed by the Reporters Committee for Freedom of the Press and 32 media organizations

Court: U.S. Court of Appeals for the District of Columbia Circuit

Date Filed: July 23, 2020

Background: In 2018, the Committee to Protect Journalists and the Knight First Amendment Institute separately submitted Freedom of Information Act requests to five federal agencies related to the Saudi Arabian governments execution of journalist Jamal Khashoggi.

The two organizations sought records about the duty to warn a person about a known threat, under Intelligence Community Directive 191, and specifically about the duty to warn Khashoggi prior to his murder.

After all of the agencies failed to respond to the FOIA requests, the Knight Institute filed a lawsuit, which CPJ joined. During litigation, each of the agencies except the State Department responded to the request by invoking the Glomar doctrine, claiming that acknowledging the existence or non-existence of documents responsive to the requests would compromise national security. Subsequently, the Knight Institute voluntarily dismissed its claims, leaving CPJ as the sole plaintiff. The U.S. District Court for the District of Columbia upheld the Glomar responses, granting summary judgment for the government.

CPJ then appealed to the U.S. Court of Appeals for the District of Columbia Circuit.

Our Position: The D.C. Circuit should reverse the district courts decision that the intelligence agencies adequately justified their Glomar responses to the FOIA requests.

Quote: Given the unbridled growth of Glomar responses across federal agencies, the pernicious way in which overclassification of documents interacts with the Glomar doctrine, and the press freedoms implicated by the records at issue, district courts should be required to apply a heightened standard of proof in this case and others like it would bring the doctrine back in line with the language and purpose of the [Freedom of Information] Act.

Related: In 2019, a D.C. district court ruled that the FBI could not invoke the Glomar doctrine in response to a FOIA request about the agencys impersonation of documentary filmmakers. The Reporters Committee filed suit after the agency invoked the doctrine to avoid searching for records related to agents impersonation of a documentary film crew to investigate Nevada rancher Cliven Bundy and his followers after a 2014 armed standoff between Bundy and the U.S. Bureau of Land Management.

In 2016, a New York appeals court allowed the New York City Police Department to invoke the Glomar doctrine in response to a FOIA request about the departments surveillance of two Muslim men. The Reporters Committee and 20 media organizations submitted a friend-of-the-court brief in the case, arguing that the doctrine cannot be invoked by a state.

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RCFP supports fight for records related to Jamal Khashoggi killing - Reporters Committee for Freedom of the Press

August 26 is the 100th anniversary of women in the United States achieving the right to vote in federal elections.

That is the date the 19th Amendment to the U.S. Constitution was ratified, prohibiting denial of the right to vote on the basis of sex, and August 26 is celebrated yearly as Womens Equality Day. Before the 19th Amendment, women could vote only in some state elections, including New York beginning in 1918.

August 1920 is often described as when women were given the vote. Characterizing this as a gift could not be farther from the truth. Women fought for more than 70 years to gain this fundamental right. They gave speeches, signed petitions, organized, lobbied, marched in parades with tens of thousands of male and female supporters, picketed the White House, and went to jail.

Yes, at least 168 women were jailed in 1917-19 because they silently stood outside President Woodrow Wilsons White House holding banners. Some simply said: Mr. President, How Long Must Women Wait for Liberty? Others were more political. No one had picketed the White House before the women suffragists did so; now it is common to express First Amendment rights there.

The little I learned about President Wilson in my school years gave me the impression that he was an intellectual who had been Princetons president, an isolationist who did not want to bring the United States into World War I, and an idealist who founded the unsuccessful League of Nations after that war. More recently, I have learned that he forced black employees out of the federal civil service, and refused for years to support passage of a constitutional amendment expanding the right to vote to women. Instead, he sought to silence and remove the picketers who sought his endorsement.

The first Womans Rights Convention was in 1848, in Seneca Falls, New York. Among other declarations, it called for women to have the right to vote. At the time, this seemed extremely far-fetched to some. For years thereafter, many efforts were made to have the law recognize women as voters.

In the 1872 presidential election, Susan B. Anthony and 14 other women actually voted in Rochester, New York, being permitted to do so by the local officials. The women who voted and the election inspectors who allowed it were all arrested on federal warrants. They were prosecuted, tried and convicted. A $100 fine was imposed on the illegal voters, which they refused to pay. Three election inspectors were jailed, until President Ulysses S. Grant pardoned them after a month.

In 1875, the United States Supreme Court ruled in a Missouri case that women had no federal right to vote under the U.S. Constitution, even when their state granted it. As western territories became states, several included women as voters. The first was Wyoming in 1869, then Utah 1870, Colorado 1893, and Idaho 1896.

Along with efforts to have states extend the right to vote, a U.S. Constitutional Amendment was introduced. By 1885, the Grange, a farmers organization, supported womens suffrage; in 1886, the Womens Christian Temperance Union sent a petition to Congress with 200,000 signatures. Even so, Congress voted against such an amendment in 1887. Gradually, more and more states permitted women to vote, but there was still opposition. In 1915, suffrage bills were defeated in Massachusetts, New Jersey, New York, and Pennsylvania, and the US Congress again voted against the woman suffrage amendment.

Both men and women made efforts to change this on multiple fronts. Finally, in 1917, New York voters authorized women to vote. The White House picket lines started in January 1917, with the goal of convincing President Wilson to support the 19th Amendment. It took him two more years, but he finally did so. The presidential election of 1920 was the first one that women could vote in.

Although many assumed that women who could vote could also serve on juries, that did not necessarily follow. Women were not regularly allowed on juries nationwide until 1968. Some states still had optional jury service for women, instead of it being automatic, as it was with men, until the Supreme Court ruled against that practice in 1979.

______________

Resource

The Fight for Womens Suffrage . . . and What They Never Told Us! http://youtu.be/rmAWkijpdr4 a slideshow of old photographs and articles prepared by Penelope Clute

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The Law and You: Women's right to vote hard fought for - Plattsburgh Press Republican

The Department of Justice (DOJ) recently outlined proposed reforms to Section 230 of the Communications Decency Act of 1996.[1] Section 230 has been in place since the early days of the Internet and protects online platforms from liability for certain third-party posts. It has recently become a point of contention between Big Tech and the Trump Administration. Recently, a presidential tweet was labeled with a fact-checking message that described the content as unsubstantiated.[2] The President claimed the label was intended to chill his rights under the First Amendment and subsequently signed the Executive Order on Preventing Online Censorship, calling for review and clarification of the scope of Section 230. The Executive Order also calls on the Secretary of Commerce and the Attorney General to engage in rule-making with the Federal Communications Commission to clarify when a tech company could be deemed to be taking part in not taken in good faith.[3] Additionally, the Order encouraged the Federal Trade Commission to investigate unfair or deceptive acts or practices committed by online platforms.

How did this relatively small piece of legislation become the center of a heated debate?

By way of background, Section 230 shields websites from legal liability for posts, including comments, images, and videos, of third-party users. At the time this legislation was passed, the Internet was vastly different from what it is today. In the 90s, as the tech world was beginning to grow, Congress sought to encourage that growth through statutory protections. Section 230 provides websites with immunity for posts left by users, and allows for Good Samaritan protection from civil lawsuits if websites remove or moderate posts that they consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.[4] This way, websites can still clean up posted content without having to worry about being targeted via lawsuits for choosing to police and self-regulate their own domains, so long as they do so in good faith.

Section 230 allows platforms to be available to all users to share, gather, and disseminate information. Websites, especially those with enormous platforms, host millions upon millions of individual posts every single day. Even with dedicated moderators and advanced algorithms in place, it is a huge undertaking to examine every single post to determine whether it is illegal or inappropriate; and even with a robust procedure in place, it is hardly fail-safe. But there is growing concern about who gets the final say about what is considered inappropriate and when it should be revised, removed, or labeled. Section 230 has become a flashpoint and raises complex First Amendment, online safety, and competition considerations.

The Executive Order alone might not seem like it has teeth, unless Congress agrees with the President and passes legislation that repeals or amends Section 230. But the rule-making prompted by the Executive Order could shift interpretation of the law, calling into doubt the wide protections enjoyed by tech companies. Moreover, Attorney General William Barr has been vocal about his concerns regarding Section 230 and its protections, prompting the DOJ to seriously examine the law to propose a way forward.

In February, the DOJ hosted a one-day workshop called Section 230 Nurturing Innovation or Fostering Unaccountability? inviting both public and private stakeholders to confer about the laws transformation since its enactment to the present day and whether it needs to be modified to account for this new era of Big Tech. The DOJ states that it also met with companies that attended or indicated interest in talking about Section 230, although it is unclear which companies that included.

Last month, following its 10-month review of the law, the DOJ released its recommendations for Section 230 reform.[5] Rather than seek a complete repeal of the legislation, the DOJ identified four key categories where reform should take place in order to realign the scope of Section 230 with the realities of the modern internet.[6] These four areas are (1) Incentivizing Online Platforms to Address Illicit Content, (2) Clarifying Federal Government Enforcement Capabilities to Address Unlawful Content, (3) Promoting Competition, and (4) Promoting Open Discourse and Greater Transparency.[7]

The first category seeks to strip away protection from those who purposely facilitate or solicit unlawful content and allows for civil lawsuits involving child abuse, terrorism, and cyber-stalking to proceed, thus incentivizing websites to be proactive about tracking and removing illegal content. The second category proposes more government intervention through civil enforcement actions. The third category seeks to clarify that companies cannot use Section 230 to protect themselves from antitrust actions where liability is based on harm to competition, not on third-party speech.[8] Finally, the fourth category is aimed at refining the language of Section 230, including an addition of good faith.

Some argue that Section 230 should be updated to address some of the potential dangers of the growing Internet that were not present in 1996. If this effort gains more traction, many view it as imperative that tech representatives be involved in the conversation because they are the experts in devising the algorithms and training the moderators to track down illegal and harmful content. A companys role and responsibility to police, remove, and/or label content may implicate complex First Amendment concerns. There may not be a one-size-fits-all approach to updating Section 230 to address all posted content in all types of forums. Many will be watching to see whether there will be changes to this law that has helped fuel online growth.

[1] https://www.justice.gov/opa/pr/justice-department-issues-recommendations-section-230-reform.%5B2%5D Twitter Safety (Twitter Safety). We added a label to two @realDonaldTrump Tweets about Californias vote-by-mail plans as part of our efforts to enforce our civic integrity policy. We believe those Tweets could confuse voters about what they need to do to receive a ballot and participate in the election process. May 27, 2020, 10:54 p.m. tweet.[3] Exec. Order on Preventing Online Censorship (May 28, 2020), available at https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/.%5B4%5D 47 U.S.C. 230(c)(2)(A).[5] https://www.justice.gov/opa/pr/justice-department-issues-recommendations-section-230-reform.%5B6%5D https://www.justice.gov/ag/department-justice-s-review-section-230-communications-decency-act-1996.%5B7%5D https://www.justice.gov/file/1286331/download.%5B8%5D Id. at p. 4.

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DOJ Takes a Stance on Section 230 Reform that Could Place Additional Burdens on Online Platforms - JD Supra

Gene Policinski. Photo courtesy the Freedom Forum

By GENE POLICINSKI

Theres a bit of an intellectual fistfight going on these days about free expression and we all have a stake in the outcome.

The early rounds have been going on for years: in essence, a theory that pops up periodically in history that some ideas simply are too dangerous to allow them to be voiced in public. The opponent to that theory: The longtime belief in the marketplace of ideas, where any person may advance any idea however repugnant, vile or even evil and be subject to the review, and perhaps revile, of all others.

Critics of the marketplace approach have several arguments. American critics note the amendment was adopted in 1791, carrying forward ideas about free expression that even then were centuries old, and thus see it as out of place in a modern world.

Another objection is that the internet, with its instant and global reach, makes ineffective the expected marketplace interplay of speaker and responder, through which the hope is bad ideas fail, good ideas improve and best ideas thrive.

Yet another criticism of the marketplace concept is that money, technology and power have created an elite group (or groups) in control of most meaningful communication (and perhaps content) across the web, rendering criticism, counterviews, unpopular or unconventional ideas and certainly revolutionary ones unable to reach a mass audience.

Critical race theorists believe that American jurisprudence essentially has elevated the liberty interests of the First Amendment over the equality interests of the 14thAmendment.

And finally, there is the claim that some ideas simply are too dangerous or misleading or manipulative to be allowed into the marketplace at all from race, ethnic and religious hatred to sexual exploitation and abuse to commercial messaging and political misinformation now aided and abetted by hidden algorithms and those in charge of a handful of private tech companies more intent on profits than seeking truth.

Whew. Thats a pretty strong set of arguments that some things need fixing when it comes to free expression in the early years of the 21stcentury. Most of us likely would agree with many, if not all of them on first glance.

Interestingly, the sides in this dispute dont automatically align along our current political fractures. Some liberals and conservatives see the web as too wide open, allowing dangerous ideas and speakers access to audiences that can be influenced; while others view the web as a tightly controlled funnel of filtered information combined with manipulation that blocks voices (either too conservative or too liberal take your pick) with a goal of shaping public opinion.

The current battle is not just over the criticisms, but over the solutions as well. Twitter and other sites gain praise and scorn for blocking some users for alleged violations of those sites terms of service, ranging from foul language to misleading health claims to personal attacks and what the sites deem deliberate misinformation. Tech firms can block, tag and take down posted content, in a bit of irony to some, because they have their own First Amendment rights as private companies.

So, some on either side of this dispute would bring government into the ring, where First Amendment freedoms would apply one side seeking exceptions to free speech protections for things such as violent content, or racist views, or demeaning portrayals of women, or LGBTQ persons; and the other combatants asking government to oversee and override those private companies decisions, in the name of protecting conservative voices they see as all-too-often excluded from public discourse.

Who are the combatants of late? In one corner, signatories to an open letter titled, A Letter on Justice and Open Debate, published July 7 inHarpers Magazine,include a number of the worlds best-known creative minds, such asJ.K. Rowling,Wynton Marsalis,Gloria Steinem,Salman Rushdieand about 150 other authors, journalists, publishers and artists.

In the other corner of this particular bout are those who signed this week onto another letter published on the online commentary site The Objective which self-identifies as a place with information and views by and for historically ignored communities another group of literary, media and artists. This missive entered the fray acknowledging the fight even reaches into its signatures area, noting some could be identified only generally, usually by professional occupation and place of work, because of fears of workplace retaliation by the established communication masters for whom some work.

Their view of theHarpersletter, in a piece titled, A More Specific Letter on Justice and Open Debate explains, Nowhere in it do the signatories mention how marginalized voices have been silenced for generations in journalism, academia and publishing and the letter does not deal with the problem of power: Who has it and who does not.

To be sure, many of latest blows in this intellectual boxing match have been struck via high-concept review of the theories of human communication and in well-founded critiques of who had and has access to tools of speaking out in public news media, book publishers, broadcasters and now social media companies.

But in the early rounds, the heavyweights punched the outmoded model of the marketplace of ideas for two reasons: One, that it never worked as intended because many minority groups, however defined, were denied access to speak and be heard a stark truth that cannot be denied; and two, there is such a thing as truth, and to knowingly permit non-truth is counter-productive to society and should not be permitted.

Boil it all down and it comes to a very simple First Amendment question: Is the response to speech you consider untruthful, disgusting or misleading more speech or less speech? If the former, what do you do as, with lightning speed and wide public acceptance by the unknowing, the web is flooded with true threats to public health, hate speech from white supremacists or deliberately misleading political ads and fraudulent electioneering from world adversaries?

If the latter, who gets to be the national nanny, defining truth, excluding some voices while inviting in others and monitoring the billions of social media posts each day all while remaining nonpartisan and apolitical in todays hyper-divided nation?

Wiser minds including, with hope, most of us will need to parse those questions and more as the First Amendments five freedoms (religion, speech, press, assembly and petition) are tested in court, on the street and occasionally on the pages of online magazines.

As for me, I theorize the nations founders would chuckle at the idea that all of this is new. The mechanisms of communications were different, but the goals in 1791 were the same: The exchange of ideas for a better life for us all, many at the time deemed too dangerous for society to hear ideas like all men are created equal and that democracy was favorable over monarchy.

While this fistfight is mainly staged in the mind, there are real-world examples of the cost of the fight.New York Timesop-ed editorBari Weissresigned the other day, saying in a letter she self-published that she was hired with the goal of bringing in voices that would not otherwise appear in your pages: first-time writers, centrists, conservatives and others who would not naturally think of theTimesas their home.

In leaving the paper after about three years, she said, a new consensus has emerged in the press, but perhaps especially at this paper: that truth isnt a process of collective discovery, but an orthodoxy already known to an enlightened few whose job is to inform everyone else.

Weiss concludes her resignation by noting founderAdolph Ochs1896 statement to make of the columns ofThe New York Timesa forum for the consideration of all questions of public importance, and to that end to invite intelligent discussion from all shades of opinion.

Ochss idea is one of the best Ive encountered, Weiss continues. And Ive always comforted myself with the notion that the best ideas win out. But ideas cannot win on their own. They need a voice. They need a hearing. Above all, they must be backed by people willing to live by them.

More of us need to make our voices heard in this latest fight over the meaning of the First Amendments 45 words, lest we see them reshaped or lost without having ever set foot in the ring.

. . .

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[emailprotected], or follow him on Twitter at@genefac.

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First 5: Fighting over the meaning of First Amendment freedoms - Salina Post

Stanley Martin, a lead organizer with Free the People Roc, an activist group thats recently been at the center of Rochesters Black Lives Matter movement, is suing Mayor Lovely Warren and the city of Rochester over the curfew enacted by the mayor on July 15. Shes joined in the suit by the Rochester chapter of the National Lawyers Guild.

In a lawsuit filed in federal court Friday, Martin and the Lawyers Guild ask the court to strike down the curfew, arguing that it violates the First Amendment right to free speech and the right to peaceably assemble. Additionally, the plaintiffs argue that because Warren implemented the order for the purpose of targeting people in Black and brown neighborhoods, it also violates the Equal Protection clause, reads the filing.

Warren ordered the curfew after a spate of violent incidents in the city. As they announced the curfew, city officials said that 20 people had been shot or stabbed over a two-week period. Warren noted that large parties preceded many of the incidents.

The mayor renewed the curfew Tuesday and has said shell continue to renew it every five days until the violence ceases.

The curfew prohibits gatherings of five or more people in public places -- including sidewalks and parks -- and 10 or more people gathered in private between the hours of 11 p.m. and 5 a.m. Anyone accused of violating the curfew can be charged with a misdemeanor.

We remain confident that the mayors order regarding public gatherings after 11 p.m. will withstand legal scrutiny, city spokesperson Justin Roj said Friday.

Free the People Roc, which has held weekly Black Lives Matter rallies in Rochester since May 30, held a protest against the curfew the day it was announced. It started at 11 p.m. in Martin Luther King Jr. Park and lasted until roughly 2 a.m., when police arrested 30 people and charged them with violating the curfew. According to the complaint, among those arrested were members of Free the People Roc and the Lawyers Guild, who were acting as legal observers.

Martin and the Lawyers Guild claim that those arrests violated their free speech rights. Theyre asking the court to order the city to refrain from interfering or otherwise policing lawful and peaceful assemblies and protests in the city of Rochester, to cease enforcement of the curfew, and for officers to refrain from covering their names and badge numbers when they are on duty, as well as to provide the name and badge number upon request.

The lawsuit alleges that when Katherine Adamides, a legal observer with the Lawyers Guild, tried to write down the names of 19 police officers lined up at the scene of the protest, 14 of them covered their names with tape, their hands, or their arms. Three of the officers, it claims, covered their badge numbers.

Jeremy Moule is CITY's news editor. He can be reached atjmoule@rochester-citynews.com.

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Warren, city of Rochester sued over curfew - WXXI News