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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kevin Wagner(Photo: Palm Beach Post)

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

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

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

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

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

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

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

Read or Share this story: https://www.floridatoday.com/story/opinion/2020/07/10/wall-between-church-and-state-forever-being-tested-opinion/5413787002/

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

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

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

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

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

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

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

Takeaways and stray observations:

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

As the cancel culture trend continues to hit college campuses, Campus Reform has reported on a number of cases where colleges and universities have sanctioned professors, and in one case even expelled a student, for posts he made on social media.

Campus Reform Digital Reporter Eduardo Neret recently asked students and young Americans about their thoughts on schools monitoring the social media of students and faculty. He also asked whether they would be willing to sacrifice some of their free speech rights to make sure others on campus feel comfortable.

[RELATED: Free speech zones galore: 5 Times students First Amendment rights were violated on campus in 2019]

I definitely think they should be monitoring the hate speech because that shouldn't be allowed."

WATCH:

Most students and young Americans said they were fine with colleges and universities monitoring social media accounts. Some even said they would willingly turn their accounts over for inspection.

I definitely think they should be monitoring the hate speech because that shouldnt be allowed, one individual said.

She also added she would encourage a school to inspect her social media accounts if it has to do with helping the school in...creating a sense of more safety and security and erasing the hate speech.

[RELATED: Free speech org vows to 'monitor' colleges with classes online]

If thats something I can be helpful for, Id be happy to.

I have nothing to hide, another student said.

Many were quick to say they would trade their free speech rights for the comfort of others on campus.

I would do that, cause I mean if Im just giving up a little of what I care about just to make others feel better, Id do that, another person said. Id make that exchange.

Follow the author of this article on Facebook: @eduneret and Twitter:@eduneret

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WATCH: Young Americans willing to give up First Amendment rights to avoid offending others - Campus Reform

Even in an insane time, some bits of idiocy are too great to endure.

Take the debate about whether statues of Jesus will be pulled down amidst the current furor over whether monuments to Confederates and slaveholders should continue to stand.

A few days ago, President Donald Trump said the push to remove marble tributes to Jefferson Davis, Robert E. Lee and other historical figures who either took up arms against the United States or held human beings in bondage also could threaten similar representations of Abraham Lincoln and, yes, Jesus.

Trump vowed that never would happen.

Give me break.

Lincoln is a secular historical figure and public decisions about whether to honor or not honor him are just that public decisions. They can be voted on, up or down, just as questions about whether Barack Obama, George W. Bush or Donald Trump should be similarly honored can be.

Jesus is another matter altogether.

Likenesses of Jesus accurate or not cannot and will not be erected or torn down by a vote of the citizenry or through public pressure.

This isnt because the thrice-married Donald Trump, odd defender of supposed traditional values, will man the barricades and fight back the infidels.

No, its because of the U.S. Constitution a document this president really ought to get around to reading someday.

There shouldnt be any statues, busts or other representations of Jesus placed on public property at taxpayer expense in the first place unless, of course, the same tributes are open to and offered to all other faith traditions. The establishment clause of the First Amendment prevents government from endorsing any religion.

Statues of Jesus on private property, on the other hand, cant be touched by public pressure or majority vote. The free exercise clause of that same First Amendment prevents government the instrument of majority opinion from interfering with individual religious expression.

Those clauses in the Constitution exist because the founders wanted to make faith a private, individual matter. We dont get to take votes on whether our neighbor should be a Baptist, a Muslim or an atheist. Such questions are left up to our neighbor. Questions of conscience are her choice and her responsibility.

Not ours.

The right isnt absolute. No right is.

We dont have a First Amendment defense that would allow us to claim that a divine power urged us to shoot up a fast food restaurant or a nightclub and thus get away with murder. Nor can we rob banks and argue that were merely confronting the money changers.

But all reasonable individual expressions of faith including displaying statues or paintings of Jesus Christ are protected.

And, unless the First Amendment is repealed, those expressions of faith always will be.

Its possible Donald Trump does not understand this. The list of things this president does not know is long enough to be considered almost endless.

But, even if thats the case, its irresponsible for him to suggest that statues of Jesus somehow are imperiled for at least two reasons.

The first is that this national debate about how we should view the most painful parts of our countrys past is going to be agonizing enough as it is.

Make no mistake about this. The discussions millions of Americans are having right now about how we should regard the Civil War and our tortured history regarding race probe this nations deepest and most enduring wounds.

To have a president who refuses to be part of the healing process is bad enough.

To have one who insists on deepening those wounds is even worse.

Much worse.

The second reason Trump is irresponsible is that hes misleading Americans about their rights rights hes duty-bound as president to defend.

The fact that he may not understand those rights himself is no excuse.

Hes the president.

He should know his duty.

Even in an insane time, some bits of idiocy should not be tolerated.

This is one of them.

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

John Krull is director of Franklin Colleges Pulliam School of Journalism and publisher of TheStatehouseFile.com, a news website powered by Franklin College journalism students.

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JOHN KRULL: The Constitution, not Trump, protects images of Jesus - Goshen News

The June 11 offer by Dan Braswell for a reasonable review of his writings is typical of the party-affiliated vortex of distraction from the issue Thats what I said but I didnt say that which is echoed from Washington too often.

The issue is citizens right to free speech. Braswell and Del. John McGuire need to review two things: The First Amendment right to free speech and the Supreme Courts decision about public officials blocking citizens from posting to their social media accounts.

The First Amendment provides the public with a venue to petition the government for redress of grievances. Since McGuire is the peoples government representative, his blocking access to and deleting comments on his Facebook account is unconstitutional and prevents us from voicing our concerns.

So where should we go if McGuire is emotionally incapable of dealing with opposition? He ignores the concerns of constituents, which is the point. We have the right to express our views to him regardless of his immature attitude. All citizens of the 56th district should be concerned about delegates who are unwilling to communicate with the public they serve.

This should be disturbing to everyone, even Braswell who actively and passively advocates McGuires abuse of First Amendment rights instead of performing an intervention to overcome those feelings of inadequacy.

More important is McGuires intimidation and bullying to prevent the publics right of access to his office. Supposedly, he took another oath to uphold the Constitution when he became delegate, but probably had his fingers crossed. If he cant perform his service to the public, why is he in office?

Why shouldnt he answer questions? Why shouldnt he be held accountable? Whenever the people of the 56th district want answers, his approach seems to be to bunker down. He cant even set up a venue where everyone is comfortable the cause for that discomfort shows itself with his Facebook rants. All his ranting seems to be the overall political strategy of his party. If we could get a coherent post from McGuire, it would help.

Right now, with all his campaigning and overall lack of communication skills, he only displays limited ability to grasp complex and comprehensive issues that are necessary for public safety. His narrow scope belies the broader perspective he cant cope with.

The United States Supreme Court decided that Trumps attempts to block citizens from his Twitter account because they didnt praise him enough, or at all, are unconstitutional. It decided that a public officials social media account cannot be used as a propaganda tool and only allow access to the party faithful for comments. This decision also applies to McGuires Facebook page.

It must be that McGuire has that same sensitivity to criticism as too many of his colleagues.

For all the glorification of military service as justification for public service, Braswell made me think of a military phrase that can be applied to McGuire. As paraphrased: Cowardice in the face of constituents!

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Read the First Amendment | Letters To The Editor - The Central Virginian

Everyone should have the First Amendment right

Recently The Marietta Times in the Our Opinion column ran the following Fight for free speech is always appropriate. Therefore, shouldnt everyone have the right to fight for their opportunity to express their opinion regardless of ones viewpoint, regardless of the subject matter, with the exceptions of salacious views and/or defamatory comments? The First Amendment gives every individual that given right! Sadly, many in the vast media army are choosing the topics they consider appropriate for freedom of speech. Apparently, Christianity is not one of those subjects. Shouldnt all people, including Christians, be given the opportunity to exercise the right of Freedom of Speech?

Deciding what should be said or not said is restricting the First Amendments freedom. Attempting to appease those who disagree with other beliefs or viewpoints is not a function for the First Amendment. Deciding to restrict thought and free speech on a specific subject is considered the task of media and it is blatantly wrong. Regrettably, many people think otherwise. Shouldnt everyone have the use of the First Amendment Right including Christians? Yet many of those who share the Gospel of Jesus Christ through various media modes are stifled yes, even censored.

William O. Douglas, the longest-serving justice in the history of the Supreme Court, said, Restrictions of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.

Indeed, the freedom of speech on different subjects religion, politics, God, etc. can upset, infuriate, and make people uncomfortable. Nevertheless, we, being citizens of America, having been granted the right to exercise our Freedom of Speech, should be given the opportunity and liberty to freely exercise the First Amendment regardless of the subject matter, Christianity included! After all, doesnt the article in Our Opinion column say that to fight for free speech is always appropriate? Indeed, it is!

Nancy Hamilton

Marietta

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Everyone should have the First Amendment right | News, Sports, Jobs - Marietta Times

Words matter. Reporting matters. But sometimes, its a video that matters most.

When a Minneapolis police officer knelt on George Floyds neck for more than eight minutes while he died, gasping for breath, a cellphone video shot by a teenage girl on her way to get a snack made the horror undeniable.

The world needed to see what I was seeing, Darnella Frazier told the Minneapolis Star Tribune.

Days later, when Buffalo police knocked down 75-year-old protester Martin Gugino and a pool of blood spread under on the sidewalk under his head, a cellphone video enraged people all over the world.

It just so happens I was in the right place at the right time with exactly the right angle, Mike Desmond of the local public radio station WBFO explained to the Buffalo News.

Video can change the world or at least a few million opinions. But what about the potentially explosive video that cant be shot or never gets seen because law enforcement has confiscated cameras or arrested the people using them?

This week, New York Universitys First Amendment Watch released A Citizens Guide to Recording the Police a primer for amateur videographers on the rights they are entitled to in these encounters. The guide explains why, under most circumstances, the police can neither seize nor demand to view such recordings though some may try and it provides case-law examples to back up its assertions.

It comes along at a crucial time.

In this new era, we have armies of citizens out on the streets capable of producing evidence that checks the conduct of public officials, said Stephen Solomon, the organizations founding editor. The First Amendment right to record public officials, such as the police performing their official duties in public, is central to our democracy, he said.

Who can forget the bizarre and disturbing arrest of Omar Jimenez and a CNN crew while on live television in Minneapolis on May 29? That incident was roundly denounced by press freedom groups and resulted in an apology from Minnesota Gov. Tim Walz: There is absolutely no reason something like this should have happened.

But less heralded and far less visible offenses have happened throughout the United States, as the U.S. Press Freedom Tracker makes clear.

Sue Brisk, a freelance photographer, told the Tracker that she was photographing demonstrations at 42nd Street in Times Square that same day with her NYPD-issued press pass clearly displayed. I watched the police beat people with billy clubs and then they threw a woman up against a pole right in front of me, Brisk said. After that its a blur.

Brisk said that, before she knew what was happening, her head was slammed to the ground and she found herself pinned under at least three New York City police officers. Weeks later, she was still trying to retrieve her camera.

By the Trackers count, well over 400 aggressions against the press including dozens of examples of equipment being damaged have marred recent Black Lives Matter protests.

The NYU guide cites a 2012 U.S. Court of Appeals for the 7th Circuit decision that drew a direct connection between the creation of a recording and something thats better understood to be constitutionally protected: the publication or dissemination of a recording.

The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, the decision in ACLU v. Alvarez stated, if making the recording were unprotected. Restricting the use of [a recording] device suppresses speech just as effectively as restricting the dissemination of the resulting recording.

However, the right to record police isnt, well, bulletproof, at this moment.

About three-fifths of the U.S. population lives in states where federal appeals courts have recognized a First Amendment right to record the police in public, the guide says. The U.S. Supreme Court hasnt ruled directly on the issue.

That means legal protections arent nailed down everywhere. Yet the outlook is good: Given the resounding support so far for this First Amendment protection, it seems highly likely that the remaining federal appeals courts would reach the same conclusion if the issue appears on their docket.

Of course, the legal right to record is no guarantee of respectful treatment when events are unfolding. And they are small comfort to journalists or members of the public who have been injured or had their equipment seized as they tried to document protests.

Still, Solomon told me, its helpful to know your rights to confidently assert them when it matters most. After all like 17-year-old Darnella Frazier who started a movement by pointing her cellphone almost anyone can capture evidence of what the world needed to see.

Should that happen, its good to know the First Amendment has your back.

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Taking a cellphone video of police? Theres a First Amendment for that - Seattle Times

At the coronavirus task force briefing Friday, Vice President Mike Pence was asked a question about why the Trump campaign held a rally in Tulsa, Okla., against the advice of local health officials. He responded by citing the First Amendment.

- On the campaign, it really does sound though like you're saying do as we say, not as we do. You're telling people to listen to local officials, but in Tulsa you defied local health officials to have an event that even though you say it didn't result in a spike, dozens of Secret Service agents, dozens of campaign staffers are now quarantined after positive tests. And then in Arizona, one of the hardest-hit states, you packed a church with young people who weren't wearing masks. So how can you say that the campaign is not part of the problem that Dr. Fauci laid out?

MIKE PENCE: Well, I want to remind you again that the freedom of speech and the right to peaceably assemble is enshrined in the Constitution of the United States. And even in a health crisis, the American people don't forfeit our constitutional rights. And working with state officials, as we did in Oklahoma and as we did in Arizona, we're creating settings where people can choose to participate in the political process, and we'll continue to do that.

I think it's I think it's really important that we recognize how important-- how important freedom and personal responsibility are to this entire equation but allowing younger Americans--

- [INAUDIBLE] freedom [INAUDIBLE].

MIKE PENCE: --allowing younger Americans to understand, particularly in the counties that are most impacted. The unique challenges that we're facing in their age group we think is important.

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Pence says First Amendment is why Trump campaign held Tulsa rally despite local health officials' warnings - Yahoo News

Protests of racial injustice and police brutality continued this weekend in Charlotte. As usual, Charlotte Mecklenburg police were on the scene, but they were operating under a temporary restraining order. A superior court judge on Friday signed the order halting the department's use of riot control agents like tear gas and flash bang grenades against peaceful protesters. That was a response to a lawsuit filed by groups including the local chapter of the NAACP, the ACLU of North Carolina and Charlotte Uprising. Alex Heroy helped to argue their case in court. He joins Morning Edition host Lisa Worf.

Worf: Good morning, Mr. Heroy.

Heroy: Good morning.

Worf: So how much does this restraining order change CMPD tactics? After all, CMPD says it has only used riot control agents like tear gas once people began throwing rocks and frozen water bottles at officers.

Heroy: I think it requires stricter adherence to their policy and puts limits on the policies. There's CMPD directives are, they're not always to set specific on the use of force continuum and sort of what's allowed and what's not allowed. So this is put in place. We filed a lawsuit to really protect the peaceful protesters that have been victims of, what we thought of as sort of a gross assault on their First Amendment rights, at least in particular on June 2.

Worf: So when you say it puts limits on some of their tactics, are you saying because it adds a certain level of scrutiny that wasn't there before, even though CMPD says this doesn't change that much?

Heroy: Yes. Yes. I mean, so on June 2, when you had three to four hundred protesters who are all largely acting very peaceful, marching with their hands up. No real issues that we've seen in the videos. And then the police boxed them in and gassed them and shot at them. That's not OK. That's across the line. That's way over the line. Even if CMPD says that there were some outliers throwing a water bottle or even a rock would justify that kind of use of force. And it doesn't justify that use of force indiscriminately against a large crowd of peaceful protesters exercising their First Amendment rights. That's just not allowed. It's not OK. And we had to put a stop to it and not let it, risk it happening again. That's what we had to move for this emergency restraining order to make sure it doesn't happen again.

Worf: No CMPD Deputy Chief Jeff Estes said Friday that the one difference it makes for the department is that it prohibits officers from using riot control agents like tear gas again against people who are destroying property. So officers would have to intervene physically to remove those people. Do you have concerns this could further escalate a situation?

Heroy: Well, I don't think this CMPD's communication was an accurate summary of the order. The restraining order restricts actions against peaceful protesters. If there is an individual who is causing a destruction during a peaceful protest, CMPD is supposed to go in and remove that that individual, if they're destroying property there's a use of force continuum that CMPD is allowed to use. It is not a, this is not a, an order that allows or forces CMPD to just simply let people go commit criminal activity. That is not it at all. It is a restriction on what use of force can be used against peaceful protesters gathering.

Worf: Now, this is a temporary restraining order until the lawsuit can be heard. What does the lawsuit itself seek?

Heroy: So the lawsuit itself seeks a permanent restraining order that the same thing. We're also asking for what's called a declaratory judgment against which would find that the dispersal order allegedly announced on June 2 was ineffective and did not comply with CMPD policy.

Worf: And beyond the use of tear gas and other riot control agents, how did the groups you represent want to change police tactics when it comes to handling protests?

Heroy: I say that, you know, there's a lot of groups that are plaintiffs in the lawsuitm it's a lot of different opinions. So I don't want to speak for the entire group because it's a range with a lot of things that need to be changed with police. But I think the overarching issue is the respect and lack of respect and improving that, greatly improving that and community relations with the police.

Worf: That's Alex Heroy, who helped argue the case in court on behalf of groups, including the local chapter of the NAACP, the ACLU of North Carolina and Charlotte Uprising.

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Lawyer On How Restraining Order On CMPD Will Protect Protesters' First Amendment Rights - WFAE

THE FIRST AMENDMENT of our Constitution provides for five important freedoms and they dont deserve to be abused.

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

The First Amendment protects the rights of citizens to protest the Minneapolis police murder of George Floyd.

But looting, burning of stores and destruction of businesses is an unacceptable way to protest the murder of George Floyd.

Protests and demonstrations are not new in this 200 year old democracy.

The protests of the 60s ranged from the Civil Rights movement to our involvement in the Vietnam War. Subsequently we have experienced the Gay Rights Movement, the Environmental Movement, plus a number of issues have changed our lives in many ways.

We have experienced a great deal of social change because of these movements, made possible by the First Amendment.

The First Amendment allows us to speak to issues and redress government regarding its policies and legislation. The recent protests are an excellent example that there is a need for change of police culture and how we provide safety and protection of citizens.

Its becoming clear that we may have expected police to perform too many roles. Its also clear the training of officers is not adequate and/or disciplines and accountability are not adequate in some departments.

The protests/protestors are rightfully calling attention to this. But action by others who damage property, injure people and place economic burdens on neighborhoods should never be acceptable and distract from the goal of the protest.

Racism is so deep-seated we havent been able to overcome it. In the George Floyd case, people around the world were witnesses to a crime and saw no one take an immediate action when the officer was taking Floyds last breath away. Are we going to continue to be witnesses to injustice?

Protests will continue to be in order, but if you are protesting the State government, go to the steps of the State Capitol. If you are protesting County government, go to the County Courthouse. If you are protesting issues in your own city, go to the City Hall and clearly state your issue.

America has changed, but tough questions have been ignored. We have made some progress with equal opportunity and equal rights and I do not think there is justice for all.

Hopefully, now is the time we no longer ignore the tough questions on racial inequality and the current protests will result in a major shift in America so there is more equal opportunity, equal rights and justice for all.

-- Special to the Baldwin Bulletin

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About the Town: Don't abuse freedoms | Opinion - The Baldwin Bulletin

The leader of the Sons of Confederate Veterans needs to reread the Bill of Rights.

The group is claiming responsibility for hiring a plane to fly a Confederate flag and a banner that said Defund NASCAR over Talladega on Sunday. It was the first race at the Alabama track since NASCAR banned fans from flying the Confederate flag at track properties.

NASCAR is a private company. It has the absolute right to prohibit certain items at its tracks. Yet Paul Gramling tried to tell the Columbia Daily Herald that NASCAR was infringing on the First Amendment rights of fans by banning the flag.

Who wants to tell Gramling that the First Amendment doesnt apply to private company prohibitions? From the Daily Herald:

NASCARs banning the display of the Confederate battle flag by its fans is nothing less than trampling upon Southerners First Amendment Right of free expression, Sons of Confederate Veterans Commander in Chief Paul C. Gramling Jr. said. This un-American act shall not go unchallenged. [On Sunday], members of the Sons of Confederate Veterans Confederate Air Force displayed its disapproval of NASCARs trampling upon the First Amendment Rights of Southerners. During and before the start of the NASCAR race in Talladega, Alabama, our plane flew a banner announcing a drive to defund NASCAR.

It is the hope of the Sons of Confederate Veterans that NASCAR fans will be allowed the fundamental American right of displaying pride in their family and heritage. The Sons of Confederate Veterans is proud of the diversity of the Confederate military and our modern Southland. We believe NASCARs slandering of our Southern heritage only further divides our nation. The Sons of Confederate Veterans will continue to defend not only our right but the Right of all Americans to celebrate their heritage. We trust NASCAR will do the same.

Theres something hilariously bizarre about the leader of a group honoring the heritage of those who fought against the United States saying that something clearly allowed by law and the U.S. Constitution is un-American. Even the mayor of Columbia, Tennessee, Chaz Molder, made sure to point out how NASCAR was not violating the groups constitutional rights and that the group does not represent Columbia. Period.

Its also unclear how, exactly, NASCAR could be defunded. Since its, you know, a private company and not a public entity. The only way that defunding NASCAR could happen is if its television contracts were canceled by Fox and NBC, and sponsors started pulling out of the series. Thats not going to happen. Hell, NASCAR wouldnt have taken the steps to ban the Confederate flag if it didnt think that the move would be a net positive to attract new viewers and corporate sponsors.

The group has tried to sponsor a NASCAR car in the past, but NASCAR said no. NASCAR has not allowed the use of the Confederate flag in official capacities for decades and this months ban comes five years after the sanctioning body simply requested fans not to fly the flag at tracks. That request happened after a white supremacist killed nine parishioners at a Black church in Charleston, South Carolina.

Nick Brombergis a writer for Yahoo Sports.

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Leader of group that flew Confederate flag over Talladega wrongly says NASCAR infringed on the First Amendment - Yahoo Sports

Caroline Hunter, a member of the Federal Election Commission who regularly clashed with her fellow commissioners, resigned on Friday, according to a letter obtained by ABC News.

Hunter, a Republican, who was appointed by former President George W. Bush in 2008, regularly butted heads with FEC Commissioner Ellen Weintraub, a Democrat also nominated by former President Bush.

She will stay on with the FEC until July 3. The White House has already nominated Allen Dickerson, the legal director of the Institute for Free Speech, to take her place.

In her resignation letter, Hunter has some strong criticism for Weintraub, though she is not mentioned by name.

"The FEC would benefit greatly from new faces and fresh perspectives. It needs Commissioners who will respect the First Amendment, understand the limits of the FEC's jurisdiction, and remember that Congress established the FEC to prevent single-party control, with every significant decision requiring bipartisan approval," Hunter wrote.

"One Commissioner -- who has served for more than a decade past the expiration of her term -- routinely mischaracterizes disagreements among Commissioners about the law as 'dysfunction,' rather than a natural consequence of the FEC's unique structure, misrepresents the jurisdiction of the agency and deliberately enables outside groups to usurp the Commission's role in litigation and chill protected speech," she added. "The American people deserve better."

Federal Election Commission (FEC) Commissioner Ellen Weintraub testifies during a hearing before the Elections Subcommittee of House Committee on House Administration, Nov. 3, 2011 on Capitol Hill.

With Hunter's resignation, the FEC is again left with just three out of six commissioners, meaning that it is one vote short of the minimum four votes needed to act on any substantive matters.

The FEC was left in the same place with no enforcement power for nearly a year, after former Vice Chairman Matthew Petersen resigned from his position last August, until recently.

In May, the Senate finally confirmed President Donald Trump's appointee, Trey Trainor, a Texas election attorney, to fill one of the vacancies on the commission, restoring the quorum.

"It's keenly disappointing for the FEC to lose its quorum just a blink of an eye after we regained it," said Weintraub. "But of course I wish Caroline well in this and all her future endeavors."

The remaining members of the commission are Republican Chair Trainor, Democratic Commissioner Weintraub, and Independent Vice Chair Steven Walther.

Without the four-person quorum, it will not be able to initiate audits, engage in rulemaking, vote on enforcement matters or even issue an advisory opinion or hold meetings.

The commission will continue to perform its important day-to-day duties of making details of 2020 campaign contributions and expenditures available, and its enforcement arm will still review complaints and make recommendations to the commission on those matters.

Scenes from the Federal Election Commission headquarters.

Trevor Potter, president of Washington-based nonpartisan ethics group Campaign Legal Center and a former Republican chair of the FEC, called for a prompt replacement of Hunter to restore the quorum, saying her resignation has left "democratic elections with significantly less government oversight."

"A huge majority of voters are concerned about the enforcement of our campaign finance laws, and Hunter's resignation leaves their democratic elections with significantly less government oversight," Potter said in a statement. "Elections in 2016 and 2018 saw campaign finance violations including: illegal foreign spending, a lack of transparency around the sources of millions in election spending, and candidates working illegally with super PACs."

"Americans understand that the campaign finance system correlates directly to their families' quality of life," he continued. "The corruption of our democracy by unprecedented amounts of money in our elections from wealthy special interests diminishes the voices of average citizens. A strong and functional FEC is vital to protecting our democracy, fighting corruption, and holding politicians accountable for the campaign money they receive."

A source familiar with Hunter's thinking told ABC News that Weintraub's decision to let outside groups file lawsuits directly in federal court against other groups and individuals is something on which Hunter strongly disagreed with Weintraub.

"Fire alarms are sometimes housed in boxes labeled 'Break glass in case of emergency.' The Federal Election Campaign Act has such a box; it's the provision that allows complainants to sue respondents directly when the Federal Election Commission fails to enforce the law itself. In the 44-year history of the FEC, this provision has never been fully utilized. Today, I'm breaking the glass," Weintraub said in 2018.

This incident "took the dysfunction to a new level," the source explained.

Hunter served on the FEC for 12 years and as the commission chair three times and plans to join "the legal team of Stand Together, a philanthropic organization dedicated to tackling some of the biggest challenges of our times, including reforming the nation's criminal justice system, strengthening K-12 education, helping neighbors beat poverty and addiction, empowering everyone to find fulfilling work, and more," according to a press release.

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FEC Commissioner Caroline Hunter resigns from post, says commission 'needs to respect the First Amendment' - ABC News

December 15, 1791, the First Amendment was adopted as one of the 10 amendments that constitute the Bill of Rights. It states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Our founding fathers created the First Amendment in response to two centuries of state-sponsored religious conflict and oppression in America, and with the keen understanding of the religious persecution in European nations resulting in official state religions and religious wars that were the norm.

Their understanding of the past is really all our founding fathers had to create a basic set of freedoms for each of us to have in our back pocket. Freedoms, we all use each and every day.

Although evolution and progress of a nation and its people is understood and expected, they could never have foreseen the internet. Or Social Media for that matter.

Since its inception in, social media has been at the core of Free Speech controversy. It has become common place for some users to berate, threaten, pick on, bully and/or share false information.

Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law and true threats.

The Communications Decency Act of 1996 provides immunity from liability for providers and users of an interactive computer service that publishes information provided by third party users. Basically, social media platforms such as Facebook, Twitter and Instagram have absolutely zero responsibility for what citizens share across them and how they may hurt another human being.

Fast forward to May 28, 2020. President Trump signed an executive order aimed at social media companies after Twitter called two of his tweets potentially misleading. The executive order puts to test the level of authority the White House has when it comes to Free Speech.

This also brings up the question, How much free speech should social media be allowed? And, should social media platforms be held responsible for content submitted by users? Its not as black and white as some may think.

The First Amendment, vague in its explanation, is so in order to allow growth. But when that growth alters the flow of accurate information, or the interpretation is changed, we owe it to our nation to get it right.

For all the good social media brings to us, it is here that it lets us all down daily. We dont know who to trust with factual information. We become confused with who is sharing factual information. So we end up sharing and spreading information we believe to be true whether is or is not, ultimately exercising our own right to Freedom of Speech.

Is it right to censor social media platforms to help decrease the flow of false information? Is it our right under the First Amendment to share information whether accurate or not? Is it OK that social media platforms have the right to censor its users?

The quote below was written by the 28th President of the United States, Woodrow Wilson, in 1917. No matter what your opinion of President Wilson is, when reading it, it almost feels as though it is describing our nation today.

I can imagine no greater disservice to the country than to establish a system of censorship that would deny to the people of a free republic like our own their indisputable right to criticize their own public officials. While exercising the great powers of the office I hold, I would regret in a crisis like the one through which we are now passing to lose the benefit of patriotic and intelligent criticism.

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RICH MACKE: Social media and the First Amendment - Scottsbluff Star Herald

Note from Scott Hollifield: Please enjoy this previously published column from 2004 while I am away from the office.

While the First Amendment to the U.S. Constitution guarantees us all the opportunity to speak in tongues at the Rocky Creek Church of the New Revival and Second Coming if we so choose, it does not give any of us the right to own a goat named Sparky.

Im sorry, thats just the way it is.

A survey by the McCormick Tribune Freedom Museum found that people are all mixed up about the First Amendment, which gives us freedom of speech, freedom of religion, freedom of the press, the right to assemble and the right to petition for redress of grievances.

A telephone survey of 1,000 people found that more respondents knew Bart as a character on The Simpsons (61%), Simon as a judge on American Idol (49%) and Federal Express as the one to call when it absolutely, positively has to be there overnight (61%) than were aware that freedom of the press is included in the First Amendment (11%).

And many believe the First Amendment is much more expansive than it really is. Twenty-one percent said it guarantees each of us the right to own and raise pets (like a goat named Sparky), while 17% said the First Amendment affords us the right to drive a car.

We all need a civics lesson, but not one of those boring civics lessons where we lose interest and stare out the window at the girls track team and flunk the final and fail to get into a really good college and end up working at a newspaper and writing about goats, but an exciting civics lesson that applies the First Amendment to a real-life situation we can all understand.

Here we go. Lets say your pet goat Sparky sneaks next door and tears the trailer hitch off your cousin Eugenes Pontiac. Theres already bad blood between the two of you due to a property line dispute and Eugene, being the hothead that he is, says, Ill tell you what Im going to run for mayor and when I win Im going to pass me an ordinance outlawing goats.

Ill tell everybody I know not to vote for a goat-hating hothead! you exclaim. (Freedom of speech)

Frankly, though, youre not worried about Eugene becoming mayor since hes about as popular around town as a Danish cartoonist at an Islamic picnic. (Freedom of religion)

Then, Eugenes opponent is spotted in the background of a Kid Rock sex tape and withdraws from the race, his political career and marriage both in shambles.

GOAT-HATING HOTHEAD WINS MAYORS RACE reads the newspaper headline. (Freedom of the press)

Fearing the town will soon fall into anarchy due to Eugenes utter lack of leadership skills and functional illiteracy, you quickly tack these notices to telephone poles across the community: If you would like to help me get Eugene thrown out of office, meet me at the fellowship hall of the Rocky Creek Church of the New Revival and Second Coming on Tuesday at 8 p.m. (Freedom of speech, freedom of assembly, freedom of religion)

That night, you address the crowd.

If yall thats handling the snakes back there will give me your attention for a minute. Now, we all know a goat-hating hothead like Eugene shouldnt be the mayor. Lets circulate this petition that calls for his immediate removal from office due to his ineptness and goat bias. (Freedom of speech, freedom to petition for redress of grievances)

PETITION SUCCESSFUL GOAT-HATING HOTHEAD OUSTED, reads the newspaper headline. (Freedom of press)

So, heres what weve learned today: The First Amendment is good. It has nothing to do with owning and raising pets. And no one should ever elect a goat-hating hothead mayor.

Continued here:

Hollifield: Another look at the First Amendment - Bristol Herald Courier

Protests of racial injustice and police brutality continued this weekend in Charlotte. As usual, Charlotte Mecklenburg police were on the scene, but they were operating under a temporary restraining order. A superior court judge on Friday signed the order halting the department's use of riot control agents like tear gas and flash bang grenades against peaceful protesters. That was a response to a lawsuit filed by groups including the local chapter of the NAACP, the ACLU of North Carolina and Charlotte Uprising. Alex Heroy helped to argue their case in court. He joins Morning Edition host Lisa Worf.

Worf: Good morning, Mr. Heroy.

Heroy: Good morning.

Worf: So how much does this restraining order change CMPD tactics? After all, CMPD says it has only used riot control agents like tear gas once people began throwing rocks and frozen water bottles at officers.

Heroy: I think it requires stricter adherence to their policy and puts limits on the policies. There's CMPD directives are, they're not always to set specific on the use of force continuum and sort of what's allowed and what's not allowed. So this is put in place. We filed a lawsuit to really protect the peaceful protesters that have been victims of, what we thought of as sort of a gross assault on their First Amendment rights, at least in particular on June 2.

Worf: So when you say it puts limits on some of their tactics, are you saying because it adds a certain level of scrutiny that wasn't there before, even though CMPD says this doesn't change that much?

Heroy: Yes. Yes. I mean, so on June 2, when you had three to four hundred protesters who are all largely acting very peaceful, marching with their hands up. No real issues that we've seen in the videos. And then the police boxed them in and gassed them and shot at them. That's not OK. That's across the line. That's way over the line. Even if CMPD says that there were some outliers throwing a water bottle or even a rock would justify that kind of use of force. And it doesn't justify that use of force indiscriminately against a large crowd of peaceful protesters exercising their First Amendment rights. That's just not allowed. It's not OK. And we had to put a stop to it and not let it, risk it happening again. That's what we had to move for this emergency restraining order to make sure it doesn't happen again.

Worf: No CMPD Deputy Chief Jeff Estes said Friday that the one difference it makes for the department is that it prohibits officers from using riot control agents like tear gas again against people who are destroying property. So officers would have to intervene physically to remove those people. Do you have concerns this could further escalate a situation?

Heroy: Well, I don't think this CMPD's communication was an accurate summary of the order. The restraining order restricts actions against peaceful protesters. If there is an individual who is causing a destruction during a peaceful protest, CMPD is supposed to go in and remove that that individual, if they're destroying property there's a use of force continuum that CMPD is allowed to use. It is not a, this is not a, an order that allows or forces CMPD to just simply let people go commit criminal activity. That is not it at all. It is a restriction on what use of force can be used against peaceful protesters gathering.

Worf: Now, this is a temporary restraining order until the lawsuit can be heard. What does the lawsuit itself seek?

Heroy: So the lawsuit itself seeks a permanent restraining order that the same thing. We're also asking for what's called a declaratory judgment against which would find that the dispersal order allegedly announced on June 2 was ineffective and did not comply with CMPD policy.

Worf: And beyond the use of tear gas and other riot control agents, how did the groups you represent want to change police tactics when it comes to handling protests?

Heroy: I say that, you know, there's a lot of groups that are plaintiffs in the lawsuitm it's a lot of different opinions. So I don't want to speak for the entire group because it's a range with a lot of things that need to be changed with police. But I think the overarching issue is the respect and lack of respect and improving that, greatly improving that and community relations with the police.

Worf: That's Alex Heroy, who helped argue the case in court on behalf of groups, including the local chapter of the NAACP, the ACLU of North Carolina and Charlotte Uprising.

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Lawyer On How Restraining Order On CMPD Will Protect Protesters' First Amendments Rights - WFAE

News File PhotoThe Alpena County Courthouse is seen.

ALPENA A 26th Circuit Court judge will weigh whether death threats should keep a man in jail if theyre considered free speech.

A judge set a $150,000 bond when David Frey said was arrested on a terrorism charge for allegedly threatening to kill someone, among other charges. But the terrorism charge, the most serious of the charges Frey faced, was dismissed by District Court Judge Thomas LaCross, so the bond should be lowered, Frey argued in Circuit Court.

If the alleged threats arent part of the current charges, they are protected speech under the First Amendment, defense attorney Alan Curtis argued.

Its not a crime to say, In the future, I might kill you,' Curtis said.

The bond is too high for the remaining charges, Frey said, and should be lowered to an amount he can pay so he can leave jail while his case proceeds in court.

Frey is accused of breaking car windows and kicking in a door at the home of a man Frey said he thought might be hurting Freys son.

The terrorism charges connected to verbal death threats made against the man and his family could have led to a 20-year prison sentence.

With that alleged offense no longer in play, Frey should be able to pay less to be released from jail, Curtis, a court-appointed attorney, said.

Alpena County Prosecutor Cynthia Muszynski argued the bond amount is reasonable, despite the lesser seriousness of the remaining charges, because Frey continued making threats via the phone in the county jail after he was arrested.

Curtis also made the First Amendment argument before LaCross in District Court, when the terrorism charge was dropped, but LaCross ruled the bond amount should not change.

Circuit Judge Ed Black, who has not seen a transcript of the court hearing in which LaCross decided to drop the terrorism charge, told the parties that, while retaining the $150,000 bond amount does not sound like something I would have done, he doesnt have all the facts LaCross used in his decision.

Frey will appear in court again in July, after Black has been supplied with the same information originally available to LaCross, to argue for a lower bond.

At that time, the court will also address a motion that Black recuse himself from hearing Freys case because Black handled other cases related to Frey while Black was Alpena County prosecutor.

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Death threats protected by First Amendment, attorney says - Alpena News

Well folks another opinion day has come and gone at the US Supreme Court with no ruling yet on the bigBarr v. AAPCchallenge to the TCPA.

Traditionally the Supreme Court clears its April docket with rulings by the end of June. With a set Monday calendar to release opinions and a likely additional release date this Thursday, that leaves only TWO days left (the 25th and the 29th) for the Supremes to enter their final vote on the fate of the TCPA. If the traditional calendar sticks that is

Truth is, with two (traditional) opinion dates left the Supreme Court is still sitting on fourteen (14!) unissued rulings so this may end up slipping into July (although I certainly hope not since I have a big webinar to discuss the ruling set up next Tuesday, June 30, 2020. Ha!) Notably, the Supremes seem to be issuing opinions in rough order of argument, which means there are still six cases ahead of AAPC on the docket. Obviously, however, the Supreme Court canand willissue opinions in any order as they are finalized so this isnt a first come first served (TCPA) world.

But since we are all waiting with baited breath, lets go through a few possible outcomes here. As a refresher, the Supreme Court is reviewing the TCPA inAAPCon a challenge by a political consulting organization arguing that the TCPAs government-backed debt exemption is unconstitutional. There are a number of permutations to the challengeas was made clear at oral argumentand it is not entirely clear whether the Supremes will scrutinize only the exemption or the restriction itself.

Since TCPAWorlddwellers are becoming constitutional law scholars, lets also recall a couple basics of First Amendment jurisprudence:

While there is no doubt that a content specific statute must meet strict scrutinya very high test it is unclear whether that scrutiny is properly applied to the exemption in this case or to the restriction itself. The briefing of the parties below focused solely on the exemption but in the briefing on appeal to SCOTUS and in oral argument there has been noticeable creep toward arguments (for and against) applying scrutiny to the TCPAs restrictionsashift that may or may not be entirely attributable to my loud-mouthery.

So with all of this recalled, here are the possible outcomes in no particular order:

Why this might happen:AsProfessor Epps explained inUnprecedented14the doctrine of content neutrality has expanded greatly over the past few decades, arguably spiking to exhaustion inReed.It is possible that the Supreme Court usesAAPCas a vehicle to roll back (perhaps significantly) on the application of strict scrutiny in First Amendment challenges and re-focuses its application solely to instances of viewpoint specificity. (Translation: the Supreme Court might use the TCPA as an opportunity to give Congress more power to regulate speech in a neutral manner.)

Why it shouldnt/wonthappen:I mean, the TCPA is content-specific under existing case law so the Supreme Court would really have to depart fromReedin a clear and decisive way to get here. And judging by thequestions of the Justices at oral argument, this just isnt going to happen.

Why this might happen:This would be a pretty weird outcome because it would require the Supreme Court to find collecting government-backed debt is a compelling governmental interest, which is tacky to say the least. Still some district courts have reached this conclusion so it is not impossible.

Why it shouldnt/wonthappen:The Government did not even advance this argument and none of the Justices seemed slightly interested in it at oral argument. This seems like the most unlikely outcome.

Why this might happen:Really this is what should happen. The focus here would be on the restrictioni.e. the TCPAs ban on the use of ATDS/pre-recorded voice messages to call cell phonesand not the exemptioni.e. the ability of government-debt collectors to make calls. This makes more analytic sense since the First Amendment prohibits restrictions on speech not permissions (is that a word?) on speech. Plus the TCPA really should survive even strict scrutiny if the TCPAs ATDS restriction is read narrowly. So this approach allows for First Amendment doctrine to be logically applied AND for the TCPA to be upheld. I mean, feels like a win/win (since presumptively the Supreme Court does not want to strike down the popular statute.)

Why this shouldnt/wont happen:No one else thought of it but me? This actually seems to be the right answer here, but it simply wasnt briefed or argued and none of the Justices asked any questions about it from the bench. Right or wrong, the focus inAAPCseems to be primarily on applying scrutiny to the exemption and not the restriction and the assumption seems to befor whatever reasonthat the level of scrutiny to be applied to the restriction would be lower intermediate scrutiny because the content-specificity arises in the exemption and not the restriction itself. (Translation: everyone is elevating form over substance for some reason and it doesnt seem like thats going to change now.)

Why this might happen:Well, this is what the two courts of appeals below did so why wouldnt the Supreme court just do the same thing? This seems to be the odds on favorite for most observers but I think it is relatively unlikely (as I explain below). But the ruling here would come down to Congressional intent the TCPA includes a severance provision suggesting that Congress intended the exemption to be cast aside if it was unconstitutional. So the Court should do what Congress intended, right? But really this is theeasiestway for the Supreme Court to uphold the popular TCPA it is effectively a punt.

Why this shouldnt/wont happen:There are a bunch of problems with it. First, it applies scrutiny to the exemption rather than the restriction which is just flat the wrong analysis in a First Amendment case as opposed for instanceto an Equal Protection challenge. Second, it would result in the Supreme Court expanding a restriction to cover more speech, in a manner that it has never done before. Third, it would impact the substantive speech rights of non-parties to the case without notice or an opportunity to be heard. Fourth, it would afford a remedy to the Plaintiff that it did not seek and lacked standing to seek. Fifth, it would deny any remedy to a successful Plaintiff challenging a statute on First Amendment grounds. Sixth, there is nothing wrong with the exemption standing aloneagainst the First Amendment does not ban permissions on speech it bans restrictions so striking it makes no logical sense. Setting all of that aside, it just doesnt make sense that the Supremes would grant cert. on this issue when there was no split of authority below. There was areasoncert. was granted here and it wasnt just to rubber stamp what the appellate courts did.

Why this might happen:If the Supreme Court applies scrutiny to the exemption this is the result that makes the most doctrinal sense. The restriction is being applied unevenly by virtue of the exemption. Striking the exemption works violence to logic and law (see above) so there is really no other coursethe restriction must fall.

Why this shouldnt/wont happen:The TCPA is a popular statute and the Supreme Court doesnt want to allow a bunch of robocalls. There really is no doctrinal hold up here it is the right thing to do, assuming scrutiny is applied to the exemption that is.

Why this might happen:This is likely for the same reasons as 5. given thatno onehas raised the fact that certain provisions in the TCPA are not effected by the government-backed debt exemption and the issues of content-specificity it creates. Plus the entire dang statute is riddled with content specificity issues the FCC has created a number of content-specific exemptions and provisions like the DNC restrictions on marketingplainlylimit speech based on the content of the message.

Why this shouldnt/wont happen:Here is where the doctrine of severance properly comes into play. Plaintiffs below did not challenge any other content-specific provision of the TCPA other than the government-backed debt exemption. So only those restrictions of the TCPA impacted by that exemption should be struck down and severed from the statute. If folks have problems with he rest of the statute theyll just have to bring their own Supreme Court appeal. Still though, it is a little odd that this was never briefed or argued leading to a surprisingly high (15%) chance that the entire statute is gone.

Why this might happen:None of the other results are all that satisfying. Perhaps we see a carve out for political speech. Perhaps we see a remand for further fact-finding on the impact of robocalls. Perhaps there is further information needed on government-backed debt. Perhaps Justice Breyers approach of all law is speech and whats the First Amendment anyway? (not a real quote) is accepted and the TCPA brings down the freedom of speech entirely. Who knows.

Why this wont happen:Not sure why it would. The Supreme Court generally doesnt go off the rails where it doesnt have to and there was very little discussion of middle ground approaches at oral argument. Not much reason to suspect a screwball here, but you never know.

So adding it all up:

Oh and in case you missed our great coverageor just want to re-live anything our LIVE feeds of the oral argument arehereandhere. Our definitive analysis of the oralargument is here.

Stay tuned.

Read more:

What the US Supreme Court Might Do With the TCPA - The National Law Review

The FBI respects the rights of individuals to peacefully exercise their First Amendment rights. Our mission of protecting the American people and upholding the Constitution is dual and simultaneous, not contradictory.Accordingly, we are committed to apprehending and charging violent instigators who are exploiting legitimate, peaceful protests and engaging in violations of federal law. The continued violence, potential threat to life, and destruction of property across the United States interferes with the rights and safety of First Amendment-protected peaceful demonstrators, as well as all other citizens.To help us identify actors who are actively instigating violence in the wake of Mr. George Floyds death, the FBI is accepting tips and digital media depicting violent encounters surrounding the civil unrest that is happening throughout the country.If you witness or have witnessed unlawful violent actions, we urge you to submit any information, photos, or videos that could be relevant to the case at fbi.gov/violence.You may also call 1-800-CALL-FBI (800-225-5324) to verbally report tips and/or information related to this investigation.

Read this article:

Seeking Information on Individuals Inciting Violence During First Amendment-Protected Peaceful Demonstrations | Federal Bureau of Investigation -...

Like the president, state legislators who advance these bills arent doing so out of any genuine concern for protecting speech or public safety, as they sometimes claim. In fact, our analysis finds that legislators often explicitly introduce proposals to limit the rights of people whose positions they dislike. Thats not adherence to the First Amendment, which protects the rights of those we disagree withits adherence to self-interest. Specifically, we find a direct correlation between recent years astonishing rise in collective action, particularly by Black Lives Matter and Standing Rock activists, and a rise in attempts to delegitimize and criminalize those very demonstrations.

Lawrence Glickman: How white backlash controls American progress

From session to session and state to state, these bills look remarkably similar. Thats no coincidence. In January 2018, the American Legislative Exchange Council, or ALEC, published a model Critical Infrastructure Protection Act, which drew heavily from two Oklahoma anti-trespass bills, H.B. 1123 and H.B. 2128. This bill defined critical infrastructure to include oil pipelines and dramatically raised the penalties for trespass upon such property. Since then, more than 20 bills modeled on it have also passed. Activists are challenging one law in Louisiana that targets protests near gas and oil pipelines. House Bill 727 passed in 2018 and allows for felony charges of up to five years imprisonment for protesters. This, and bills like it, clearly aim to criminalize mass-protest actions such as those against the Dakota Access Pipeline.

The similarities are also not coincidental because quite literally the same legislators keep trying the same tactics, even after courts swat away their misguided bills. These zombie bills refuse to die at the end of the legislative session, and keep returning to haunt our constitutional rights. Legislatorss doggedness is appalling: In South Dakota, a bill was rushed through the legislature and signed quickly into law last year, establishing a civil action to sue riot boosters, defined as anyone who directs, advises, encourages, or solicits others toward acts of force or violence. This left the door open for police to arrest people for encouraging violence through First Amendmentprotected expression, such as chanting common protest slogans like No justice, no peace or even leading trainings of prospective protesters about their rights. A federal court struck the law down as unconstitutional, but state legislators were quick to introduce a redrafted bill just months later, tweaked to extend the crime of trespass to critical-infrastructure facilities. That bill has already passed and been signed into law by the governor.

All told, 116 bills to limit protest rights have been introduced since 2015, and 15 states have passed some form of anti-protest proposal, some passing several. And already this legislative session, were tracking 16 similar bills that are working their way through state capitolsdespite the obviously more pressing public-health and public-policy concerns.

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First Amendment RightsIf You Agree With the President - The Atlantic