How much academic freedom do K-12 teachers actually have to teach what they want? How far does the First Amendment go in shielding them? And where would they stand in the face of new state laws taking aim at the use of critical race theory or the teaching of antiracist lessons?

Measures introduced in at least 20 state legislatures to rein in teaching about race and other controversial and divisive topics have thrust teachers into uncertainty over what they can discuss in the classroom and whether they would face discipline or other legal consequences if they overstep.

This would make me hesitate now on some lessons about race, said August Plock, a social studies teacher at Pflugerville High School, near Austin, Texas. It potentially puts a chill over teachers.

Texas is one of five states where legislators have passed proposals so far this year limiting how teachers may address race issues in the classroom, with laws already signed by governors in Idaho, Iowa, Oklahoma, and Tennessee.

These measures pose a host of legal questions. For example, John Rumel, a law professor at the University of Idaho, said the measure passed in his state raises First Amendment free speech issues.

If Im a K-12 teacher, Im not sure what I can do, said Rumel, a former general counsel to the Idaho Education Association. Can I mention there is a rubric known as critical race theory that exists? Im not espousing it. This measure would give me pause as a teacher and might chill my speech.

While its too early for any of the new laws to have been challenged, the wave of legislation has teachers wondering how much leeway they have to veer from approved curricula or to address issues proscribed by state laws.

The blunt answer: While K-12 teachers retain some protections for their comments on issues of public concern, they dont have much in the way of academic freedom to veer from the curriculum or infuse their own experiences and views into the classroom.

I am reluctant to come to this conclusion, but in the K-12 sector, teachers do not really have any academic freedom, said Richard Fossey, a recently retired professor who taught education law at the University of Louisiana at Lafayette and has co-written several journal articles on the topic.

Suzanne Eckes, an education professor at Indiana University-Bloomington who has also written about the issue, said that under a series of decisions from the U.S. Supreme Court and the federal courts of appeals, K-12 teachers do not have the type of academic freedom that courts have recognized for college professors.

You dont have a lot of leeway, Eckes said she tells teachers. If a teacher called me and said, I want to teach the 1619 Project or about the Tulsa race massacre but my supervisor has advised me not to, I would sympathize with them, but would add that they could get in trouble for teaching those concepts.

The laws passed or proposed so far generally prohibit schools from teaching that one race or sex is inherently superior, that any individual is consciously or unconsciously racist or sexist because of their race or sex, and that anyone should feel discomfort or guilt because of their race or sex.

Some adopted or pending measures specifically mention critical race theory, a decades-old academic framework that examines how racism has shaped the U.S. legal system and has become the crux of controversies across the country.

Richard Fossey, retired law professor, University of Louisiana at Lafayette

At least two proposals specifically singled out as a prohibited topic for the schools the 1619 Project, a long-term reporting effort by The New York Times that has been turned into a curriculum centered around the year that enslaved Africans were first brought to colonial America.

But it remains unclear to what degree the various pieces of legislation address specifics of whats actually being taught in the nations schools.

Very few school districts will say out loud, Were adopting critical race theory, said Daniel R. Suhr, a lawyer with the Chicago-based Liberty Justice Center, which has sued a Nevada charter school and a Virginia school district over some of their anti-racism curricula or policies. They might say, Were embracing equity.

Critics often cite critical race theory as the basis for many diversity and inclusion efforts, regardless of how much the framework has actually informed those programs.

Many teachers, of course, freely express their opinions in their classrooms and make instructional decisions that veer from the approved curriculum.

I was a high school teacher, and I was always giving my political opinion and nothing ever happened to me, said Eckes, the Indiana University education professor. But that was due more to the grace of school administrators than any legal protections.

The U.S. Supreme Court has recognized academic freedom for professors and institutions at the higher education level, with a 1967 decision calling the college classroom the marketplace of ideas.

When it comes to K-12 teachers, the high court has made some lofty pronouncements, such as its language in the landmark Tinker v. Des Moines Independent Community School District decision on student speech, which declared that neither students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Education law scholars also can point to a handful of cases in which K-12 teachers did win court rulings in support of their classroom expression. In the 1960s and 1970s, teachers won cases after being fired for uses of the F-word, for using a controversial role-playing method to teach about Reconstruction, and for distributing surveys to students about sex, drugs, and euthanasia.

But in 2006, the Supreme Court ruled in Garcetti v. Ceballos that public employees generally do not have First Amendment protection for their on-the-job speech.

In a friend-of-the-court brief submitted in the Garcetti case, the National Education Association had argued that to teach is to communicateoften on matters of the greatest public importance and controversy. A decision that failed to recognize First Amendment protection for job-related speech would have a devastating impact on teachers, the union said in its brief.

Garcetti involved an employee of a prosecutors office. In his majority opinion, Justice Anthony M. Kennedy said the court was not deciding whether its analysis would apply in the same manner to a case involving speech related to scholarship or teaching. The line was perhaps a response to a dissent by Justice David H. Souter, who expressed concerns about the effect of the majoritys principle on academic freedom in public colleges and universities.

Since Garcetti, numerous courts have ruled that the potential exception for scholarship and teaching did not apply to K-12 educators.

In a 2007 case, a federal appeals court upheld the non-renewal of an Indiana middle school teacher who had expressed her opposition to the U.S. war in Iraq to her students, which had led to parent complaints.

Another federal appeals court, in a 2016 decision, upheld the discipline of a Chicago 6th grade teacher whose principal overheard him teaching his students not to use the N-word. The teacher was suspended for five days for using verbally abusive language in front of students, even though the teacher was trying to explain why the word was offensive.

In a 2010 decision, a federal appeals court upheld the non-renewal of an Ohio high school teacher who had centered a lesson around banned books that included some selections parents considered inappropriate. The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, analyzed the competing interests at stake in that case, Evans-Marshall v. Tipp City Exempted Village School District.

On the one side, doesnt a teacher have the First Amendment right to choose her own reading assignments, decide how they should be taught and above all be able to teach a unit on censorship without being censored or otherwise retaliated against? the court said. On the other side, doesnt a school board have the final say over what is taught, and how, in the public schools for which it is responsible? Who wins depends on which line of legal authority controls.

The appeals court sided with the school district, holding that Garcetti applied because the teacher was acting pursuant to her job duties and the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools.

Stuart Stuller, Colorado attorney representing school boards

The 6th Circuit court recently appeared to reaffirm the distinction on academic freedom between college professors and K-12 teachers. A 6th Circuit panel ruled in March that an Ohio college professor who refused to use the preferred pronouns of a transgender student because of the professors religious beliefs was protected by academic freedom.

The college had punished a professor for his speech on a hotly contested issue, in violation of the First Amendment, the court held. The court said in a footnote that its 2010 ruling in Evans-Marshall was limited to schoolteachers.

Fossey, the University of Louisiana professor, said the Supreme Courts Garcetti decision has been really hostile to the view that K-12 teachers have any control over the curriculum or even their teaching style.

Stuart Stuller, a veteran Colorado attorney representing school boards, said the rationale for districts supervision of teachers on-the-job speech is that when the teacher is standing in front of the classroom, that teacher is a representative of the state.

The First Amendment doesnt necessarily give subordinate employees the right to do something the supervisor has told him not to do, said Stuller, who is nonetheless sympathetic to academic freedom concerns of teachers and once wrote a law journal article on the subject.

Teachers and other public school personnel still have First Amendment protections for speaking out on matters of public concern outside of their job duties, even when those matters involve the operations of their employer.

That was underscored by another controversy this month in the 82,000-student Loudoun County, Va., district outside Washington, D.C. A state judge ordered the reinstatement of an elementary school teacher who was suspended after speaking up at a school board meeting against a proposed gender-equity policy that would include requiring teachers to address transgender students by names and pronouns used by those students. The district received several complaints about the teachers public comments and placed him on administrative leave because of the disruptive impact his remarks had on his school, court papers say.

The state judge on June 8 issued a temporary injunction in favor of the teacher after analyzing the case under Pickering v. Board of Education of Township High School District 205, a 1968 Supreme Court decision that a teachers speech on a matter of public concern is protected under the First Amendment if it outweighs the employers interests in workplace efficiency and lack of disruption.

Alice OBrien, the general counsel of NEA, said the new state laws limiting what teachers and schools may say about racism and other matters are certain to be challenged in court, though likely not on the grounds of teacher academic freedom.

These are situations where the state legislature is prohibiting the instruction of certain concepts in the schools, she said. These laws are aimed at instruction across a state, and that is a different context than that of an individual teacher right.

Such challenges will likely be based on the 14th Amendments equal-protection clause because the measures were enacted with racial animus, OBrien said. And they could be subject to challenge based on the First Amendment right of students to receive information, she said.

OBrien pointed to rulings that resulted in the invalidation of an Arizona law that barred public schools from instituting an ethnic studies curriculum, such as by holding classes or programs that promoted resentment toward a race or class of people, that were designed primarily for pupils of a particular ethnic group, or that advocated ethnic solidarity instead of treating students as individuals.

The law was pushed for by a Republican state superintendent of public education and was targeted at a Mexican American Studies program in the Tucson school district and challenged in court.

The U.S. Court of Appeals for the 9th Circuit, in San Francisco, in 2015 held that the law was not unconstitutional on its face, but allowed the challenge to proceed based on evidence of discriminatory purpose in the enactment and enforcement of the law. A federal district judge in 2017 struck down the Arizona law on equal protection and First Amendment grounds.

These statutes want schools to impart a particular view of America, said OBrien. They are intended, at the very least, to chill speech. And they seem to be having that impact.

Originally posted here:

If Critical Race Theory Is Banned, Are Teachers Protected by the First Amendment? - Education Week

It may be dubbed the "Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard" (PRO-SPEECH) Act, but a new bill from Mississippi Republican Sen. Roger Wicker is anything but First Amendment-friendly. Wicker's measure would ban huge swaths of online content moderation, forcing private internet forums to host speech that may currently violate their terms of service and be considered hateful, harassing, vulgar, or otherwise undesired.

The bill would also take aim at freedom of association and free markets, disallowing some tech servicessuch as app stores and cloud computing companiesfrom choosing what products they offer or what businesses they'll contract with.

Introduced Thursday, the so-called PRO-SPEECH Act strikes at the heart of First Amendment protections, compelling companies under threat of sanction from the government to platform messages they otherwise wouldn't.

Essentially, Wicker's bill is "net neutrality" legislationsomething that was vehemently opposed by Republicans of yorebut for online content platforms, search engines, and marketplaces rather than internet service providers. The bill would make it illegal for digital entities to block or impede access to "any lawful content, application, service, or device" that doesn't interfere with platform functionality or "pose a data privacy or data security risk to the user."

The bill would also explicitly ban taking action against a user based on "political affiliation." Tech companies could no longer choose to ban, for instance, Nazi content or decline to host web forums devoted to white supremacist political groups. Web forums couldn't choose to be exclusively for conservative users, or progressive users, or so on.

"Approximately zero people actually want" the Internet this bill would create, Daphne Keller of the Stanford Cyber Policy Center commented on Twitter.

Notably, the bill would exempt from some provisions any company that "publicly proclaims to be a publisher."

It has been a common conservative delusion that Section 230 of the Communications Decency Act already turns on some sort of vital legal distinction between "publishers" on one hand and "platforms" on the other, with platforms having a responsibility to remain neutral conduits for content and only publishers allowed to set any rules for what types of content they will carry. This is not actually the way that Section 230 works.

But "Senator Wicker is trying to make the ridiculous and nonsensical 'publisher/platform' distinction an actual thing, despite the fact that this is blatantly unconstitutional," writes Mike Masnick at Techdirt. "The end result is that this bill leans into the moderator's dilemma and creates two types of internet sites: complete garbage dumpswhere no moderation can take place, and Hollywood-backed squeaky clean productions. It wipes out the parts of the internet that most people actually like: the lightly moderated/curated user-generated aspects of social media that enable lots of people to have a voice and to connect with others, without being driven away by spammers, assholes, and abusers."

In addition, the bill also redefines anti-competitive behaviorthe backbone of antitrust law violationsto include any large company blocking, prohibiting, or discriminating against any platform that competes with any part of its own business. No matter how many of a company's rules the quasi-competitor violated, it would have to be allowed.

The Federal Trade Commission (FTC) would have broad discretion to enforce the law, making it ripe for politics-based abuse. Small internet businesses would be exemptexcept for when the FTC decides they are not.

Violations would be considered unfair and deceptive practices under the Federal Trade Commission Act. Anyone could register a complaint with the FTC alleging a violation, creating a massive new undertaking for the commission as internet moderation police and a massive new layer of bureaucracy for tech companies, which would be required to respond to every complaint.

In essence, the law would quite literally make a federal case out of every aggrieved YouTuber who gets demonetized, business that thinks its search results aren't high enough, troll who feels he deserves a right to say whatever he wants online, etc. If tech companies don't issue a reparation to the complainant, the FTC would be forced to open an investigation within five months.

Link:

The PRO-SPEECH Act Is Anything but First Amendment-Friendly - Reason

First Amendment

By Debra Cassens Weiss

June 9, 2021, 1:20 pm CDT

For the last 18 years, Florida resident Donald Burns has been living in his 10,000-square-foot mansionwhich he describes as a traditional homeon the Atlantic Ocean in Palm Beach, Florida. Photo from the 11th U.S. Circuit Court of Appeals at Atlantas June 8 decision.

A federal appeals court has rejected constitutional claims by a Florida resident who sued when a town rejected his plans for a new beachfront mansion that would be dissimilar to nearby homes.

The 11th U.S. Circuit Court of Appeals at Atlanta ruled against Donald Burns of Palm Beach, Florida, in a 2-1 decision Tuesday.

The court said the town did not violate Burns free speech rights under the First Amendment and did not violate his rights to due process and equal protection under the 14th Amendment.

Past news coverage from the Palm Beach Post described Burns as a telecommunications mogul. He sold his existing mansion for $28 million last year while the appeal was pending, according to the Real Deal.

Burns had sought to tear down his traditional beachfront mansion and to replace it with a mansion nearly twice the size in midcentury modern style. Burns said the new mansion would reflect his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer possessions.

The town of Palm Beachs architectural review commission had rejected Burns plans under a mandate to achieve comprehensive cohesiveness in development. Applying its criteria, the commission said the proposed mansion was not in harmony with proposed developments in the general area and was too dissimilar to nearby homes.

Judge Robert Luck, an appointee of former President Donald Trump, wrote the majority opinion, joined by Judge Edward Carnes, an appointee of former President George H.W. Bush. Judge Stanley Marcus, an appointee of former President Bill Clinton, dissented.

In my view, Marcus wrote in dissent, the First Amendmentthe most powerful commitment to think, speak and express in the history of the worlddoes not permit the government to impose its majoritarian aesthetic whims on Burns without a substantial reason.

The majority concluded that there was no First Amendment violation because there was no great likelihood that some sort of message would be understood by those who viewed Burns new beachfront mansion.

The majority also found no violation of Burns 14th Amendment rights because the commissions criteria were not unconstitutionally vague and were not applied differently to Burns.

The majority criticized Marcus dissent for discussing architectural styles and articles that werent part of the case record.

The majority said it was concluding that Burns new mansion was not expressive conduct protected by the First Amendment while saving for another day the harder issue of whether residential architecture can ever be expressive conduct.

We have not decided, as the dissenting opinion says, that Philip Johnsons Glass House isnt expressive conduct, but tattooing is; we have not decided that Jeffersons Monticello isnt protected under the First Amendment, but nude dancing is; and we have not decided that the Empire State Building doesnt meet the Johnson test [for protective expression], but elevator music does.

In U.S. Supreme Court cases protecting expressive conduct, the conduct could be viewed, the appeals majority said.

The conduct was not like the proverbial tree, which was out of view because it was deep in the forest, the majority wrote.

In Burns case, however, the message that Burns sought to convey through his proposed mansions simple lines and minimal decorative elements would be shielded from view by a limestone wall, a louvered gate and heavy landscaping.

A viewer cannot infer a message from something the viewer cannot view, the appeals court said. From Day One, Burns wanted to conceal from his neighbors what he now says is his message.

Even if viewers could see Burns new mansion through the landscaping, there is still no great likelihood that they would understand that the home conveyed some sort of message, the appellate majority said.

A reasonable observer would view Burns new mansion as a really big house but not as an expression of some sort of message, the court said.

The decision, Burns v. Town of Palm Beach, upheld a grant of summary judgment to Palm Beach, Florida.

Florida Politics had coverage of the opinion.

See the article here:

Florida resident loses First Amendment appeal in suit over rejection of his mansion plans - ABA Journal

An attorney who specializes in First Amendment litigation said mediation by a universitys public relations team can cause staff and student media censorship, but it may be necessary for the department to sit in during interviews depending on the sensitivity of the topic.

Greg Greubel is a staff attorney at the Philadelphia-based Foundation for Individual Rights and Education, a nonpartisan organization working to protect the rights of faculty and students across the U.S.

Greubel said requiring staffers to forward interview request from student media to Marcom can be discouraging to student journalists, and it also hampers the rights of university employees.

It is a violation of the employees First Amendment rights to have this buffer between speaking to journalists and the university, said Greubel, who spoke about student journalists rights at the virtual convention of the Society of Professional Journalists March 26 .

Greubel said employees are not legally obligated to speak to student journalists, but its necessary they do.

Employees have the right to speak out on matters of public concern, Greubel said. They have the right to talk about it, and its actually very important that they do talk about it.

Greubel said he believes employees should not go through Marcom before being interviewed by student media. He said its censorship on the employees end. As a result of that, its secondary censorship on student journalists, he said.

Because they cant speak to you, that means you cant do your work, Greubel said. Its a secondary effect but does it cause censorship? I think so.

Greubel also said having Marcom intervene is a common practice across the country, though it may be an obstacle for student journalists.

If you direct all the communications through some university department, then theyre not going to be able to speak, maybe at all. If they do, its going to be a tarnished version, Greubel said.

Going through department heads strains credibility from employees, he said.

Greubel said having to notify Marcom of an interview request puts the employee on notice that theyre being monitored, in some sense.

If what these communications departments are trying to do is actually facilitate truth-telling through employees views, thats one thing, Greubel said. But if what theyre trying to do is to act as a sort of buffer and require university employees to speak through the same voice, then its a problem.

Veronica Valdes, The Mesquites spring editor-in-chief, said she once experienced Marcom sitting-in during an interview with Mari Fuentes-Martin, vice president of student success and engagement, last fall. Valdes was working on a story about events being rescheduled because of a COVID-19 spike on campus.

Valdes said she was surprised Jeanette De Diemar, vice president for advancement and external relations, attended the interview since she had called De Diemar for guidance on who to contact. De Diemar had said Fuentes-Martin would be the best source.

Valdes was told Fuentes-Martin was a university spokesperson, she said those people shouldnt need to go through Marcom since theyre already a university spokesperson.

De Diemar said choosing if a member of Marcom should sit in depends on the complexity of the story and how helpful marcom can be.

There are occasions where theres an overlap because Im an official university spokesperson, its part of my role, De Diemar said. There are people who by the nature of their role they would have participated in an interview.

De Diemar said this is not a common practice. Determining if a member of the department should sit in depends on the complexity of the story.

Greubel acknowledged it may be appropriate for Marcom to monitor an interview, depending on the topic.

It is naive to say they should never sit in, Greubel said.

See original here:

University employees have right to speak to student journalists, First Amendment expert says | Texas A&M University-San Antonio | TAMUSA - The...

When I first read the recently published article by Chaplain (Major) David Evans entitled, Starting again: A call for chaplains to reconcile and properly support LGBTQI+ soldiers, my initial response was one of appreciation. I shared the article on Facebook and stated, The entire First Amendment is brought to bear in this one publication. A sensitive but important discussion. Chaplain Evans appropriately states, A chaplain is at the service of all soldiers. This is absolutely true. The oath I have taken to support and defend the Constitution of the United States means my charge as a chaplain a religious leader is to champion the free exercise of religion that the First Amendment to the Constitution protects. However, each chaplains interpretation of sacred texts and traditions pertaining to the capability of performing religious rites is a matter of the free exercise of religion.

Department of Defense Instruction (DoDI) 1300.17, Religious Liberty in the Military Services states, no Service member may require a chaplain to perform any rite, ritual, or ceremony that is contrary to the conscience, moral principles, or religious beliefs of the chaplain. At the core of the DoDI is the Free Exercise Clause of the First Amendment to the United States Constitution. The Free Exercise Clause and the associated Establishment Clause together comprise the concept of freedom of religion inherent in the First Amendment. The Establishment Clause is the first segment which states, Congress shall make no law respecting an establishment of religion. The Free Exercise Clause is the second segment which estates, [Congress shall make no law] prohibiting the free exercise thereof. In other words, the Establishment Clause prevents the state and federal governments from mandating religious practices. In contrast, the Free Exercise Clause prevents state and federal governments from inhibiting the religious practices of individuals.

To the heart of Chaplain Evans article, how the Chaplain Corps supports LGBTQI+ soldiers is of utmost importance. Recent command initiatives to enforce the standard that all persons are treated with dignity and respect are imperative. Existing policy, doctrine and regulation guide the Chaplain Corps and mandate every soldier, dependent and civilian is treated with dignity and respect. Nonetheless, as chaplains care for those whom we serve we must hold fast to our religious convictions in order to be the religious leaders the military requires us to be. If religious convictions do not matter for the religious leader, then there is reason to believe those religious convictions should not matter for anyone. Religious leaders and communities should not only be permitted, but should be encouraged, to interpret their sacred texts and traditions and to act in accordance with those interpretations (so long as their actions are not criminal and do not impinge on the Establishment Clause).

One of the issues at stake is whether or not a persons sexual orientation is a matter of religion. Most religious leaders worldwide believe sexual orientation is a matter of religious importance. The Department of Defense understands individual expressions of sincerely held beliefs (conscience, moral principles, or religious beliefs) which do not have an adverse impact on military readiness, unit cohesion, good order and discipline or health and safety as being protected under the banner of religious liberty (DoDI 1300.17). The argument Chaplain Evans presents is essentially that if the Chaplain Corps is not careful, individual expressions of sincerely held beliefs by chaplains regarding normative practices of sexuality could collectively have an adverse impact on the military. This is a fair caution, but could also be misconstrued. If state and federal governments begin requiring chaplains to transgress sincerely held beliefs, then we will restrict the free exercise of religion of the very people whom we have charged with the task of protecting the free exercise of religion.

In summary, the Chaplain Corps should unequivocally set the standard for treating people with dignity and respect; and there is room for improvement here. However, as chaplains, we should champion the free exercise of religion of those who have taken the oath to serve as chaplains just as much as we champion the free exercise of religion of those for whom we have taken the oath to serve. If we do not account for the free exercise of religion for all soldiers regardless of category, we will undermine our ability to advocate for others.

Chaplain (Capt.) Jordan Henricks is an active duty Army Chaplain currently serving with the 75th Ranger Regiment.

Commentary: The opinions expressed in this article are my personal opinions and do not represent the United States Army or the Army Chaplain Corps

Editors note: This is an op-ed and as such, the opinions expressed are those of the author. If you would like to respond, or have an editorial of your own you would like to submit, please contact Military Times managing editor Howard Altman,haltman@militarytimes.com.

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Responding to a call for chaplains to reconcile and properly support LGBTQI+ soldiers - ArmyTimes.com

American democracy is in danger, and American journalism needs to respond with more than slogans.

Editorials are a good start and the Boston Globe has nowset the bar awfully damn high.

But the mightiest weapon in the journalistic arsenal isn't opinion columns.It's relentless news coverage.

Journalists have the unique ability to ask questions on behalf of the public, demand answers, assess truthfulness, decry stonewalling and do it all again the next day.

To rescue and revive democracy, news organizations don't need to "take sides" with one party or another, and they don't need to publish articles full of opinions.

What the top editors in our top newsroom must do, however, is set the agenda. They need to decide what is newsworthy, and then bring their resources to bear accordingly.

That's the true power of the press.

And those editors should start with an easy one by relentlessly covering the Justice Department's recent outrageous seizures of reporters' communication records. That means news storiesevery dayuntil the public is able to fully understand how they were authorized and by whom, how they were allowed to proceedand what will prevent similar occurrences in the future.

Assaults on freedom of the press aren't "inside baseball." These are the front lines. This is a huge story. As David Boardman, dean of the journalism school at Temple University, tweeted:

The formerly secret subpoenas were for records from reporters at the New York Times, the Washington Post and CNN, in order to identify their confidential sources. Two of the subpoenas were accompanied by outrageous gag orders. (Gag orders on news organizations!)

Their overdue public disclosure by the Justice Department in recent weeks made major headlines and spawned a number of angry opinion pieces.

But with the notable exception of the Times, there's been relatively little news coverage since then. (On Thursday night, the Times continued its streak with abarnburnerreport that Trump's DOJ had similarly subpoenaed communications records of Democrats on the House Intelligence Committee.)

What's particularly missing even from the Times coverage is the application of pressure on the current Justice Department leadership to fully explain what happened, when, why and how. That should be the drumbeat, every day.

Although the various leak investigations originated during the Trump administration, they extended well into Biden's. A huge element of this story is why those investigations weren't immediately abandoned and condemned and why the Justice Department under Merrick Garland won't come clean about what happened.

Some of the opinion pieces were powerful, particularly the one from the normally invisible Washington Post publisher,Fred Ryan.He appropriately pointed out that "the Biden Justice Department not only allowed these disturbing intrusions to continue it intensified the government's attack on First Amendment rights before finally backing down in the face of reporting about its conduct."

In fact, it was the Biden administration thatimposedthe gag order on the New York Times's lawyer, preventing him from disclosing the government's efforts to newsroom leaders or the four reporters whose email logs were at issue.[UPDATE June 13, 12:30 p.m.: Technically, the gag order was imposed by a federal magistrate judge, responding to an application from the Justice Department. The March gag order amended aJanuary orderthat had fully gagged Google from talking to anyone about the records request. TheMarch orderallowed Google to tell the Times's lawyer, but imposed a gag on him as well.]

"This escalation, on Biden's watch, represents an unprecedented assault on American news organizations and their efforts to inform the public about government wrongdoing," Ryan wrote.

The Justice Department on June 5 announced that it would no longer use subpoenas or other legal methods to obtain information from journalists about their sources, elicitingsome new headlines.

But that should not have placated anyone in the news business. What it should have prompted is a slew of additional questions about how this new policy would be applied in an accountable fashion.

AsAnna Diakun and Trevor Timmwrote in the Columbia Journalism Review, the new policy is "a significant improvement to the DOJ's previous approach. Still, there are questions to be answered. When will the DOJ officially update its news-media guidelines to reflect this change? And as theTimesnoted, the DOJ's statement appears to leave some 'wiggle room' surrounding the circumstances in which the policy applies, limiting it to when journalists are 'doing their jobs.' What exactly does this mean?"

Their final, critical question: Who will the Justice Department considera member of the news media?

None of the news reports I saw about the policy shift showed anything likethe appropriate skepticism. For that, you had to watchtelevision interviews with some of the reporters who were directly targeted.

On CBS Now, for instance, Times reporterMatt Apuzzomade the crucial point that there's no reason to take the Justice Department at its word until it fully explains itself. "First we have to understand what happened. How did it happen? Why did it happen?"

"This is becoming a bipartisan pattern," Apuzzo said.

Journalism groups are justifiably concerned.Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press, said in a statement that "serious unanswered questions remain about what happened in each of these cases."

And by coincidence, the esteemed free-press advocate Joel Simonannounced this weekthat he will step down after 15 years as executive director of the Committee to Protect Journalists. He told the Times: "Governments are increasingly taking aggressive action toward journalists, and there are very few consequences."

In addition to the three demands for records in leak investigations, we also learned in the last few days about a Biden-era demand from the FBI that deserves more coverage. The FBI issued a subpoena to USA Today, demanding it hand over identifying information about readers who had accessed a particular story online during a 35-minute window.

The request related to a Feb. 2 articleabout the shooting death of two FBI agents while serving a warrant in a child exploitation case in Florida. The 35-minute window in question was more than 12 hours after the shooter had killed himself inside his barricaded apartment.

The request was bizarre and inexplicable, and should have been blocked by superiors. Instead, it was only withdrawn "after investigators found the person through other means, according to a notice the Justice Department sent to USA TODAY's attorneys Saturday."

How could that have happened?

Some of the ideally relentless news coverage would also involve questions for the news executives who received subpoenas.

Why did New York Times lawyer David McCraw honor such an obviously absurd gag order? (The order, imposed in March, related to records that were four years old, evidently as part of a fishing expedition aimed to show that former FBI director James Comey disclosed a "secret" document that wasmost likely a hoax. I am not making that up.)

Why, once McCraw was allowed to discuss the request with Times publisher A.G. Sulzberger and CEO Meredith Kopit Levien, didtheyhonor the gag order? Why didn't they just call a press conference?

There are much tougher questions for CNN, which in its own reporting buried the fact that it caved to the Justice Department'srequestfor reporter Barbara Starr's email logsfor June and July 2017.

CNN lawyerDavid Vigilante, honoring a gag order the whole time, apparently fought the Justice Department's request from May 2020 all the way through Januaryof this year. He even won a court ruling that CNN shouldn't have to turn over the logs of emails that were internal to the company.

But that, apparently, was what CNN cared about most. So six days into the Biden administration, CNN turned over a list of Starr's external email contacts during the specified time period to the Justice Department.

CNN'sofficial lineis that those were "essentially records that the government already had from its side of these communications."

Sorry, that doesn't cut it.

Transparency and accountability for everyone!

Read more:

To save democracy, let's start by saving the First Amendment - Salon

A lot of people want to make statements with their homes.

But a sharply divided federal appeals court Tuesday rejected arguments that a property owners First Amendment rights were violated when plans for a mansion were rejected in tony Palm Beach.

The 2-1 decision by a panel of the 11th U.S. Circuit Court of Appeals stemmed from a 2013 decision by longtime Palm Beach resident Donald Burns to tear down a 10,063 square-foot oceanfront home and replace it with a larger mansion with a mid-century modern design, according to the ruling.

According to Burns, the mid-century modern design communicated that the new home was clean, fresh, independent, and modern a reflection of his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions, the rulingsaid. It also communicated Burns message that he was unique and different from his neighbors.

But Palm Beachs architectural review commission rejected the plan in 2016, spurring Burns to take the dispute to federal court. He argued, in part, that the rejection violated his First Amendment rights.

A federal district judge sided with the town, prompting Burns to go to the Atlanta-based appeals court. And in a 70-page majority opinion and a 66-page dissent, appellate judges Tuesday sparred about Burns claims and First Amendment issues ranging from tattoos to Jeffersons Monticello home.

Judge Robert Luck, in a majority opinion shared by Judge Ed Carnes, wrote that the proposed mansion was not expressive conduct protected by the First Amendment and pointed to issues such as a wall and landscaping that would have blocked the home from public view.

One day, we may even find some residential architecture to be expressive conduct, Luck wrote. But Burns proposed new mansion is not Monticello or Versailles, no matter how much the dissenting opinion wants to compare it to those historic homes. Its just a really big beachfront house that cant be seen, located on a quiet residential street in Palm Beach, Florida.

But dissenting Judge Stanley Marcus referred to numerous famous architectural sites and drew contrasts with court precedents about protecting the First Amendment.

As I see it, the majoritys resolution of this case cannot easily be squared with well-settled law recognizing the First Amendments protection of artistic expression in all of its forms, Marcus wrote. An analysis of this kind would yield the odd conclusion that a tourists drunkenly obtained tattoo is art protected by the First Amendment, while Philip Johnsons Glass House is not; coin-operated devices by virtue of which a customer could sit in a booth, insert a coin and . . . watch a live dancer, usually nude, are protected, Monticello is not; anodyne elevator music is protected, the Empire State Building is not. These distinctions seem to me to be indefensible.

That statement drew a retort from Luck.

To dispel any lingering confusion, we emphasize again that we are not deciding whether residential architecture can ever be expressive conduct protected by the First Amendment, Luck wrote. We have not decided, as the dissenting opinion says, that Philip Johnsons Glass House isnt expressive conduct but tattooing is; we have not decided that Jeffersons Monticello isnt protected under the First Amendment but nude dancing is; and we have not decided that the Empire State Building doesnt meet (a test in a U.S. Supreme Court case known as Texas v. Johnson) but elevator music does. Not at all.

Marcus also asserted that the architectural review commission hated the proposed design of the mansion.

The question in this case is whether a government commission created by the Town of Palm Beach with the Orwellian moniker ARCOM may prevent Burns from expressing his philosophy and taste through the architecture of his home and create a work of art on land he owns solely because a majority of the members of the commission do not like the way it looks, Marcus wrote.

That also drew a retort from Luck in a footnote.

The dissenting opinion uses the name ARCOM for the architectural review commission and then calls the name it uses Orwellian, the footnote said. If by Orwellian the dissenting opinion means any government agency that administers regulations impacting our lives, then the architectural review commission is as Orwellian as the state board of therapeutic massage, the local dog catcher and every one of the alphabet soup of departments and agencies and bureaus in Washington, D.C.

The Palm Beach Daily News, citing a deed,reported in Octoberthat Burns, a telecommunications entrepreneur, sold his home for $28 million. That came six months after the appeals court heard arguments in the case, and Tuesdays ruling did not address a sale of the property.

___

Republished with permission from News Service of Florida.

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First Amendment arguments rejected in mansion fight - Florida Politics

DANBURY The YouTuber who has recorded his interactions with police and security guards at the Danbury Library and City Hall claims they tried to violate his first and fourth amendment rights.

But experts say the situation is more complicated.

Theres a lot more nuance than that, said Laszlo Pinter, the citys attorney.

Danbury police department has launched an internal investigation into its officers response captured in YouTuber SeanPaul Reyes video where he refused to stop recording at the Danbury Library, despite a library policy banning filming without permission.

A second video, where police are called when the YouTuber declines to give his name to a security guard at Danbury City Hall, is not part of the investigation, Chief Patrick Ridenhour said.

The five officers from the library incident, including a city sergeant who the YouTuber says he intends to sue, remain on duty, Ridenhour said.

Screenshots from a video from the YouTube channel Long Island Audit showing interactions with a security guard, police and other officials at Danbury City Hall on Thursday, June 10, 2021. Danbury police were called to City Hall on Thursday, June 10, 2021 after YouTuber SeanPaul Reyes refused to give his name to the security guard in order to enter the building. Reyes left after the town clerk was called down to the lobby so he could file his intent to sue a city sergeant.

Screenshots from a video from the YouTube channel Long Island Audit showing interactions with a security guard, police and other officials at Danbury City Hall on Thursday, June 10, 2021. Danbury police were called to City Hall on Thursday, June 10, 2021 after YouTuber SeanPaul Reyes refused to give his name to the security guard in order to enter the building. Reyes left after the town clerk was called down to the lobby so he could file his intent to sue a city sergeant.

Screenshots from a video from the YouTube channel Long Island Audit showing interactions with a security guard, police and other officials at Danbury City Hall on Thursday, June 10, 2021. Danbury police were called to City Hall on Thursday, June 10, 2021 after YouTuber SeanPaul Reyes refused to give his name to the security guard in order to enter the building. Reyes left after the town clerk was called down to the lobby so he could file his intent to sue a city sergeant.

Screenshots from a video from the YouTube channel Long Island Audit showing interactions with a security guard, police and other officials at Danbury City Hall on Thursday, June 10, 2021. Danbury police were called to City Hall on Thursday, June 10, 2021 after YouTuber SeanPaul Reyes refused to give his name to the security guard in order to enter the building. Reyes left after the town clerk was called down to the lobby so he could file his intent to sue a city sergeant.

Screenshots from a video from the YouTube channel Long Island Audit showing interactions with a security guard, police and other officials at Danbury City Hall on Thursday, June 10, 2021. Danbury police were called to City Hall on Thursday, June 10, 2021 after YouTuber SeanPaul Reyes refused to give his name to the security guard in order to enter the building. Reyes left after the town clerk was called down to the lobby so he could file his intent to sue a city sergeant.

It has not been necessary to put anyone one on leave, he said in an email.

Ridenhour declined to comment further, citing the ongoing investigation. Hearst Connecticut Media requested through the Freedom of Information Act the records of the officers involved in the library incident, as well as the body camera footage.

Both videos are edited.

I only see one side of the story, Mayor Joe Cavo said. Until I get all the facts, Im going to reserve my comment and see what happens with the rest of the information and how things proceed.

Danbury plans to keep its building policies in place, although officials are reviewing the incidents.

First Amendment law is very complicated, Cavo said. Fourth Amendment law is very complicated. Were trying to sort out how that relates to our responsibilities here as a public agency, and were working out those details now within inside counsel and outside counsel.

Reyes is part of a social media movement known as First Amendment Audits, where people film in public buildings, such as libraries or municipal centers, in an attempt to showcase how officials abide by the U.S. Constitution and the First Amendment, which protects freedom of speech and the press.

Allied Universal, the security company that the Danbury guards in the videos work for, trains its staff on how to respond to these auditors, the company spokeswoman said.

Guards take a specific training module on these audits when they join the company. The module includes appropriate practices for how to handle these situations, spokeswoman Vanessa Showalter said.

Guards are informed if auditors are in their area and get additional tips if so, she said.

The company has seen auditors the most in California, where Allied Universal, is based, she said.

Their whole goal is to provoke on-site security professionals in order to illicit a negative response, she said. The reason why they do this is so they can get a lot of likes on their Facebook and their social sites in order to get money. That is their whole goal.

Reyes told Hearst Connecticut Media on Friday that he aims to exercise his rights and educate police through his videos. He said he aims to start an outreach program in Connecticut where activists like himself could shed light on rights violations and is thinking about starting a YouTube channel to teach kids about these issues.

He said he has not taken any criminal justice courses and learned what he knows through YouTube and other online sources.

Im a big believer of knowing your rights, he said.

His channel, Long Island Audit, has about 24,200 subscribers as of Monday evening, up from around 22,800 subscribers on Friday. His video at Danbury Library has 66,000 views, while the City Hall video has 49,000 views.

Heck, if it does nothing other than make government employees aware that we the people have the right to observe that which is observable by the naked eye, it cant be a bad thing from where we sit, said Dan Barrett, legal director with the American Civil Liberties Union of Connecticut.

Cavo said hed rather see a collaborative approach.

I see what this guys doing and he has the right to do that, he said. For me, I dont know. I think in this world we need to figure out how to work together instead of instigate.

Some police officers know Constitutional law better than others, Barrett said.

Its never been clear to me that the training, if any, that they get on the free speech and the right to memorialize has any effect, he said.

Individuals have the right to film in and from public places, Barrett said.

Anywhere that you are allowed to be as a member of the public and anything you can see with your own eyes, its fair game, he said.

But the rules get trickier in places that are more sensitive, he said. Libraries can be places where people research or conduct private activities, such as research health related information, he said.

So, its unclear whether the librarys policy banning filming or photography would stand in court.

It depends a little bit on whats restricted where and what the librarys interests are, Barrett said.

The library policy states that filming or photography is not allowed inside the building without permission from the library director. Patrons may not take photos or videos of other library users without their permission.

Motivations dont matter when it comes to the First Amendment, Barrett said.

It doesnt particularly matter from the First Amendment standpoint, Barrett said. Thats all fair game. What matters is whether the library has a good enough reason and an appropriately tailored policy.

In a second video uploaded Sunday, Reyes goes to City Hall to file his intent to sue a Danbury police sergeant but refuses to give his name to the security guard, as required for visitors under COVID-19 precautions.

I shouldnt have to surrender my Fourth Amendment right to enter a public building, Reyes says.

Dont go there, the security guard says.

Dont go there, Reyes says. This is the United States of America.

I am the guard here, the security officer says. I dont make the rules. I enforce the rules. This is what they want me to do. They want me to take your name, give you a card and you go upstairs.

Collecting names to contact trace for COVID-19 in public buildings would likely not violate peoples protection from unreasonable search and seizure under the Fourth Amendment, Barrett said.

In the time of COVID mercifully waning though it is in Connecticut it may be the case that collecting names is O.K., providing there is sufficient restriction on the use of those names, Barrett said.

Its fine if Danbury throws out the names after 14 days, but not if the city uses them to track if those people are paying their taxes, for example, he said.

Pinter argued the YouTubers claim about the Fourth Amendment violation is misplaced. Asking for someones name to enter a public building for COVID or security reasons is reasonable, he said.

Asking for identification is not a seizure if its reasonable, Pinter said. If its reasonable, its not a search and seizure under the Fourth Amendment.

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A YouTuber tried to 'audit' how well Danbury follows Constitutional rights. The answer is complicated. - Danbury News Times

CLEVELAND, Ohio -- U.S. Rep. Jim Jordan is teaming up with a conservative youth organization and a Florida congresswoman to start a new congressional caucus to push back on woke cancel culture on college campuses.

Jordan says he wants to defend freedom for Americans everywhere. Were talking about what that means on This Week in the CLE.

Listen online here.

Editor Chris Quinn hosts our daily half-hour news podcast, with Leila Atassi, Jane Kahoun and me.

Youve been sending Chris lots of thoughts and suggestions on our from-the-newsroom text account, in which he shares what were thinking about at cleveland.com. You can sign up for free by sending a text to 216-868-4802.

Here are the questions were answering today:

Why is Ohio Congressman Jim Jordan teaming up with a youth group in defense of the First Amendment?

Why is Dennis Kucinich, who was tossed out of office as Cleveland mayor after one 2-year-term 40 years ago, running to get the job anew?

What do we know about the collision between the USS Cod submarine and a Coast Guard Cutter along the Cleveland lakeshore. The Cod is not even operable, is it?

Why are Ohio Senate Republicans trying to stop cities from offering free broadband access? Isnt the general consensus today that we need to make sure everyone has low-cost, high-speed broadband as a basic need?

What did Northeast Ohio spend its stimulus checks on over the past year?

Is a Rule 29 decision coming down in a Cleveland murder case involving the brother of a famous gymnast, in which three people were killed at a party?

Want more? You can find all our past episodes here.

We have an Apple podcasts channel exclusively for this podcast. Subscribe here.

Do you get your podcasts on Spotify. Find us here.

If you use Stitcher, we are here.

RadioPublic is another popular podcast vehicle, and we are here.

On Google Podcasts, we are here.

On PodParadise, find us here.

And on PlayerFM, we are here.

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How, exactly, does Ohio Congressman Jim Jordan want to protect speech on college campuses? This Week in the C - cleveland.com

American democracy is in danger, and American journalism needs to respond with more than slogans.

Editorials are a good start and the Boston Globe has now set the bar awfully damn high.

But the mightiest weapon in the journalistic arsenal isnt opinion columns its relentless news coverage.

Journalists have the unique ability to ask questions on behalf of the public, demand answers, assess truthfulness, decry stonewalling and do it all again the next day.

To rescue and revive democracy, news organizations dont need to take sides with one party or another, they dont need to publish articles full of opinions.

What the top editors in our top newsroom must do, however, is set the agenda. They need to decide what is newsworthy, and then bring their resources to bear accordingly.

Thats the true power of the press.

And those editors should start with an easy one by relentlessly covering the Justice Departments recent outrageous seizures of reporters communication records. That means news stories every day until the public is able to fully understand how they were authorized and by whom, how they were allowed to proceed, and what will prevent similar occurrences in the future.

Assaults on freedom of the press arent inside baseball. These are the front lines. This is a huge story. As David Boardman, dean of the journalism school at Temple University, tweeted:

The formerly secret subpoenas were for records from reporters at the New York Times, the Washington Post and CNN, in order to identify their confidential sources. Two of the subpoenas were accompanied by outrageous gag orders. (Gag orders on news organizations!)

Their overdue public disclosure by the Justice Department in recent weeks made fairly major headlines and spawned a number of angry opinion pieces.

But with the notable exception of the Times, theres been relatively little news coverage since. (The Times on Thursday night continued its streak with a barnburner report that Trumps DOJ similarly subpoenaed communications records of Democrats on the House Intelligence Committee.)

Whats particularly missing even from the Times coverage is the application of pressure on the current Justice Department leadership to fully explain what happened, when, why and how. That should be the drumbeat, every day.

Although the various leak investigations originated during the Trump administration, they extended well into Bidens. A huge element of this story is why those investigations werent immediately abandoned and condemned and why the Justice Department under Merrick Garland wont come clean about what happened.

Some of the opinion pieces were powerful, particularly the one from the normally invisible Washington Post publisher, Fred Ryan.Ryan appropriately pointed out that the Biden Justice Department not only allowed these disturbing intrusions to continue it intensified the governments attack on First Amendment rights before finally backing down in the face of reporting about its conduct.

In fact, it was the Biden administration that imposed the gag order on the New York Timess lawyer, preventing him from disclosing the governments efforts to newsroom leaders or the four reporters whose email logs were at issue. [UPDATE June 13, 12:30 PM: Technically, the gag order was imposed by a federal magistrate judge, responding to an application from the Justice Department. The March gag order amended a January order that had fully gagged Google from talking to anyone about the records request. The March order allowed Google to tell the Timess lawyer, but imposed a gag on him as well.]

This escalation, on Bidens watch, represents an unprecedented assault on American news organizations and their efforts to inform the public about government wrongdoing, Ryan wrote.

The Justice Department on June 5 announced that it would no longer use subpoenas or other legal methods to obtain information from journalists about their sources, eliciting some new headlines.

But that should not have placated anyone in the news business. What it should have prompted is a slew of additional questions about how this new policy would be applied in an accountable fashion.

As Anna Diakun and Trevor Timm wrote in the Columbia Journalism Review, the new policy is a significant improvement to the DOJs previous approach. Still, there are questions to be answered. When will the DOJ officially update its news-media guidelines to reflect this change? And as the Timesnoted, the DOJs statement appears to leave some wiggle room surrounding the circumstances in which the policy applies, limiting it to when journalists are doing their jobs. What exactly does this mean?

Their final, critical question: Who will DOJ count as a member of the news media?

None of the news reports I saw about the policy shift showed any of the appropriate skepticism. For that, you had to be watching television interviews with some of the reporters who were directly targeted.

On CBS Now, for instance, Times reporter Matt Apuzzo made the crucial point that theres no reason to take the Justice Department at its word until it fully explains itself. First we have to understand what happened How did it happen? Why did it happen?

This is becoming a bipartisan pattern, Apuzzo said.

Journalism groups are justifiably concerned. Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press, said in a statement that serious unanswered questions remain about what happened in each of these cases.

And by coincidence, the esteemed free-press advocate Joel Simon announced this week that he will step down after 15 years as the executive director of the Committee to Protect Journalists. He told the Times: Governments are increasingly taking aggressive action toward journalists, and there are very few consequences.

In addition to the three demands for records in leak investigations, we also learned in the last few days about a Biden-era demand from the FBI that deserves more coverage. The FBI issued a subpoena to USA Today, demanding it hand over the identifying information about readers who had accessed a particular story online during a 35-minute window.

The request related to a Feb. 2 article about the shooting death of two FBI agents while serving a warrant in a child exploitation case in Florida. The 35-minute window in question was more than 12 hours after the shooter had killed himself inside his barricaded apartment.

The request was bizarre, inexplicable, and should have been blocked by superiors. Instead, it was only withdrawn after investigators found the person through other means, according to a notice the Justice Department sent to USA TODAYs attorneys Saturday.

How could that have happened?

Some of the ideally relentless news coverage would also involve questions for the news executives who were subpoenaed.

Why did New York Times lawyer David McCraw honor such an obviously absurd gag order? (The gag order, imposed in March, related to records that were four years old, evidently as part of a fishing expedition aimed to show that former FBI director James Comey disclosed a secret document that was most likely a hoax. I am not making that up.)

Why, once McCraw was allowed to discuss the request with Times publisher A.G. Sulzberger and CEO Meredith Kopit Levien, did they honor the gag order? Why didnt they just call a press conference?

And there are much tougher questions for CNN, which in its own reporting buried the fact that it caved to the Justice Departments request for email logs for reporter Barbara Starr for June and July 2017.

CNN lawyer David Vigilante, honoring a gag the whole time, apparently fought the Justice Departments request from May 2020 all the way through January 26. He even won a court ruling that CNN shouldnt have to turn over the logs of emails that were internal to the company.

But that, apparently, was what CNN cared about most. So six days into the Biden administration, CNN turned over a list of Starrs external email contacts during the specified time period to the Justice Department.

CNNs official line is that those were essentially records that the government already had from its side of these communications.

Sorry, that doesnt cut it.

Transparency and accountability for everyone!

Read this article:

The journalistic crusade to save democracy starts with the First Amendment - Press Watch

When you really stop and think about it, what was done was unconscionable.

The Justice Department of the United States of America went after the phone and email records of journalists from some of the nations most respected news outlets. Not only that, they did so in secret.

The journalists had done nothing wrong. They broke no laws. And yet in an effort to root out leaks within the government, as well as who knows what else, the DOJ targeted the records of journalists from The New York Times, The Washington Post and CNN.

And, I repeat, this happened in the United States of America, where the very First Amendment of the Constitution includes the freedom of the press. It started under the Donald Trump administration but apparently continued under Joe Bidens first couple months as president.

On Monday, CNN Pentagon reporter Barbara Starr wrote that the time was finally right to speak out on the Trump administrations months-long efforts to secretly gain access to tens of thousands of my 2017 work and personal emails and my work and personal phone records.

As Starr pointed out, she was not the subject of an investigation, and there was no suggestion that she had done anything wrong. The same goes for the other reporters targeted. Starr said she had no idea what the Trump administration was looking for.

Biden said reporters records will no longer be seized in his administration, and new policies will be put in place. The New York Times Charlie Savage wrote, In testimony last week, (Attorney General Merrick) Garland said the new policy will be the most protective of journalists ability to do their jobs in history. But many details remain unresolved, including how broadly the new protections will apply and whether he will implement it via a method that is easy or difficult for a future administration to roll back.

Or, as Starr wrote, Unless new protections are codified, this could all happen again to any journalist.

Starr added she is genuinely horrified by what happened. All of this is a sheer abuse of power in my view first against CNN and myself, since our work is and should always be protected by the First Amendment. But more importantly and more significantly, it is an abuse against the free press in this country, whether you are a television network correspondent or a reporter at a small town newspaper uncovering wrongdoing.

John Demers, the head of the Justice Departments National Security Division, announced to staff he will step down at the end of next week. Demers is a holdover from the Trump administration and was expected to step down eventually. But, The New York Times Katie Benner wrote, Mr. Demerss departure also comes as Democrats and First Amendment advocates have attacked the Justice Department following revelations that prosecutors supervised by Mr. Demers seized the records of reporters from The New York Times, The Washington Post and CNN and of top House Democrats while investigating leaks of classified information.

On Monday, Garland met with leaders of the three news organizations whose journalists had their records confiscated.

The meeting included New York Times publisher A.G. Sulzberger and deputy general counsel David McCraw; Washington Post publisher Fred Ryan along with executive editor Sally Buzbee and general counsel Jay Kennedy; and CNN was represented by Washington bureau chief Sam Feist and general counsel David Vigilante.

Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press, spoke on behalf of the news organizations, adding that the meeting was off the record. Brown added, We are very encouraged by what we heard inside the meeting.

Sulzberger put out a statement that said, In todays meeting, we sought a full accounting of what happened and requested that the Department of Justice codify that it will no longer seize journalists records during leak investigations. We were encouraged by Attorney General Garlands statements but we will continue to push until our concerns are addressed.

In his statement, Ryan said, It was encouraging to hear the Attorney Generals commitment to the first amendment rights of all Americans. While we welcome the new policy to refrain from using compulsory legal procedures to seize reporter records in leak investigations, we feel steps must be taken to ensure it is durable and binding on future administrations. It is also essential that there be a full and complete public accounting of all the actions taken against our news organizations, including the secret subpoenas and gag orders, and an explanation as to what has been done with the information that was seized.

Its a little curious that three news organizations fighting for press rights would agree to an off-the-record conversation. According to The Washington Posts Matt Zapotosky, Brown said, We wanted to have a conversation inside the building where all sides could fully and freely share views.

In a statement, the Justice Department said, In the coming weeks the Attorney General will develop and distribute to the field a memo detailing the current policy. The Attorney General committed to working with members of the news media to codify the memo setting out these new rules into regulation.

Russian President Vladimir Putin being interviewed by NBC News. (Courtesy: NBC News)

During an exclusive interview with NBC News Keir Simmons, Russian President Vladimir Putin dismissed accusations that the Russian government or hackers were behind cyberattacks in the U.S.

Putin told Simmons, We have been accused of all kinds of things. Election interference, cyberattacks and so on and so forth. And not once, not once, not one time, did they bother to produce any kind of evidence or proof. Just unfounded accusations.

In addition, Putin denied putting out a hit on political rival Alexei Navalny, but would not guarantee that Navalny would get out of prison alive.

Look, Putin said, such decisions in this country are not made by the president.

When asked whether it was a coincidence that several other political rivals had been assassinated in recent years, Putin said, We dont have this kind of habit of assassinating anybody.

In an article for NBCNews.com, Simmons, Corky Siemaszko and Yuliya Talmazan wrote, Throughout the interview, Putin relied on the Kremlins time-tested strategy of deflecting criticism by pointing out Americas failures, suggesting that criticism from the West was hypocritical because every country, including Russia and the U.S., acts in its own self-interest.

Also notable were Putins kind words for Donald Trump. Putin told Simmons, Mr. Trump is an extraordinary individual, talented individual. Otherwise he would not have become U.S. president. He is a colorful individual.

NBC News interview comes as Biden and Putin prepare to meet this week in Geneva.

I mentioned last week how all the major news anchors ABCs David Muir, CBSs Norah ODonnell and NBCs Lester Holt will be anchoring tonight from Geneva ahead of the summit. In addition, Fox News Channels John Roberts also will be in Geneva, anchoring America Reports (1 to 3 p.m. Eastern) today and Wednesday.

Ahead of Wednesdays meeting, here are some notable works to get you ready:

I actually found this to be a brilliant headline despite the you dont say aspect to it. The headline in The Washington Post: Coronavirus infections dropping where people are vaccinated, rising where they are not, Post analysis finds.

The report from Dan Keating, Naema Ahmed, Fenit Nirappil, Isaac Stanley-Becker and Lenny Bernstein also says, States with lower vaccination also have significantly higher hospitalization rates, The Post found. Poorly vaccinated communities have not been reporting catastrophic conditions. Instead, they are usually seeing new infections holding steady or increasing without overwhelming local hospitals.

While that might be encouraging, the Post wrote, But experts worry that unvaccinated people are falling into a false sense of security as more transmissible variants can rapidly spread in areas with a high concentration of unvaccinated people who have abandoned masking and social distancing.

Its a detailed report that requires your attention.

Christiane Amanpour. (Photo: Evan Agostini/Invision/AP)

Christiane Amanpour, CNNs chief international anchor and host of PBSs Amanpour & Company, said on-air Monday that she has been diagnosed with ovarian cancer. She said she had major surgery and is now undergoing several months of chemotherapy for the very best possible long-term prognosis, and Im confident.

Amanpour told viewers, Im telling you this in the interest of transparency but in truth really mostly as a shoutout to early diagnosis to urge women to educate themselves on this disease, to get all the regular screenings and scans that you can, to always listen to your bodies, and of course to ensure that your legitimate medical concerns are not dismissed or diminished.

Amanpour, 63, has been with CNN since 1983 and is widely recognized as one of the top journalists in the world. Her career also includes moderating ABC News This Week and being a reporter for CBS News 60 Minutes. Bianna Golodryga, CNNs senior global affairs analyst, had been filling in for Amanpour on CNN for the past month.

In true professional and Amanpour fashion, she concluded her on-air statement by saying, So, thats my news. Now lets get to the news.

This week is the 50th anniversary of The New York Times publishing the Pentagon Papers the U.S. Department of Defenses history of the countrys involvement in Vietnam from 1945 to 1967 that revealed how the Johnson Administration had lied to Congress and the American people about its involvement in the Vietnam War.

The New York Times is commemorating one of the most important newspaper stories and, maybe, the biggest journalistic scoop of all time with an amazing package: The Pentagon Papers at 50: A Special Report.

It includes an absolutely gripping and stunningly-well designed feature: Were Going to Publish The Oral History of the Pentagon Papers.

The package is elite and fascinating to all audiences, not just journalists and those who follow the journalism business closely.

Have feedback or a tip? Email Poynter senior media writer Tom Jones at tjones@poynter.org.

The Poynter Report is our daily media newsletter. To have it delivered to your inbox Monday-Friday, sign up here.

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Opinion: The US government crossed a line by seizing reporters' records. What happens now? - Poynter

Weirdly, this is relevant.(TIZIANA FABI/AFP/Getty Images)

Its been quite a morning for the Congressional brain trust, with dueling tweets from GOP freshmen Reps. Madison Cawthorn and Lauren Boebert splaining to the Real Murikans about CONSTITUTION, HOW DOES IT GO.

First off, the 25-year-old wunderkind from North Carolina would like a word with the Pope on employment practices at the Holy See.

Does Mr. Cawthorn think Vatican City is in Massachusetts? In which godless liberal enclave outside San Francisco or Boston does the good congressman believe its located?

Hes also wrong as a matter of American law. But then again, the EEOCs reach doesnt extend to the Vatican so probably best that we move on to whatever this nonsense is.

Ah yes, the sacred Constitution. Handed down by Jesus on Mount Sinai, unchanged since dinosaurs walked the earth.

If Ms. Boebert could take just a moment out of arranging loaded firearms into a crche, she might just peruse Article V of said Constitution, which sets out a procedure to rewrite the parts you dont like.

To wit:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress;

And by the Congress, they mean that place where she works thanks to her fellow Colorado voters.

Or Ms. Boebert can just read this ATL article we wrote in September when Tennessee Sen. Marsha Blackburn tweeted, We will never rewrite the Constitution of the United States, in apparent ignorance of the 27 times we did just that, and having forgotten all those stupid marriage and flag-burning amendments she herself proposed.

Reps. Cawthorn and Boebert will have to up their game if they want to top Sen. Blackburn in the Congressional Dumbassery Olympics. But theyre off to a roaring start!

Wait, wait! Cawthorns back for another try.

Dont sleep on this kid hes really going places.

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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Freshman Rep. Madison Cawthorn Schools Pope On First Amendment - Above the Law

One of the cool things about Poynters beautiful offices in St. Petersburg, Florida, is something you see just before you step into the building. On the sidewalk, embedded in marble, is the First Amendment:

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 also had a prominent place on another building. It was embedded on a giant wall at the Newseum the interactive museum in Washington, D.C., that celebrated the media, the freedom of the press and expression and the First Amendment. But the Newseum closed to the public at the end of 2019.

And now, in a heartbreaking symbol, the First Amendment on the Newseum building is being dismantled. A troubling reminder of how many Americans now view the media and the freedom of the press, wouldnt you say?

No announcement has been made, but there is hope it will be reassembled at another location.

Heres a little more information on the First Amendment wall by the company that built it.

This piece originally appeared in The Poynter Report, our daily newsletter for everyone who cares about the media. Subscribe to The Poynter Reporthere.

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The removal of the First Amendment from the Newseum building is a disheartening sight - Poynter

In the aftermath of the January 6 riots on the Capitol, we have witnessed a change in how tech companies view, regulate speechand control speech. In the days and weeks since January 6, multiheaded pseudo private actors have fundamentally altered the bedrock of American democracy free speech. No longer can private companies like Facebook, Twitter, Google, Instagram, Snapchat and others hide behind the veil of their private shield, because they created themselves for the sole purpose of being thrust into the mitochondria of all that is public.

According to a CRS Report prepared for members and committees of Congress, the Supreme Court will only apply the First Amendment against private parties (companies) if they have a sufficiently close relationship to the government. This will occur where a private company finds itself under extensive state regulation.

While some plaintiffs have argued that various internet companies should be treated as state actors for the purposes of the First Amendment, when those companies decide to dispose of or restrict access to their speech, courts have rejected their claims. In other words, just because social media companies hold themselves open for use by the public, that is not enough to make them subject to the First Amendment.

But the Constitution of the United States together with its deafeningly powerful First Amendment did not foresee the age of social media and what it would do to the public, how it would intertwine public and private interests of communities and how the lines between state actors and private actors would not only become blurry but also almost invisible. The existing doctrine doesnt fit the times; it teases, it mercilessly flirts with the laurels of the First Amendment.

We all marvel at the Constitutions elasticity, designed for us by those who knew nothing of Facebook, but everything about the abyss of the futures unpredictability. After all, what was the intent behind the First Amendment? So that American citizens would never feel the imposition of powerful actors infringing on one of their inalienable rights, their freedom of expression.

In the 1700s and 1800s, the most powerful actors in the country were the state actors. America had just freed itself from the clutches of the British monarch. The government itself was the most powerful actor that was connected to the public. Therefore, within the amendment, people were protected not from actions of private parties but from actions of the State.

It is not so today. The world, and especially America, is controlled by private monopolies of social media giants, which regulate our entire existence (as well as the governments existence). The internet, along with social media, did not just shake up the old world: it remolded it. All of this was done for the public. These social media titans not only provide services for the public, such as search engines, they also serve as vessels through which the public carries its thoughts and influences the thinking of others.

David L. Hudson Jr. writes in his article In the Age of Social Media, Expand the Reach of the First Amendment that two key justifications for robust protection of the First Amendment right to freedom of expression are the marketplace of ideas and individual self-fulfillment. These justifications dont require government presence. Powerful private actors can infringe on free expression rights as much as public actors. This is exactly what Facebook, Twitter and others were guilty of when they decided to silence President Trump after the January 6 riots.

David L. Hudson, Jr. continues, when an entity like Facebook engages in censorship, individuals dont get to participate in the marketplace of ideas and are not allowed the liberty to engage in individual self-fulfillment just like when the government entity engages in censorship.

In his article, Hudson also states that even though the state action doctrine traditionally limits the application of the First Amendment to private actors, that classification is outdated. He cites a 2017 case in which the U.S. Supreme Court recognized the new reality of identifying the new kind of public space. A new reality has been molded, where, when a private actor has control over communications and online forums, these private actors are analogous to a governmental actor.

The ogres of social media have erected platforms for exchange of public information. In his article, The Great Tech Panic, Nicholas Thomson writes about the role of social media on freedom of expression: In 2009, Facebook declared its mission to make the world more open and connected. In her essay, The Free Speech Black Hole: Can The Internet Escape the Gravitational Pull of the First Amendment? Ann Marie Franks writes, This free speech rhetoric has for years been employed to justify [tech] companies laissez-faire approach to controversial content, from terrorist training videos to revenge porn.

So why is it that suddenly, in the wake of the events of January 6, the entire tech industry decided to ban Trump from their sites? They do so by the cowardly act of taking refuge under the protective shield of their private status, knowing full well that under modern circumstances, their private actor status is a fiction, no more than a smoking mirror.

Tech companies private actor status is a fiction, no more than a smoking mirror.

These companies behave dishonestly when on the one hand they take advantage of the fruits of the First Amendment and give Holocaust deniers, criminals, terrorists, porn stars, law professors, comedians, addicts, movie stars, pop musicians, politicians, reality TV stars and many others the opportunity to present their uncensored sentiments and ideas, but then at the same time decide to silence a particular individual. The tactic is liable to have the most severe consequences.

The First Amendment is not a device that we can use as a cherry-picking mechanism. The First Amendment is not a neat amendment; it is not a kind amendment; its a messy amendment. It is not about people, its about substance; it isnt even about speech itself, it is about self-expression, it is about the individuality not of one person, but of a country, and therefore of each person individually.

Social media companies have become public actors, and, as such, they have no right to censor those who post or otherwise express unpopular opinions. Afterall, there are always ways to contradict those unpopular, dubious, immoral views; this is one of the great strengths of social media.

I knew the words of the Declaration of Independence and the First Amendment in Russian and English even before I began school. I understand that media companies are trying to appease, to do what sells best; when Trump sold best, they sold him too. But social media insulted American democracy when it silenced one individual capriciously and arbitrarily. Social media must stop playing games. It is either for all people which is why it is free and available to all who have access to it or for the privileged few, like a private club, in which case a club owner is within his rights to impose specific rules for his club members.

America ceases to be America when it not only denies peoples ability to self-express but also when it does so by taking advantage of the publics trust in its democratic values. American freedom of speech protects, it frees, it tantalizes, but it also bites. There can be no compromise about it.

The First Amendment was created to oppose tyranny because within it is hidden, just like in all law perhaps, the power of balance. Everyone wants to be heard, everyone wants to tell a story their own story and so as long as no-one is muted (even if some decide to remain deaf) there will be balance, and where there is balance there is a chance that tyranny may be avoided.

Anya Gillinson is a published author of poetry in Russian and English. She practices law in New York, where she lives with her husband and two daughters.

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Comments on: Flirting with the First Amendment - Jewish Journal

The complicit, liberal media is full of themselves with their hyperventilating over the record-setting second impeachment attempt brought on by the Trump-hating Democratic congressional leadership. And even though it might make for some good political theater, like a Greek tragedy playing out on a modern stage, it has little basis in reality and even less direct effect on Summit County.

It would be easy to digress into an expose of the Dems double standard on display with their rules for thee but not for me hypocrisy. For example, its OK for Maxine Waters tirade exhorting her mob to harass Trump officials or Obamas Attorney General Eric Holders reference to street violence in the fight against conservatives. Yet when President Donald Trump encourages supporters to exert their Bill of Rights freedom of assembly, freedom of speech and freedom to petition the government, hes blamed for an insurrection.

But Id rather focus on the main issue at hand that affects all of us in Summit County:

The No. 1 priority should be lifting the lockdown under which we have been suffering. What started out as a two-week drill that we all accepted to flatten the curve has evolved into a full years worth of unauthorized, totalitarian emergency powers curtailing our First Amendment civil liberties.

Its time for our local town councils and county commissioners to say enough is enough and reject the governors continued power play, which is being used to move the goal posts and keep us under Big Brothers control.

At the risk of being impeached for inciting violence or calling for an overthrow of the government, I ask all patriots to peacefully and patriotically march on the Summit County courthouse and let your county commissioners know how deeply you object to the current lockdown of local businesses, Main streets, schools and resort life in general. Be numerous, be vocal and be peaceful, but above all, be adamant about demanding that you are mad as hell, and youre not going to take it anymore.

Our great American republic operates best when decisions are made closest to we the people. A one-size-fits-all policy from a dictatorial White House or governors mansion misses the true heartbeat of the local citizens whose needs should be represented at the town and county levels of government.

Admittedly, this is no easy task for local town council members and county commissioners to defy autocratic, and likely unconstitutional, mandates issued from authorities on high. Yet we the people have suffered enough at the footstool of these draconian emergency powers, and we need courageous representatives to stand up and protect our rights to operate our businesses at 100% capacity, fully open our schools for in-person learning and run our towns without the dehumanizing mask mandates. We need our town councils and county commissioners to shed their protective bureaucratic insulation and boldly do what we elected them to do: protect our civil liberties and give us back our freedom!

Anecdotally, we are on the verge of losing more bar and restaurant businesses as these owners can barely make ends meet under a 25% or 50% occupancy restriction. Remove the shackles and get the big government knee off our throats so we can once again breathe the fresh air of American capitalism and get back to providing for our struggling families. No more government-imposed censor, cancel or control.

The current occupants residing in the White House would like to keep us under their thumb with 40-plus executive orders that place government control over our daily decisions, tank the robust Trump economy and replace it with dependency on their elite largesse, e.g., airline passengers are now being threatened with civil or criminal charges for failure to obey Bidens national mask mandate. This is our destiny unless we have the moral and political courage to resist their totalitarian ideology.

The resistance begins locally with our elected town and county representatives. They need to exert their power, endorsed by a grassroots popular movement, to tell the state and national elitists that we vehemently object and will no longer silently comply. We need to put boots on the ground and protesters in the streets to demand the guarantee of our First Amendment freedoms.

Otherwise, we are a sad bunch of deplorable subjects content to willingly sacrifice our liberties for a sense of perceived security. As Ben Franklin observed, a nation willing to sacrifice individual freedom for temporary government security is sure to have neither.

Kim McGaheys column Conservative Common Sense publishes Tuesdays in the Summit Daily News. McGahey is a real estate broker, tea party activist and Republican candidate. He has lived in Breckenridge since 1978. Contact him at kimmcgahey@gmail.com.

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Opinion | Kim McGahey: It's time to demand our First Amendment freedoms - Summit Daily News

Justice Oliver Wendell Holmes Jr. is widely considered, along with Justice Louis D. Brandeis, to be one of the guardians of the First Amendment. He authored many of the seminal decisions that explained why our country should protect freedom of speech. For example, he first used the terminology clear and present danger 100 years ago to help draw the line between protected and unprotected speech in Schenck v. United States(1919).

But Holmes produced another phrase in his Schenck opinion that may be even better known a phrase deeply enmeshed in our cultural lexicon: shouting Fire in a theatre. The case involved the prosecution of Charles T. Schenck and Elizabeth Baer for distributing leaflets urging people to refuse to comply with the draft. Schenck, the general secretary of the Socialist Party, opposed U.S. involvement in World War I and believed that conscription was akin to slavery.

In the leaflets, Schenck and Baer mentioned the 13th Amendment to the Constitution, which outlawed slavery and involuntary servitude. In other words, the political dissidents believed that conscription into the armed forces amounted to a form of indentured servitude. The leaflets urged no violence and included the phrase Assert Your Rights.

Nevertheless, Justice Holmes affirmed the convictions for a unanimous Supreme Court. He explained:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting Fire in a theatre and causing a panic The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is question of proximity and degree.i

In other words, Justice Holmes and his colleagues found that passing out leaflets against conscription in the armed forces created a clear and present danger during wartime and thus was not protected under the First Amendment.

Lets measure this against what President Trump did on January 6, 2021. He knew that there would be a crowd of his supporters in Washington, D.C., supporting his false claims that he had won the election in November 2020 and that the election had been stolen from him. He invited the crowd to go down with him to the Capitol and make their and his views known. Although he did not go with them, he knew with the hour that the crowd had broken into the Capitol and put Senators and Congressmen at risk of injury. He knew specifically that he had called out Mike Pence. He learned that Mike Pence was in danger and did nothing about it. And he did nothing to dissuade the crowd from violence in the Capitol and against members of Congress. The result was five deaths in the building.

Measure this against the crime of passing out leaflets and arguing that Congress was enslaving men through conscription. The clear and present danger was that the defendants might convince a significant number of men to refuse conscription and thereby undercut American war efforts. But a lot of that was based solely on guesswork. The defendants did not know that they would be successful. Nor did they know how successful they might be. Yet the fact that they might be successful with detriment to the society was enough to convict them, at least in time of war.

Trump, on the other hand, was clearly guilty of attracting the crowd to the Capitol and sending them down to the Capitol. He may not have known that he would be successful in convincing them to attack the Capitol, but that was his goal. He was happy when the crowd acted with violence and refused to try to dissuade them from their acts. What he did and did not do was a clear and present danger to the Capitol and the people in it, far more than the defendants in the case Holmes was writing about.

Then, too, a President has taken an oath of office to protect and defend the nation. I do not think that his acts must constitute a clear and present danger to the government which he has sworn to protect and defend. He is permitted to speak his mind, but not in a manner which would place the government in any danger. Trump could have written and published his speech without putting the government in danger. He could exercise his First Amendment rights in a manner which would not be likely to lead to violence.

The defense posed by his lawyers was clearly incorrect, and those who voted for him (many of whom were lawyers) were just doing party politics. Trump had violated his oath of office, and nothing in the constitution protected him from impeachment.

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The Trump impeachment and the First Amendment - NationofChange

JOHNSON CITY, Tenn. (WJHL) Many in the Tri-Cities are expressing anger and frustration over the ETSU mens basketball team kneeling during the national anthem.

ETSU President Dr. Brian Noland addressed the action for the first time on Friday afternoon, saying he and the university have faced tremendous pushback from the community.

Several local lawmakers expressed their disappointment regarding the kneeling as well on Friday, saying theyve heard significant outcry from their constituents.

The team was photographed kneeling ahead of Mondays game at Chattanooga.

Following ETSUs Board of Trustees meeting, Noland addressed whether players on the mens basketball team would be allowed to kneel during the next game against VMI, a military college, next Wednesday.

I do not anticipate that we will take any actions during that game that would reflect negatively upon our opponents. We value our colleagues across the Southern Conference. And we deeply respect the sacrifices that the student-athletes at VMI are making, and that they will make upon graduation, said Noland.

Speaking to News Channel 11, state Sen. Rusty Crowe (R-Johnson City), Rep. Rebecca Alexander (R-Jonesborough), and Rep. Tim Hicks (R-Gray) expressed their disappointment in the teams decision to kneel.

This kind of activity will not be tolerated, Crowe said.

As a former ETSU athlete and veteran, Crowe said he was ashamed to see the image of the team kneeling.

When you wear the uniform, youre not just representing your team, your school, your state. Youre representing the entire community. I think we should make sure those young athletes understand what it means, he said.

Alexander is also an ETSU graduate.

I think the university is basically in shock right now. I dont think they were expecting that out of their players, she said. When donors call and say, Im not going to give money anymore to the school, Im not coming to any more games, those are things that hurt ETSU.

Alexander said she supported First Amendment rights, but didnt think the national anthem was an appropriate time to kneel.

There are Black people that have died in this country for our freedom. This is Black History Month. We should be celebrating those men, and not dampering by taking a kneel, and not respecting the flag theyve died for, she said.

Hicks said he was also disappointed in the kneeling, but he also wants to hear the personal stories of the athletes.

I would just like to hear exactly what happened in life to bring them to kneel at that ballgame that night. Until we start hearing peoples stories, and get to the truth about this, and get to whats really real, I think its extremely hard for anybody to judge, said Hicks.

Hicks said further, I have full faith in the trustees and Brian Noland. Im sure that theyre upset. Im sure theyre trying to figure out what to do.

Noland said the matter will continue to be addressed.

Ill meet with Coach Shay again here over the course of the next couple of days. And were going to continue to work through this as a community, said Noland.

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This kind of activity will not be tolerated: Local lawmakers react to ETSU players kneeling during anthem - WJHL-TV News Channel 11

An Iowa legislator is proposing to bake into state law an executive order from the Trump administration that banned publicly funded institutions from diversity training that involves race or sex stereotyping or scapegoating which incited criticism from University of Iowa leaders that in turn incensed GOP lawmakers.

Though the federal order has been rescinded by the Biden administration, state Sen. Amy Sinclair, R-Allerton, this week introduced Senate Study Bill 1205, which was advanced by an education subcommittee.

It would bar all K-12 public schools and public universities from offering diversity training that, among other things, says a person, based on his or her sex or race, is inherently racist, sexist, or oppressive.

The bill also bans any training implying that the State of Iowa is fundamentally racist or sexist. And it prohibits training suggesting that a person bears responsibility for actions committed in the past by other members of the same race or sex; or that he or she should feel psychological distress due to his or her race or sex.

The proposed legislation which also would set provisions for discrimination complaints against the public universities and penalties for faculty or K-12 instructors who restrict free speech comes amid a swirl of bills this session aimed at cracking down on Iowas public universities, which Republican lawmakers have slammed for First Amendment violations.

In the fall, an Iowa State University professor came under fire for crafting a syllabus that warned students not to take positions in class opposing things like abortion, Black Lives Matter or same-sex marriage. The University of Northern Iowas student government rejected a student organization applicant that opposed abortion rights, calling it a hate group. And the UI and its dental college issued statements condemning the White House order banning many common diversity training programs.

In a mass email exchange, a UI dental student questioned his dean for condemning the executive order.

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A Legislative Oversight Committee this session slammed all three campuses for those incidents, and lawmakers have proposed bills that would among other things eliminate tenure, require the campuses to poll employees political affiliation and make all instructors post online their class syllabi.

Sinclairs bill also addresses concerns with student government actions on the campuses.

It would order universities to make a student government organizations access to and authority over any moneys distributed to the student government organization by the institution contingent upon the student government organizations compliance with the First Amendment.

If a university determines its student government knowingly and intentionally violated a person or groups First Amendment rights, administrators would have to suspend the student government organizations authority to manage and disburse student fees for two years.

The campus would take over that job during the suspension, according to the bill.

Board of Regents President Mike Richards in November established a group charged with evaluating the boards free speech policy and recommending changes.

After meeting for the last several months, the committee has generated 10 recommendations the regents are scheduled to discuss next week.

Those changes would:

Mandate campuses use a course syllabus statement like ISU imposed in the fall, committing to uphold the First Amendment and vowing that students wont be punished for the content or viewpoints of their speech so long as its germane and expressed appropriately;

Require faculty and instructors review the free speech syllabus statement at the beginning of each course;

Reaffirm university resources wont be used for partisan activities;

Permit universities including their presidents, vice presidents, deans and directors to only take an institutional position on policy matters, in conjunction with the board;

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Bar the universities from allowing discrimination or denial of educational benefits due to a student organization or students viewpoint;

Make the universities post the regent and campus policies and procedures, including how to appeal to the board regarding violations of free expression;

Charge the campuses with adding policies and procedures that include penalties for violations of free expression to its current process for violations of university or board policies;

And mandate annual free speech training for students, faculty and staff.

The committee also recommended establishing a group to review campus free speech complaints, annually evaluate free speech policies, consider training improvements and every two years conduct a campus free speech survey.

Comments: (319) 339-3158; vanessa.miller@thegazette.com

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Bill bans diversity training in schools, universities implying 'Iowa is fundamentally racist or sexist' - The Gazette

At the impeachment trials outset, lawyers for former President Donald Trump filed a 78-page brief at arguing that he should not be convicted by the Senate. Trump is charged with inciting an insurrection through various statements that allegedly encouraged the January 6 putsch targeting the US Capitol.

The briefs primary arguments are constitutional. It claims that the Constitution does not permit an impeachment proceeding against a former official. And the brief also argues that Trump is immune from impeachment because the actions which led to that impeachment are protected by the First Amendment.

The first argument is, at least, not entirely ridiculous. While the majority view among scholars is that a former official may be impeached and convicted by the Senate, there are non-frivolous arguments that a former president is beyond the impeachment power.

But the claim that impeaching Trump violates the First Amendment is risible. There are at least three separate reasons why the First Amendment does not protect Trump.

The first is that impeachment is, essentially, a human resources matter. The Constitution provides that Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office. So, with Trump out of office, the only question in his second impeachment trial is whether he should be permanently disqualified from certain federal jobs.

As the Supreme Court explained in Connick v. Myers (1983), the States interests as an employer in regulating the speech of its employees differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. Though the governments power to discipline employees (or former employees) for aberrant speech is not absolute, it is broad enough to allow Trump to be disqualified from office.

The second reason Trump cannot invoke the First Amendment is that many of the statements he made, which allegedly incited the January 6 attack on the Capitol, are lies. Trump accused Democrats of trying to steal the election, and he falsely claimed that he overwhelmingly won an election that he lost by over 7 million votes.

As the Supreme Court held in New York Times v. Sullivan (1964), the First Amendment does not protect individuals from defamation suits if they make a false claim with knowledge that it was false or with reckless disregard of whether it was false or not. For the reasons explained below, a similar rule should apply to Trump.

Finally, some of Trumps statements such as a January 6 speech where he told his supporters to fight like hell and that youll never take back our country with weakness. You have to show strength and you have to be strong may constitute incitement to imminent illegal action, which is not protected by the Constitution.

Although the First Amendment provides some protection to government employees, those protections are much weaker than those afforded to private citizens, at least when the government seeks to fire or otherwise take a job action against an employee.

Imagine, for example, that a public school hires someone to teach algebra, but this teacher refuses to follow the curriculum and instead spends their class time lecturing their students about 16th-century Japanese art. The First Amendment protects a private citizens right to speak about Japanese art, but the school district could discipline or even fire this teacher for failing to do their job properly even though their only offense was to engage in speech that is normally protected by the Constitution.

Moreover, while the First Amendment provides a relatively robust shield against workplace discipline to rank-and-file government employees, the Constitution offers very little protection to senior officials in political jobs. As a private citizen, for example, Secretary of State Tony Blinken is allowed to criticize President Joe Bidens foreign policy. But as one of Bidens top lieutenants, Blinken may be fired immediately if he makes a disparaging remark about Bidens policies.

As the Supreme Court explained in Branti v. Finkel (1980), if an employees private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the States vital interest in maintaining governmental effectiveness and efficiency.

Thus, Trumps private political belief that he, and not the lawful winner of the 2020 presidential election, should be president must yield to the States vital interest in maintaining governmental effectiveness and efficiency.

Trumps lawyers, for what its worth, primarily rely on the Supreme Courts decision in Bond v. Floyd (1966), which held that the Georgia House of Representatives violated the First Amendment when it prevented state Representative-elect Julian Bond from taking his seat ostensibly because of statements Bond made criticizing the Vietnam War. (Bond, an important civil rights leader, was one of the first Black representatives elected in Georgia after the passage of the Voting Rights Act of 1965; its fairly likely that the real reason he was excluded had less to do with his opinion of the war than the color of his skin.)

The Bond decision is more than a half-century old, and since then weve seen a whole line of cases involving First Amendment protections for government employees, including the Branti case. So its not entirely clear that Bond remains good law. To the extent that Bond is still valid, however, Trumps lawyers argue that cases like Branti only apply to appointed political officials and that Bond provides much more robust protections to elected officials.

Yet even if we accept that elected officials enjoy greater First Amendment protections than political appointees, the Bond case does not help Trump escape impeachment.

In 1960, civil rights activists ran an advertisement in the New York Times alleging that Alabama police used brutal tactics to suppress protests. In response to this ad, an Alabama police official filed a defamation suit against the Times, pointing to minor factual errors in the advertisements text. An Alabama jury handed down a $500,000 verdict against the Times.

But the Supreme Court tossed out that verdict in New York Times v. Sullivan (1964), a seminal decision holding that the First Amendment provides strong protections against defamation lawsuits that threaten free speech. Yet, while these protections are quite robust, especially when a defamation suit involves statements about a public figure that regard a matter of public concern, they are not unlimited.

At the very least, someone can still successfully be sued for defamation if they make a false statement with knowledge that it was false or with reckless disregard of whether it was false or not, according to the New York Times decision.

Although New York Times was a case about defamation and not about the First Amendment rights of elected officials, the Court relied heavily on New York Times when it decided Bond. In explaining why Rep. Bonds rights were violated, the Court said that the central commitment of the First Amendment, as summarized in the opinion of the Court in New York Times Co. v. Sullivan is that debate on public issues should be uninhibited, robust, and wide-open.

Under Bond, the New York Times principle was extended to statements by a legislator.

Two years after Bond, the Court handed down its decision in Pickering v. Board of Education of Township High School District (1968), which established the modern framework governing First Amendment suits by government employees. Pickering involved a public school teacher, not an elected official, but it provides additional support for the view that government employees do not have a First Amendment right to lie.

In Pickering, the Court held that absent proof of false statements knowingly or recklessly made by him, a teachers exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.

New York Times, Bond, and Pickering, in other words, all suggest that a government employees First Amendment rights regardless of whether that employee is elected do not include a right to knowingly make false statements, or to make statements with reckless disregard as to whether they are true or not.

So when Trump riled up his supporters by falsely claiming that the 2020 election was stolen from him, he was not protected by the First Amendment.

In Brandenburg v. Ohio (1969), the Supreme Court held that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Thus, while speakers, including Trump, are protected even if they advocate illegal actions, this protection has limits. If such advocacy is made with the intent to incite imminent lawless action, and if such action is likely to result from a persons speech, then that speech is not protected by the First Amendment.

Brandenburg sets a high bar for incitement prosecutions. But Trumps statements immediately before the January 6 putsch were so egregious that they may overcome this high bar. In a speech that he gave right before his supporters attacked the Capitol, Trump told them that if you dont fight like hell, youre not going to have a country anymore, that they need to take back our country, and that they cant show weakness and have to be strong.

Writing in the Washington Post, Harvard law professor Einer Elhauge argues that these statements constitute constitutionally unprotected incitement, even under Brandenburg:

Although Trump tried to protect himself by stating that he was sure that the crowd would peacefully march to the Capitol, that does not alter the fact that he was inciting the crowd to forcibly stop Congress from counting the certified electoral votes once they got there.

Trump thus clearly incited lawless action (obstructing the operations of Congress is a crime) that was imminent (right after the speech, a short walk away). That he wanted to incite such lawless action is confirmed by reporting that for hours he watched the Capitol attack with pleasure and did not take any steps to stop it by calling out the National Guard or by urging his supporters to stand down.

Again, its far from clear that Trump could be prosecuted in a criminal court for his statements Brandenburg makes it extraordinarily difficult for prosecutors to win such cases. But thats not the issue in Trumps impeachment trial.

The issue in Trumps impeachment trial is whether, given the fact that the government has broad authority to make human resources decisions under the First Amendment, Congress may conclude that Trumps statements were so beyond the pale that he should be disqualified from holding high federal office in the future.

Setting aside these legal flaws in Trumps First Amendment argument, theres also a profound practical reason public officials should be subject to impeachment, even if theyve done nothing more than give an illiberal or anti-democratic speech.

Imagine that someday in the future, a new president is elected after campaigning on a fairly mainstream platform. Then, in the presidents inaugural address, they reveal that the entire campaign was a charade: I am a great admirer of Nazi Germany, the new president declares in their inaugural address, and I plan to use my presidency to build a Fourth Reich.

Should Congress really have to wait until this Nazi president takes some affirmative step to implement this agenda before they can be impeached and removed from office?

As George Mason University law professor Ilya Somin writes, the implication of Trumps argument that he cannot be impeached for his speech is that Congress could not impeach and remove a president who openly proclaimed his intention to turn the United States into a communist or fascist dictatorship, because speech advocating despotism is protected against criminal punishment by the First Amendment if uttered by a private citizen.

But Trump is wrong that he is protected by the First Amendment. The government has far more leeway when it makes personnel decisions than it does when it regulates speech by private citizens. And even if Trump had simply spoken as a private citizen, there is a strong argument that his conduct was so egregious that it could be prosecuted as incitement.

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Rep. Jamie Raskin, D-Md., the lead House impeachment manager, speaks in the Senate on Wednesday. He argued that former President Donald Trump incited the Jan. 6 attack on the U.S. Capitol and that his words are not protected by the First Amendment. Bloomberg/Bloomberg via Getty Images hide caption

Rep. Jamie Raskin, D-Md., the lead House impeachment manager, speaks in the Senate on Wednesday. He argued that former President Donald Trump incited the Jan. 6 attack on the U.S. Capitol and that his words are not protected by the First Amendment.

Lead House impeachment manager Rep. Jamie Raskin, D-Md., opened the second day of impeachment proceedings by rejecting the defense's argument that former President Donald Trump's remarks at a rally prior to the Capitol attack are protected speech under the First Amendment.

Raskin said that Trump was not merely a private citizen walking down the street expressing his support for the overthrow of the federal government. The former constitutional law professor said if Trump were, his speech would be protected.

As president, however, Raskin argued, Trump had a sworn duty that set him apart from every other American to protect the Constitution.

"Look, if you're the president of the United States, you've chosen a side with your oath of office," Raskin said. "If you break it, we can impeach, convict, remove and disqualify you permanently from holding any office of honor, trust or profit in the United States."

Raskin likened what Trump did to a local fire chief who is paid to put out fires but instead orders a mob to descend on a crowded theater and set it ablaze.

And then when calls for help go to the fire department, Raskin continued, Trump "does nothing but sit back, encourage the mob to continue its rampage and watch the fire spread on TV."

Raskin noted that the conservative Federalist Society issued a memo before the start of the impeachment trial that said in part: "The First Amendment is no bar to the Senate convicting former President Trump and disqualifying him from holding future office."

Raskin added that not only are Trump's words not shielded by free speech protections, but what he did on the day of the Capitol attack was the act of "inciter in chief."

"When he incited insurrection on Jan. 6, he broke that oath [of office]. He violated that duty. And that's why we're here today. And that's why he has no credible constitutional defense," Raskin said.

Trump's legal team is expected to rely heavily on a First Amendment defense. Tuesday, defense attorney Bruce Castor asked the Senate, "This trial is about trading liberty for the security from the mob? Honestly, no. It can't be."

"We can't possibly be suggesting that we punish people for political speech in this country," Castor said.

As NPR's legal affairs correspondent Nina Totenberg reported on Tuesday, some legal scholars argue that the question is irrelevant to an impeachment trial.

"The First Amendment's protection of freedom of speech simply doesn't apply to impeachment," Peter Keisler, a former acting attorney general in George W. Bush's administration, says. "This isn't a criminal prosecution which seeks to render someone's speech illegal."

Trump is entitled to hold whatever opinions he wants and to express them, Keisler says. "But he is not entitled to assert a First Amendment defense against removal or disqualification from office ... because the Founders were in particular worried about ... the ways in which demagogues could become tyrants."

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