Letter to the editor: Wolf violated First Amendment, Civil Rights Act – TribLIVE

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Letter to the editor: Wolf violated First Amendment, Civil Rights Act - TribLIVE

Cal Thomas: How to save the media – West Central Tribune

I confess to a certain self-interest in today's column. The media, especially newspapers, are in trouble. Conservatives like myself have been relentless in attacking their collective bias over the years, but as more of them fold or reduce staff, it is crucial the institution be saved.

Margaret Sullivan, a columnist for The Washington Post, has suggested that federal bailout money should be allocated to newspapers. That is an amusing suggestion since the world's richest man, Amazon's Jeff Bezos, owns the Post. He could infuse some of his own money to prop up that reliably liberal paper.In an age when fewer schoolchildren are taught civics, it is useful to recall that the press is the only profession mentioned in the Constitution's First Amendment, which specifically forbids Congress from "abridging" freedom of the press.The Founders were aware of newspapers' tendency to print inaccurate, even outrageous, stories, but as Benjamin Franklin noted: "I am ... for freedom of the press, and against all violations of the constitution to silence by force and not by reason the complaints or criticisms, just or unjust, of our citizens against the conduct of their agents."Newspapers then and one could argue since, along with modern television have been full of factual errors, innuendo and slanted coverage (check out the corrections section of The New York Times over the years, and those are only the mistakes they admit to), but no country has a freer press than the United States. Notice that the first entities totalitarians seek to shut down or take over are newspapers and television stations, which ought to tell us something.In a lengthy Vanity Fair article titled "Can the News Industry Survive Coronavirus," Charlotte Klein, quotes New York Times media columnist Ben Smith, who advocates "a painful but necessary shift" for saving the news business.Smith writes, "Abandon most for-profit local newspapers whose business model no longer works, and move as fast as possible to a national network of nimble new online newsrooms."Facebook has pledged $100 million to help struggling news outlets weather the financial storm caused in part by advertisers not buying ads because of the coronavirus pandemic.Financial subsidies are only a partial solution, like quitting smoking but refusing treatment when diagnosed with lung cancer. The real problem for the major media is the perception that their reporters are biased. It doesn't matter how many times they deny their biases or the frequency with which it's pointed out to them, especially by conservative organizations. The point is that as in any business if customers aren't buying your product, denying the reason why only prolongs your company's downfall.A 2018 Columbia Journalism Review story reported on a Knight Foundation-Gallup Poll: "A majority of those who were surveyed said they had lost trust in the media in recent years, and more than 30 percent of those who identified themselves as being on the conservative end of the spectrum said they had not only lost faith in the media, but they 'expect that change to be permanent.' According to a separate Gallup poll from earlier this year that tracked trust in major institutions, newspapers and television news were among the lowest, exceeded only by Congress."Among the solutions would be for the major media to address the perceived bias by including more conservatives and serious religious people on their staffs as part of "diversity" campaigns. No industry that ignores the concerns of large numbers of the public can long endure. It is vital to a free society, as the Founders believed, that a vibrant, free and, yes, responsible press endure, but the media can only save itself. That salvation will come, if it comes at all, not through financial aid alone, or even mainly, but by media owners coming to their senses and honestly addressing the concerns of people who no longer believe their message.

Cal Thomas can be reached at cthomas@wctrib.com.

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Cal Thomas: How to save the media - West Central Tribune

The EARN IT Act Violates the Constitution – EFF

Since senators introduced the EARN IT Act (S. 3398) in early March, EFF has called attention to the many ways in which the bill would be a disaster for Internet users free speech and security.

Weve explained how the EARN IT Act could be used to drastically undermine encryption. Although the bill doesnt use the word encryption in its text, it gives government officials like Attorney General William Barr the power to compel online service providers to break encryption or be exposed to potentially crushing legal liability.

The bill also violates the Constitutions protections for free speech and privacy. As Congress considers the EARN IT Actwhich would require online platforms to comply with to-be-determined best practices in order to preserve certain protections from criminal and civil liability for user-generated content under Section 230 (47 U.S.C. 230)its important to highlight the bills First and Fourth Amendment problems.

As we explained in a letter to Congress, the EARN IT Act violates the First Amendment in several ways.

1. The bills broad categories of best practices for online service providers amount to an impermissible regulation of editorial activity protected by the First Amendment.

The bills stated purpose is to prevent, reduce, and respond to the online sexual exploitation of children. However, it doesnt directly target child sexual abuse material (CSAM, also referred to as child pornography) or child sex trafficking ads. (CSAM is universally condemned, and there is a broad framework of existing laws that seek to eradicate it, as we explain in the Fourth Amendment section below).

Instead, the bill would allow the government to go much further and regulate how online service providers operate their platforms and manage user-generated contentthe very definition of editorial activity in the Internet age. Just as Congress cannot pass a law demanding news media cover specific stories or present the news a certain way, it similarly cannot direct how and whether online platforms host user-generated content.

2. The EARN IT Acts selective removal of Section 230 immunity creates an unconstitutional condition.

Congress created Section 230 and, therefore, has wide authority to modify or repeal the law without violating the First Amendment (though as a policy matter, we dont support that). However, the Supreme Court has said that the government may not condition the granting of a governmental privilege on individuals or entities doing things that amount to a violation of their First Amendment rights.

Thus, Congress may not selectively grant Section 230 immunity only to online platforms that comply with best practices that interfere with their First Amendment right to make editorial choices regarding their hosting of user-generated content.

3. The EARN IT Act fails strict scrutiny.

The bill seeks to hold online service providers responsible for a particular type of content and the choices they make regarding user-generated content, and so it must satisfy the strictest form of judicial scrutiny.

Although the content the EARN IT Act seeks to regulate is abhorrent and the governments interest in stopping the creation and distribution of that content is compelling, the First Amendment still requires that the law be narrowly tailored to address those weighty concerns. Yet, given the bills broad scope, it will inevitably force online platforms to censor the constitutionally protected speech of their users.

The EARN IT Act violates the Fourth Amendment by turning online platforms into government actors that search users accounts without a warrant based on probable cause.

The bill states, Nothing in this Act or the amendments made by this Act shall be construed to require a provider of an interactive computer service to search, screen, or scan for instances of online child sexual exploitation. Nevertheless, given the bills stated goal to, among other things, prevent online child sexual exploitation, its likely that the best practices will effectively coerce online platforms into proactively scanning users accounts for content such as CSAM or child sex trafficking ads.

Contrast this with what happens today: if an online service provider obtains actual knowledge of an apparent or imminent violation of anti-child pornography laws, its required to make a report to the National Center for Missing and Exploited Childrens (NCMEC) CyberTipline. NCMEC then forwards actionable reports to the appropriate law enforcement agencies.

Under this current statutory scheme, an influential decision by the U.S. Court of Appeals for the Tenth Circuit, written by then-Judge Neil Gorsuch, held that NCMEC is not simply an agent of the government, it is a government entity established by act of Congress with unique powers and duties that are granted only to the government.

On the other hand, courts have largely rejected arguments that online service providers are agents of the government in this context. Thats because the government argues that companies voluntarily scan their own networks for private purposes, namely to ensure that their services stay safe for all users. Thus, courts typically rule that these scans are considered private searches that are not subject to the Fourth Amendments warrant requirement. Under this doctrine, NCMEC and law enforcement agencies also do not need a warrant to view users account content already searched by the companies.

However, the EARN IT Acts best practices may effectively coerce online platforms into proactively scanning users accounts in order to keep the companies legal immunity under Section 230. Not only would this result in invasive scans that risk violating all users privacy and security, companies would arguably become government agents subject to the Fourth Amendment. In analogous cases, courts have found private parties to be government agents when the government knew of and acquiesced in the intrusive conduct and the party performing the search intended to assist law enforcement efforts or to further his own ends.

Thus, to the extent that online service providers scan users accounts to comply with the EARN IT Act, and do so without a probable cause warrant, defendants would have a much stronger argument that these scans violate the Fourth Amendment. Given Congress goal of protecting children from online sexual exploitation, it should not risk the suppression of evidence by effectively coercing companies to scan their networks.

Presently, the EARN IT Act has been introduced in the Senate and assigned to the Senate Judiciary Committee, which held a hearing on March 11. The next step is for the committee to consider amendments during a markup proceeding (though given the current state of affairs its unclear when that will be). We urge you to contact your members of Congress and ask them to reject the bill.

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The EARN IT Act Violates the Constitution - EFF

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

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

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

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


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

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

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

Judge: Suit filed by former Henrico firefighter who was fired after being charged with rioting during Trump’s inauguration can proceed – Richmond.com

A federal judge has ruled that a lawsuit filed against Henrico County officials by a former firefighter who was fired after she was arrested and charged with rioting at President Donald Trumps inauguration can proceed.

Rosa Dianne Roncales, who lost her job in April 2017, filed suit last year alleging her First Amendment free speech rights and her due process rights under the 14th Amendment were violated. The suit named four former fire department superiors and the county as defendants.

In a 36-page memorandum Tuesday, U.S. District Judge M. Hannah Lauck dismissed Henrico County as a defendant but ruled that Roncales suit could proceed against four of her former supervisors in the Henrico Fire Department on the First Amendment claim and against one of the officials on the due process claim.

She is represented by lawyers Nicholas Simopoulos and Jeffrey Fogel. Simopoulos said Wednesday that the ruling means the suit can proceed to discovery and more can be learned about the circumstances surrounding her firing.

Roncales suit says she attended the Jan. 20, 2017, inauguration protest on her own time and wore no clothing or other markings that would identify her as an employee or member of the Henrico Fire Department.

Although Ms. Roncales engaged in no criminal activity, she was swept up in a large-scale arrest of several hundred people by the D.C. Metropolitan Police Department and, subsequently, charged with several offenses. The charges were later dismissed, says the complaint.

The suit says she reported the arrest to a superior on Jan. 23, 2017. While so doing, Ms. Roncales requested that this confidential personnel information not be disseminated. Nonetheless ... her report was immediately disseminated throughout the HFD.

She alleges she was terminated for purported discrepancies in information she provided them during an administrative investigation of her arrest and the information likely provided them by police in Washington, D.C.

She said when questioned by fire officials, she was asked why she went to the protest and whether she agreed with the political view of the protesters. She said that yes, she did agree with the political view of the protesters.

She explained that she had no intention to break the law and when she saw others doing so, she made every effort to get away from them, says the suit.

She denies there were any discrepancies. She says she answered all questions truthfully during the administrative investigation and that the police had given Henrico County inaccurate information.

Her complaint stated that after she properly reported her arrest to a supervisor and he assured her it would be kept confidential, she began receiving phone calls and text messages from members of the Henrico and Petersburg fire departments Roncales was a Petersburg firefighter before joining the Henrico department.

The defendants allegedly asked Roncales why she attempted to disguise herself during the protest. Roncales said she denied disguising herself and said she wore simple, nondescript black clothing because she feared being doxxed by the Alt-right.

Doxxed is a term used to describe the research and publication of personal details so others can target and harass that individual.

Roncales suit says she had never been the subject of any discipline in the past while working in Petersburg or with Henrico and said she was told when fired that her actions had made things harder for female firefighters.

On April 4, 2017, an email was sent out to the entire fire department announcing Roncales termination.

Ms. Roncaless engagement in this protected speech outweighed and, in fact, had no impact upon any legitimate interest the defendants may have had in the operation of the fire department, the suit alleges.

Her suit also alleges that she was deprived of the fair and unbiased opportunity for a hearing, whether name-clearing or otherwise, to rebut the defendants representations, and to present her side of the story.

Her suit seeks unspecified compensatory and punitive damages and the awarding of attorney fees and costs.

In her memorandum Tuesday, Lauck dismissed Henrico County as a defendant, holding that the suit failed to allege an unconstitutional policy or custom that would make the county liable.

Lauck also dismissed the due process claim against the county but allowed that claim to proceed against one of the defendants.

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Judge: Suit filed by former Henrico firefighter who was fired after being charged with rioting during Trump's inauguration can proceed - Richmond.com

Woman accused of running over Holocaust survivor in San Fernando Valley has led a tabloid life – Long Beach Press Telegram

Who is Joyce Bernann McKinney?

To the family of 91-year-old Gennady Bolotsky, McKinney is a 69-year-old woman accused of running over and killing the Holocaust survivor from Ukraine with her truck as he walked his dog in the San Fernando Valley last summer.

To the Los Angeles County mental-health system, shes the patient it received after a judge ruled her mentally incompetent to stand trial.

British tabloid readers of the 1970s, well, to them McKinney was a former Miss Wyoming, the woman behind the so-called Manacled Mormon case in which she was accused of flying to London and kidnapping a Mormon missionary she was infatuated with before the charges went away.

More than a decade ago, she popped up in the news again, this time as tabloid and mainstream-media fodder for reportedly hiring a South Korean firm for $50,000-plus to clone her dead pit bull Booger from skin cells, a move that reaped her five Booger puppies.

Hers is indeed a flamboyant tale, a wild wave of a life that has left its mark on others.

In a 2010 documentary, Tabloid, parts of McKinneys life play out over 87 minutes the slices about the Manacled Mormon case and her public re-emergence years later as the owner of the five cloned pit bulls.

She is a willing participant of the film: bubbly, confident, bright.

Directed by Oscar-winner Errol Morris, Tabloid has McKinney narrating her early days as a North Carolina girl and then as a Wyoming beauty queen who met and fell in love with Kirk Anderson when both attended Brigham Young University in Utah.

In September 1977, Tabloid explains, with Anderson on his Mormon mission in London, McKinney followed him there with an accomplice.

Using a fake handgun and chloroform, the documentary says banking off of news reports at time, the pair allegedly kidnapped Anderson outside a Mormon meeting house, taking him to a cottage and handcuffing him to a bed with London police later arresting her.

She posted bail and, while awaiting trial, became a sensation in British tabloids.

While in London, in 1978, she was photographed with Keith Moon of The Who, one of the worlds all-time drummers, at a premiere of the film Saturday Night Fever. They are cheek to cheek, with one of McKinneys arms around his neck as if she had pulled him close.

McKinney and the accomplice, a friend, slippped out of the country. But, The New York Times and other outlets reported, authorities ending up declining to pursue their extraditions.

I mean, I could never understand the publics fascination with my love life, McKinney says in the Tabloid doc. Im not a movie star. Im just a person, a human being that was caught in an extraordinary circumstance.

In 2011, McKinney attended a question-and-answer session in Salt Lake City following a screening of Tabloid with a pit bull in tow.

I had no idea they were going to do this trashy movie, she told the audience, according to the Salt Lake City Tribune.

Hollywood, she figured, might tell her story as the love story she preferred.

Kirsten Dunst is running around all over Hollywood saying, I have to have this part! she said that day. Im more a Katie Heigl type shes an ex-Mormon like me.

McKinney ended upsuing the Tabloid filmmakers for defamation, invasion of privacy and fraud.

The filmmakers showed the court a release McKinney signed. Their lawyer also argued that she was a limited public figure and that they were covered under the First Amendment to document her story.

The California Court of Appeal tossed out the suit in October 2013, records show: Judge James Steele found the making of the documentary was undeniably defendants exercise of their free-speech rights.

Early in the project, producer Mark Lipson recalled, McKinney gave him a tour of her Riverside home she wanted to show him her truck, which she said had been broken into with research materials for a book about her life stolen.

Lipson took photos of the truck and of parts of her property. Some of those images appear in the final credits of Tabloid.

McKinney was living in borderline squalor, he said. Her day-in, day-out living just seemed to be kind of extreme.

Then, once again, McKinney slipped from public view.

A couple of years ago, authorities in Los Angeles County started coming in contact with her.

Im very familiar with Joyce McKinney, said Stacie Wood-Levin, a senior animal-control officer for the Burbank Animal Shelter. Weve had many check-condition calls on the animals over the years.

The calls came in, Wood-Levin said, from those who reported they had seen dogs confined in crates in McKinneys white pickup with a camper cover.

McKinney had named the five puppies after herself and the South Korean scientists who created them: Booger Hong, Booger Lee, Booger McKinney, Booger Park, and Booger Ra.

Three of those pit bulls would end up at the Burbank shelter, with two euthanized for health and behavioral problems. It is unclear what happened to the fourth and fifth pit bulls.

Just Booger Park, perhaps the last of the worlds first commercially cloned pet dogs, waits these days at the shelter to be adopted.

He had serious behavior issues around other dogs. At 11 years old, he has heath concerns, too.

To the shelter workers, hes just Park.

Park has a sensitive stomach, but he loves to eat, and he loves to play, said Stacey Deveikis, a shelter volunteer. Behavior-wise, hes very sweet.

The shelters website hints at Parks past:

I am a male, gray pit bull terrier mix. The shelter staff think I am about 11 years old. I have been at the shelter since Jun 21, 2019, it says.

Owner unable to care (of him) any longer. Very sweet and affectionate boy. Really spry for his age.

A smiley face emoticon.

He sadly lived in a crate for the last several years, so he will need help with some training/house-breaking. Would do just fine in an apartment, even a studio apartment as long as you have a nice cozy couch for him to nap on.

At 5:35 a.m. on June 17, surveillance video from the Valley Village neighborhood caught Bolotsky getting struck while walking his small, white dog across Magnolia Boulevard.

In the video, the truck plows into the 91-year-old while he is in the middle of a crosswalk. The driver, later determined by police to be McKinney, pauses for a moment, then continues on.

Bolotskys dog is hit, too, but ended up being OK.

The suspect was gone.

Bolotskys death made headlines, with his family appearing on television. There were shots of the suspects truck, too.

I had over 20 leads to follow up on the next day, LAPD Detective Holly Fredo said.

On June 21, a tip that came in was pretty good: There was a truck police might be interested in parked near Hollywood Burbank Airport.

The hit-and-run was just one of dozens of cases Detective Fredo was working. Not all are resolved within days.

Fredo and another detective immediately went out to take a look at the truck.

Approaching the pickup, the detectives could see McKinney in the drivers seat. They pondered how they would get the woman out then she stepped out on her own.

Apparently unaware of the detectives, McKinney dropped her pants and urinated as the officers looked on, Fredo recalled. The detectives then got out of their car and walked up and started questioning her.

Detective Fredo said the woman was evasive, avoiding questions about whether she frequented Valley Village.

The detective said she learnedfrom employees of the Pizza Hut just west of the crash scene that McKinney was a regular there. And security camera footage showed her at the restaurant the night before the incident.

She claimed she didnt know anything about (the crash), Fredo said. She did admit she was the only driver of her vehicle.

Fredo and the other traffic detective took McKinney into custody based on two warrants, one related to suspicion of battery: McKinney had gotten into an altercation while trying to use a shower at a local LA Fitness, Fredo said.

The three remaining dogs were taken to the Burbank shelter.

In August, weeks before the first mental-competency hearing, at the Los Angeles Police Departments Valley Operations Bureau, Fredo talked about the case with a reporter.

The detective said she believed McKinney was narcissistic: In previous encounters with police, McKinney would tell them about a potential book and a hoped-for feature movie about her life, conversations picked up by officers body-worn cameras.

McKinney had brought up the book idea to Fredo, too, during the arrest. McKinney was coherent, and chose her words carefully, the detective said.

What she was saying was making sense, Fredo said. If anything, I dont know that she had the ability to care about anybody but herself.

At the Burbank Animal Shelter on Wood-Levins desk sat two hand-written letters, about 20 pages each. McKinney sent them from an L.A. County jail.

In the letters, McKinney says shes being held against her will, and that she wants to reunite with her dogs, which she names.

Shes very intelligent, Wood-Levin said. She constantly plays the victim. She has not acknowledged whats she done in any of the letters.

She just says shes been falsely accused and is being held captive by the Sheriffs Department.

Fifteen or so years ago, Bolotsky was hit in that same Valley Village crosswalk.

Neither that first incident, nor his age, kept him down.

Family members, after the fatal hit-and-run, shared videos of Bolotsky dancing at his 90th birthday.

He was supposed to live to 100 or more, a son told KABC7.

Bolotsky had survived Nazi Germanys invasion of the Soviet Union in 1941. He fled his native Ukraine and settle in the United States.

He lived just around the corner from the crosswalk and would take his small dog, Leelah, for walks.

Bolotskys family took over care of Leelah, the LAPD detective said. But the dog clearly missed her owner.

On July 2, the Los Angeles County District Attorneys Office filed against McKinney one felony count each of assault with a deadly weapon, hit-and-run resulting in death, and vehicular manslaughter with gross negligence.

Two days later, records show, McKinneys public defender declared doubt about her mental competency to stand trial. Twenty days after that, a judge ordered a mental-competency hearing for McKinney.

And on Sept. 9, in front of Los Angeles Superior Court Judge Robert Harrison, McKinneys second public defender, William Edwards, said at first he believed some of the details she told him about her life could be delusions.

I wasnt sure if some of the things she was saying were true or not, Edwards told the judge.

When her lawyer looked for himself, he found how much of it really was.

I encourage you to Google her name, Edwards said. Shes a fascinating figure in our culture.

Judge Harrison declared McKinney mentally unfit to stand trial and ordered her housed in a mental-health facility.

McKinney was taken to the Metropolitan State Hospital, a sprawling, leafy 162-acre facility nestled in the heart of Norwalk.

In February, a judge in Van Nuys ruled, once again, she was not competent.

McKinneys next hearing is scheduled for August.

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Woman accused of running over Holocaust survivor in San Fernando Valley has led a tabloid life - Long Beach Press Telegram

Our Views: Tony Spell is a minister who’s a threat to life and should be locked up – The Advocate

Were hearing two views as the death toll for coronavirus mounts.

One is that of an irresponsible minister, Tony Spell of Central in suburban Baton Rouge.

"This is an attack on religion. This an attack on our constitutional rights. We have a constitutional right to assemble and to gather and there are no laws that I am breaking," he said Tuesday, before leading another service putting the lives of all attending at risk.

Heres a more sensible Christian view.

If I thought this was an attack on religious freedom, Id be right there with him, says Tony Perkins. Its a directive for the sake of public health not to meet.

Perkins, a former state representative, makes his home nearby and for his day job leads the Family Research Council in Washington, D.C.

He is right to reject the absolutist and dangerous actions of Spell. Already charged by prosecutors with six counts of violating the emergency declaration, handcuffs cannot and should not be far behind for the defiant Life Tabernacle Church pastor.

The argument that the First Amendment to the Constitution forbids any and all government actions in terms of speech, religion and assembly is just wrong. The famous phrase used by Justice Oliver Wendell Holmes Jr. of the U.S. Supreme Court was that there is no free-speech right to yell Fire! in a crowded theater.

The Constitution is not a suicide pact, often attributed to President Abraham Lincoln to justify emergency actions during the Civil War, was used in a high court opinion in the 1940s.

In terms of law and society, the Central pastor is wrong.

Here, Attorney General Jeff Landry has supported that the stay-at-home orders and limits on public assemblies. We agree with him and Gov. John Bel Edwards that public-health emergencies require strong action.

What is at work here, exploited by Spell, is the genuine fear of a faceless threat. People of faith naturally wish to come together as they are used to, seeking divine guidance and inspiration. Those days will come again, but for the moment prudence must be the rule.

One of those dying of coronavirus complications was a well-known Episcopalian minister, the Rev. William Barnwell of New Orleans. Friends remembered an important sermon in which he rejected a fearful and bleak view of human nature.

We are creatures made in the very image of God. And we can live the way we were created to live, especially with the help of a loving community, Barnwell said.

Those called to the ministry have a leadership responsibility not only to God but to their communities. A loving community of believers does not gather in the face of a deadly communicable disease. Those who defy legitimate public-safety orders should be arrested.

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Our Views: Tony Spell is a minister who's a threat to life and should be locked up - The Advocate

Drone Whistleblower Faces Charges for Alleged Threat to Local Officials – The Intercept

Brandon Bryant made international headlines when he came forward with information from inside the U.S. militarys drone program. Over the past several years, the former drone operator has become known for his outspoken activism on the issues of civilian deaths and the struggles of drone pilots with substance abuse and post-traumatic stress disorder.

Like other veterans of the program, the daily work of tracking and killing people as an operator took a psychological toll on Bryant, with consequences for his mental health that he has discussed publicly in the past. Since he left, hes also been struggling with the pressures of going public as a whistleblower anda head injury he suffered during a military training exercise.

One way that he has tried to pick up the pieces of his life is by getting involved in local politics in his hometown of Missoula, Montana. It hasnt been easy. Bryant has periodically clashed with members of the city council over issues like housing cost increases and contracts issued to land developers. Recently, he lashed out online, and is now facing up to ten years in prison for allegedly threatening elected officials.

Bryant was charged and taken into custody in February after a video of him allegedly making threats against the city council surfaced online. The video was posted by an online detractor (who Bryant has accused of cyberstalking) and was edited down from a longer version Bryant himself had posted. In the rambling video shot in a darkened room, Bryant says that members of the council deserve to be eliminated, though he never threatens any specific action.

Bryant is presently out on bail awaiting a hearing on Thursday. Three members of the city council have come forward to ask for the charges to be dropped, writing in an open letter that the video appeared to be edited to seem more threatening than it was. In no way do we perceive him to be a threat to our safety or that of the community, the council members wrote. The council members also cited his public role as a drone whistleblower. We are firm believers in the first amendment and we deeply feel the future consequences of jailing an active citizen over a non-violent offense will have devastating consequences.

A core question in the case is whether Bryants words in the YouTube video constitute whats known as a true threat under the First Amendment.

True threats encompass those statements where the speaker means to communicate a serious expression of anintent to commit an act of unlawful violence to a particular individual or group of individuals, said Anthony Johnstone,professorat Montanas Blewett School of Law. This is precisely the question at issue in Mr. Bryants case: Did he mean to communicate a threat to the city council? His words may be susceptible of more than one interpretation depending on the relevant context. The court will need to decide what that context is.

Through his lawyers, Bryant declined to comment for this story.

There is no obvious sign that the charges against Bryant are related to his high-profile work as a whistleblower on the drone program although other whistleblowers have been charged with leaking classified information, and advocates have long feared the government coming after those who speak out in other ways.

Bryants current situation does point to the lasting effects of the pressure of coming forward.

Cian Westmoreland, who is among the smallnumber of drone operators who havegone public abouttheirexperiences in the program, is close to Bryant and describes him as one of many veterans experiencing post-traumatic stress and moral injury.

Brandon and I have spoken extensively about what we carry with us. Brandon has a brain injury that interferes with the way he talks about things, Westmoreland told The Intercept, referring to the training incident. It isnt obvious to someone who doesnt know him. He says what he feels, and there is no filter. He says a lot of contradictory things, but he cant help it; he is working out a lot from the wars and even our current political situation here.

When Bryant first came forward in 2012, his account was explosive. Among other things, he said that drone operators routinely killed civilians and took drugs and alcohol while on the job. His story echoed that of other drone veterans, who spoke out about substance addiction and post-traumatic stress, in part due to feelings of torment over their involvement in the targeted killing program.

The drone program remains highly opaque, even as the military continues to carry out targeted killing campaigns around the world. Begun during the George W. Bush administration but massively expanded and normalized under Barack Obama, air wars waged by drone and conventional aircraft now continue in Libya, Syria, Iraq, Somalia, Afghanistan, and Yemen.

In past conflicts, unaddressed PTSD and other psychological ailments suffered by veterans have sometimes resulted in alterations in their behavior. In the case of Bryant and others, Westmoreland said the trauma many veterans carry is compounded by the fact that the conflicts in which they took part have not ended; the painful consequences are still playing out in front of them every day.

Brandon is as sickened by his service as am. I dont like acknowledging that I participated in effectively destroying a nation and have done irreparable harm to anyone. The more you reflect, the worse it gets, Westmoreland said. He joined to serve his country, and the politicians elected to serve this country took his youthful good nature and turned us into invaders and we became their servants. He is as American as apple pie. Hes just considered the humanity in the people hes harmed. That alone is devastating almost 20 years into this with no real end in sight. Of course were angry about that.

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Drone Whistleblower Faces Charges for Alleged Threat to Local Officials - The Intercept

Unemployment Claims Hit 6.6 Million. It’s Officially Worse Than the Great Recession. – Reason

More than 6.6 million Americans filed for unemployment benefits in the week ending March 28. That's a record-breaking number of unemployment claims for the second week in a row, and way more than analysts were projecting for last week.

The actual number of claims was "more than double the estimate of 3.1 million analysts expected," points out CNBC correspondent Eamon Javers. "The American job market is in free fall."

In the two weeks ending March 28, 9.9 million people filed for unemployment benefits.

At the peak of Great Recession joblessness in 2010, "there were 7.7 million more officially unemployed people than before the downturn," noted Atlantic writer Derek Thompson."The labor market is contracting at the rate of one Great Recession per 10 days."

Before March 2020, the highest number of unemployment claims filed in a single week was 695,000.

The company behind video game Call of Duty has emerged victorious after being sued by military contractor AM General, which objected to Call of Duty's depiction of Humvees. Call of Duty parent company Activision said it was a First Amendment issue, and U.S. District Court Judge George B. Daniels agreed. "If realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal," the judge wrote. "The inclusions of Humvees in the foreground or background of various scenes are integral elements of a video game because they communicate ideas through features distinctive to the medium."

The Federal Trade Commission (FTC) is suing vape company Juul, because even in the midst of a real pandemic, bureaucrats can't stop targeting fake problems. The FTC alleges that Juul was not allowed to sell shares to tobacco company Altria and is accusing the company of violating antitrust law by letting Altria own a 35 percent share.

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Unemployment Claims Hit 6.6 Million. It's Officially Worse Than the Great Recession. - Reason

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The details of Nicolai's ordeal were horrifying.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But K Street groups are pushing back hard.

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

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

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

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

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

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

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

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

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

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

Go here to see the original:

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

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

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

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

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

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

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

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

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

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

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

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

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

See the article here:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

But not being in the building has restricted coverage.

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

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

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

Why not this time?

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

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

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

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

Violation of that order is a misdemeanor crime.

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

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

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

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

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

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

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

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

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

There is one huge difference from today.

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court then rejected the religious freedom challenge:

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

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

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

Originally posted here:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The rest is here:

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

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

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

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

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

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

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

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

State Power

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

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

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

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

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

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

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

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

Congressional Power

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

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

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

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

Could Congress Force States to Reopen?

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

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

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

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

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

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

* * *

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

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

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

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

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

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