Amicus brief filed by the Reporters Committee for Freedom of the Press and 16 media organizations

Court: U.S. District Court, District of Oregon, Portland Division

Date Filed: Aug. 5, 2020

Update:On Aug. 6, U.S. District Judge Michael H. Simon extended the temporary restraining order against federal officers, without modifications, through Aug. 20. During a hearing, Judge Simon thanked the Reporters Committee for its friend-of-the-court brief in the case, and said he was no longer considering the idea of having journalists obtain credentials from the ACLU.

Background: In June, the American Civil Liberties Union filed a class-action lawsuit on behalf of journalists targeted by law enforcement while covering Black Lives Matter protests in Portland, Oregon.

A month later, a federal district judge temporarily blocked law enforcement from arresting, assaulting, threatening, or dispersing journalists and legal observers during demonstrations, and said that police could not search or seize journalists equipment. After the government asked the court to modify the temporary restraining order, the judge asked the parties whether the court should restrict the protections to professional or authorized journalists who would be clearly identifiable by wearing vests provided by the ACLU.

Our Position: The district court should not require journalists covering protests to register or obtain a license with the government, ACLU, or any other organization.

Quote: The First Amendment bars any system that would require journalists to be licensed by the government, third party, or otherwise to gather and report the news. Such a system would constitute both an unconstitutional prior restraint and an unacceptable impediment to the publics right to know.

Related: The Reporters Committee has urged public officials in California, New York, Minnesota, and Colorado to immediately stop attacking and arresting journalists covering the Black Lives Matter protests, and to train police officers about First Amendment protections for reporters.

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RCFP: Journalists covering Portland protests should not be required to obtain a license - Reporters Committee for Freedom of the Press

Appellate court decisions result in winners and losers in any specific case, but the issues involved often are worked through murky gray areas. Consider for example the July 30 U.S. Supreme Court decision in Little v. Reclaim Idaho.

The background is fairly well known in Idaho. The group Reclaim Idaho has been trying to promote an Invest in Idaho tax and schools initiative for the November election ballot. When the pandemic hit and Gov. Brad Littles stay-home order was issued, its petition-gathering which in the normal process has to be done face to face was blocked, which meant a part of Idahos election process also was blocked.

That point, essentially an argument over voting civil rights, went to federal court. Idaho U.S. District Judge B. Lynn Winmill ordered that the state either simply place the proposed initiative on the ballot or allow the group to collect the signatures electronically. The state appealed, and the case with startling speed went to the U.S. Supreme Court. On a 4-2 decision, the court sided with the state, ordering a stay of the Winmill decision.

Story continues below video

The Supreme Court, as often happens, didnt go to the center of the issue the voters-rights matter and it did not specifically reverse the Winmill decision, though it may have felt that way. But whats there is worth considering.

First, the majority decision (written by Chief Justice John Roberts) pointed out that, oddly enough, different federal courts have established different guidelines for what states can and cant do in initiative procedures (one reason the high court might have granted certiorari permission to bring this case to it). It said, the States depend on clear and administrable guidelines from the courts. Yet the Circuits diverge in fundamental respects when presented with challenges to the sort of state laws at issue here. According to the Sixth and Ninth Circuits, the First Amendment requires scrutiny of the interests of the State whenever a neutral, procedural regulation inhibits a persons ability to place an initiative on the ballot. ... Other Circuits, by contrast, have held that regulations that may make the initiative process more challenging do not implicate the First Amendment so long as the State does not restrict political discussion or petition circulation.

The Supreme Court didnt really land on this turf in its Idaho decision, but the majority did focus on the right of the state more than the right of the initiative proponent: The District Court did not accord sufficient weight to the States discretionary judgments about how to prioritize limited state resources across the election system as a whole.

Thats not an unreasonable point, but it leaves a massive gap in how to review something like this. In her dissent, Justice Sonia Sotomayor zeroed in on balancing harms to stay applicant against harms to respondent in other words, balancing the interests of the state and the initiative backers, rather than simply disregarding the interests of the backers. She acknowledged that allowing the electronic signature would be a burden on the state and counties and it would be but she argued it should be considered in context.

Putting a still finer point on it, The stay granted today puts a halt to their signature-collection efforts, meaning that even if respondents ultimately prevail on appeal, it will be extremely difficult, if not impossible, for them to collect enough qualifying signatures by any reasonable deadline for the November ballot. In other words, the delay occasioned by this Courts stay likely dooms to mootness respondents First Amendment claims before any appellate court has had the chance to consider their merits (and, indeed, before this Court has had the chance to consider any potential petition for certiorari).

So in balancing the rights of a state government against those of its voters, the Supreme Courts majority seems to be putting its thumb on the state side of the scale. That may be worth giving some careful thought when you look, as historically we long have, to the nations highest court as a protector of the rights of the American people.

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Weighting the scales - Idaho State Journal

STATEN ISLAND, N.Y. -- A Meiers Corners woman charged with multiple counts of harassment as a hate crime was a burden and potential threat to several of her neighbors, including multiple children as young as 3 years old, authorities allege.

Lenore Arce, 70, faces charges that include five-counts of first-degree hate crime/harassment, three counts of endangering the welfare of a child, five counts of third-degree stalking and five-counts of fourth-degree stalking.

Racial epithets hurled at neighbors over the course of several months included white trash, n*****, and ch***, while in some cases she followed the victims around their property, the criminal complaint alleges.

Arce, whose first name is also spelled as Leonore in court documents, was arraigned on the charges Friday in Criminal Court in St. George, where a judge released her on her own recognizance.

A temporary order of protection was issued on behalf of the alleged victims, with a following court date scheduled for Nov. 6.

NEIGHBORS ALLEGEDLY BERATED, THREATENED

Arce continuously harassed five households on her Meiers Corners block from Jan. 1 to June 30, in some cases following neighbors around their properties and making remarks based on their race and sexual orientation, the complaint alleges.

One of her targets on multiple occasions was a grandparent and their grandchild, at one point issuing a threat: Im coming for you, you and your white trash family, authorities allege.

The complaint alleges Arce harassed another family, including two children ages 10 and 12, with verbal assaults including, F*** you, you illegal ch***.

Another neighbor was allegedly called a thief and a fa****.

The Advance/SILive.com first reported on the situation in July, publishing disturbing video where she could be heard uttering a stream of racial epithets at a neighbor.

Youre a f****** sick negro ... Put it up your f****** n****** a**, the woman can be heard saying in one video. Youre f****** black trash.

You dont run this f****** neighborhood, n*****, she said in another.

Arce has been a resident of the block for approximately 20 years, neighbors said.

Interviews with a half-dozen residents, some of whom requested anonymity for fear of retaliation from Arce, presented corroborating accounts of residents who said the womans constant harassment affects their everyday lives even causing her neighbors to change their daily routines to avoid coming into contact with her.

I got to look out my window before I come out, said one neighbor who wished to not be named. If I see her outside, I wont go out. But as soon as you step out of your house, she comes running out.

Joshua Benjamin, Arces defense attorney, described the case as a neighbor dispute and said it does not belong in Criminal Court.

Ms. Arce is 70 years old and on a fixed income, he said. She has never been in trouble with the law. She has the absolute legal right to speak her mind. Speech, even speech we dont like, is protected by both Article 1 Section 8 of the New York Constitution and by the First Amendment to the United States Constitution.

He continued: They can only make a hate speech charge if there is an underlying crime. There is no underlying crime. They are trying to penalize and criminalize a New Yorker for having a big mouth. That is against our laws and the beautiful New York value of speaking your mind.

DE BLASIO CALLS FOR INVESTIGATION

In late July, Mayor Bill de Blasio called a video documenting the racist tirades Arce hurled toward her neighbor shameful and disgusting and vowed an investigation would take place.

These are not New York values, and not what this city represents. Were investigating this, de Blasio said at the time.

Read the original here:

Temporary order of protection issued against Meiers Corners woman in hate-crimes case - SILive.com

This article is part of aSCOTUSblog symposiumon the Roberts court and the religion clauses.

Richard W. Garnett is the Paul J. Schierl / Fort Howard Corporation professor of law at the University of Notre Dame and is the founding director of the schools Program on Church, State and Society. He wrote or joined amicus briefs in several of the cases described below, including most recently joining an amicus brief on behalf of the petitioners in Our Lady of Guadalupe School v. Morrissey-Berru.

Those who think and write about the Supreme Court, including many of the justices themselves, tend to collect and deploy colorful adjectives and epithets to describe the state of its religion clauses doctrine and case law. It is not necessary to go full-thesaurus or to march out the entire parade of pejoratives here. A hot mess was the recent pronouncement of one federal court of appeals. And my own favorite is still Justice Antonin Scalias 1993 portrayal of the so-called Lemon test as a ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.

An important part of the Roberts court story, though, is that it has both continued and facilitated developments-for-the-better in law-and-religion. Chief Justice John Roberts, following in several ways the example and path of his predecessor, William Rehnquist (for whom he and full disclosure I clerked), has directed, not merely endorsed or observed, these changes. The standard, habitual denunciations no longer seem to apply. As Larry David might put it, the law of the religion clauses is actually pretty, pretty good.

Many scholars and commentators would disagree, of course. To them, these developments represent the crumbling, demolition or some other masonry-related downgrading of the wall of separation between church and state, or they supply evidence of a judicially ascendant Christian nationalism or even theocracy. In fact, though, the Roberts court has moved the law of religious freedom and church-state relations toward coherence and clarity, and better aligned it with American history, tradition and practice and with an appropriate understanding of judges capacities and the judicial role in a democracy.

A number of recent decisions, including several cases from the 2019-20 term, illustrate this movement. And one that is already scheduled for the fall and another that the justices have been asked to review provide an opportunity to continue it. But before discussing recent rulings and upcoming arguments, it is worth asking how and why things went wrong.

The Supreme Court, during its first century and a half, had almost nothing to say about the judicially enforceable content of the right to religious freedom, about the role of religious believers and arguments in politics and public life, or about the terms of permissible cooperation between church and state. Questions about these matters were, for the most part, worked out politically and practically, and in ways that (for better or worse) did not often depart from public consensus, habit and expectations. With the gradual incorporation of the Bill of Rights, though, and the Supreme Courts emerging understanding of its counter-majoritarian role, this changed.

As the court took up the task of interpreting and enforcing the religion clauses, at least three things contributed, eventually, to the much-derided state of doctrinal affairs. The first was the constitutionalization indeed, the fetishization of a James Madison pamphlet and a phrase in one of Thomas Jeffersons constituent-service letters. In his 1947 opinion for the court in Everson v. Board of Education, Justice Hugo Black of Alabama presented as canonical a potted and partial history of Americas religious-freedom experience in which a Virginia controversy and Jeffersons passing reference to a wall of separation between Church and State and not the broad range of views about the meaning of disestablishment were foundational and controlling. Particularly in school-funding cases, this focus (or myopia) would cause the justices to convert the First Amendments no-establishment rule into a command that, somehow, governments avoid advancing religion.

A second misstep was the embrace of an understanding of constitutionally required neutrality that consisted not in even-handedness or nondiscrimination among Americas increasingly diverse array of religious traditions and communities, but instead in the absence of (something called) religion from (something called) the secular sphere. That is, neutrality was often said to require the forced confinement of religion to the purely private realm, preventing it from playing any role in the routines of public schools and other spaces.

Finally, there was the relatively late-emerging problem of public religious displays, symbols and expression. Although these did not, strictly speaking, impose any obligations, penalties or disadvantages, or confer any privileges, they came to be seen by the court as threatening or contributing to political divisions along religious lines or as endorsing religion and thereby telling some that they are less than full citizens or outsiders in the political community. At the same time, judges and justices were often unwilling to follow through to the extent of outlawing all public displays, symbols and art connected with religious holidays and themes, or undoing the national motto, or cancelling longstanding practices like legislative chaplains. The line between an unlawful endorsement and a permissible acknowledgment of religion seemed to depend on little more than the intuitions, or the aesthetic preferences, of the one drawing it.

For these and other reasons, the evocative denunciations by various justices of, say, the interior-decorating and semiotics aspects of courts attempts to apply the endorsement test and of the strange contrasts involved in school-funding cases between the religion-advancing effects of books and maps, had force. However, to make a long story short, under the Rehnquist and now the Roberts courts, things have improved.

For starters, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a unanimous 2012 opinion authored by Roberts, the court reminded us that the point of separating, or differentiating between, church and state is not to erect a cooperation-killing wall but instead to protect religious freedom by preventing governments from interfering in religious matters and from purporting to answer religious questions. In June, the justices re-affirmed this understanding, and the corresponding right of religious communities to select their own teachers and teachings, in Our Lady of Guadalupe School v. Morrissey-Berru.

By 2002, a gradual but unmistakable evolution in the cooperation-with-religion context culminated in the Zelman v. Simmons-Harris decision, in which the court downplayed the Lemon tests quixotic aim of avoiding any advancing of religion and instead applied a more straightforward and enforceable requirement of formal neutrality. And, this past term, in Espinoza v. Montana Department of Revenue, the court ruled that not only may governments provide funding to persons who choose religious schools, hospitals and social-welfare agencies for the important public goods they provide, they may not discriminate against religion when doing so.

And another example of doctrinal clean-up came in 2019s decision in American Legion v. American Humanist Association, in which the justices rejected an establishment clause challenge to a large and longstanding war-memorial cross on public property. Instead of hypothesizing about the messages on civic status communicated by the cross to judicially constructed reasonable observers, a majority of justices called for respecting, and deferring to, history and tradition when deciding whether a particular symbol amounts to an establishment of religion. Noncoercive and time-honored displays and practices should not be uprooted on the complaint of offended observers in the name of an abstract understanding of the secular.

The remaining category of American religious-liberty controversies involves exemptions for religious exercise and accommodations for religious people. The Roberts court has several times affirmed, sometimes unanimously, that religious exercise may, and should, be legislatively accommodated and may be treated as special by governments in keeping with the particular solicitude shown for it in the First Amendments text and throughout American history. The long-running dispute over the Affordable Care Acts contraception-coverage mandate, which returned to the court last term with Little Sisters of the Poor v. Pennsylvania, provides a contested illustration of the courts willingness to interpret legislative accommodations of religion broadly, but the controversy surrounding this particular controversy should not obscure the broad, clear consensus that reasonable accommodations of religious dissenters promote both religious freedom and civic peace.

So far, the Roberts court, with its conservative majority, has left in place the rule, laid down 30 years ago in Employment Division v. Smith, that, although generous accommodations of religion are permitted, exemptions from generally applicable and nondiscriminatory laws that burden some religious practices are not required by the free exercise clause. The Smith rule has come in for criticism that is every bit as harsh, and at least as widespread, as the critiques of the Lemon and endorsement tests. And the justices have agreed to hear a case this fall that offers an opportunity to reject or revise it.

Fulton v. City of Philadelphia involves the citys decision to exclude Catholic Social Services from participating in the enterprise of foster-care placements because that agency refuses, for religious reasons, to certify same-sex couples as foster parents. Although the justices could rule for Catholic Social Services on the narrow ground that the citys policies are not really neutral or generally applicable an approach similar to the route chosen in the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission the question whether Employment Division v. Smith should be revisited is squarely presented.

The Roberts courts interpretation and application of the religion clauses have continued an evolution that made First Amendment doctrine more coherent and also more consonant both with historical practice and the judicial role. Exactly how a revisiting of Smith would fit in with this evolution remains to be seen. Stay tuned.

Posted in Symposium on the Roberts court and the religion clauses, Featured

Recommended Citation: Richard Garnett, Symposium: Religious freedom and the Roberts courts doctrinal clean-up, SCOTUSblog (Aug. 7, 2020, 9:57 AM), https://www.scotusblog.com/2020/08/symposium-religious-freedom-and-the-roberts-courts-doctrinal-clean-up/

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Symposium: Religious freedom and the Roberts courts doctrinal clean-up - SCOTUSblog

The Harpers letter (7/7/20) decried a new set of moral attitudes and political commitments that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity.

A short and rather vaguely worded open letter published in Harpers Magazine (7/7/20) earlier this month caused an unlikely media storm that continues to rumble on. Glossing over right-wing threats to the First Amendment, the letter, signed by 150 writers, journalists and other public figures, decried a new intolerance to dissent and a threat to freedom of speech coming from the left.

The vagueness of the letter was both its genius and its shortcoming, allowing people of all political persuasions to put their names to it, but also for others to read into it virtually anything they wanted. As the Los Angeles Times (7/9/20) described it, the letter became a Rorschach test of subtext.

The letter generated an explosion of takes and counter-takes, hailed as everything from a welcome and long overdue triumph (Washington Times, 7/13/20) to a collective wallowing in self-pity (In These Times, 7/7/20), leading to a debate about open debate and a great deal of speech complaining about speech.

However, much of the public discussion of the Harpers letter misses the fact that it is the powerful, not the masses, who inordinately have the ability to cancel individuals for their actions, and that it is the left and those challenging power who consistently suffer the brunt of the consequences.

Chief among the threats to the First Amendment is the president himself. The Trump administration is currently suing a small news station in northern Wisconsin for running a political ad it (and countless others) aired but did not produce. They are not suing the well-funded Democratic Super PAC who paid for it, but instead are going after the messenger. While legal experts suggest that they have no case, Wisconsin has no laws against frivolous lawsuits, meaning the station will likely be bankrupted defending itself, something that appears to be exactly the point of the exercise: intimidating other media outlets into silence.

The makers of a documentary on ICE say they were warned that the federal government would use its full weight to veto scenes it found objectionable (New York Times, 7/23/20).

The federal government is using the same tactic, using its full weight trying to suppress a Netflix documentary about ICE. The New York Times (7/23/20) reports that the government demanded the removal of scenes that showed the department terrorizing communities and breaking the law during arrests. Notably, the government is deliberately targeting the films small production company, not the giant streaming service, which has the resources to fight back. (Several times, the filmmakers said, the official pointed out that it was their little production company, not the films $125 billion distributor, that would face consequences, the Times reported.)

Yet these direct attacks on the First Amendment received scant coverage in comparison to the Harpers letter, or Times columnist Bari Weiss resignation from her newspaper, citing a stifling liberal atmosphere. Weiss leavetaking has been the subject of four CNN articles and over a dozen on Fox News, whereas the attempt to suppress the ICE documentary has not been covered by Fox, and has been the subject of only one CNN piece (7/29/20)a TV review that mentions the attempted suppression.

The Trump administration has also contravened the First Amendment in attempting to ban the release of material critical of the president. The Department of Justice is currently suing Trumps former National Security Advisor John Bolton for the publication of his memoir, The Room Where It Happened, claiming that Boltons embarrassing anecdotes represent a national security violation. He must pay a very big price for this, as others have before him. This should never happen again!!! Trump tweeted (6/20/20). Bolton faces possible criminal charges, as well as having any profits seized.

Similarly, the Trump family, represented by Donalds brother Robert, used the courts to try to block the publication of Mary Trumps book, Too Much and Never Enough, wherein the presidents psychologist niece diagnoses him as a narcissist with possible antisocial personality disorder.

Perhaps most worryingly, a significant portion of the public is strongly supportive of Trumps destruction of the First Amendment. A plurality of Republicans (43%) believe he should close news outlets engaged in bad behavior, and 13% of Americans (including a quarter of Republicans) think he should immediately close the Washington Post, New York Times and CNN.

The media, who President Trump infamously labeled the enemy of the people, have been subject to a generalized nationwide government assault in recent weeks. According to the US Press Freedom Tracker, there have been at least 585 incidents, including at least 84 journalists arrested, 137 shot by police or National Guard, 80 tear-gassed and 36 pepper-sprayed while covering the George Floyd protests. Some, like photojournalist Linda Tirado, have been left permanently disfigured from police attacks. The onslaught against the press is so bad that the United Nations has gotten involved, its human rights office condemning the arbitrary arrests, and the disproportionate and discriminatory use of force.

If you get fired for saying something like this (Twitter, 7/23/20), opponents of cancel culture wont come to your defense.

But when 9News Denver meteorologist Marty Coniglio also condemned the states repression, he faced immediate consequences. After tweeting, Federal police in citiesnow where have I seen that before? accompanying it with a picture of Nazi troops, he was promptly fired. James Bennets resignation from the New York Times for soliciting and printing an op-ed (that he admits he hadnt read before publishing) calling on the military to crush the protest movement drew worldwide condemnation (even being obliquely mentioned by the Harpers signatories as their primary piece of proof of an intolerant left). But Coniglios case, where he challenged power, not indulged it, has barely been reported outside of Colorado.

Coniglios case is indicative of the fact that the primary victims of cancellation tend to be the left and those challenging power. Earlier this year, David Wright, a longtime political journalist for ABC News, was suspended and permanently pulled from political reporting after he was secretly filmed, in private, criticizing his network and admitting that he is a socialist who likes Bernie Sanders (a popular position among Americans, but not among journalists at corporate outletsFAIR.org, 3/8/16, 2/8/19, 7/26/19).

Those displaying insufficient enthusiasm for state violence from the US or its allies can also suffer immediate consequences. In February, journalist Abby Martin was barred from speaking at Georgia Southern University after refusing to swear an oath of allegiance to the state of Israel (something 28 states already make anyone receiving public money do). CNN fired its contributor Marc Lamont Hill in 2018 for criticizing Israel, and for calling for a free Palestine from the river to the sea. Going further back, Chris Hedges was forced out of the New York Times for his opposition to the Iraq invasion, a fate that also befell MSNBCs Phil Donahue and Jesse Ventura.

Thomas Chatterton Williams, the organizer of the Harpers letter, specifically warned that Donald Trump is the Canceler in Chief, and that his letter only addresses a small part of the threat to a pluralistic public discourse. Unfortunately, most of the debate in elite circles has ignored these far greater dangers in favor of focusing on overzealous Twitter usersperhaps because privileged journalists in corporate media have come to accept objections to their reporting from the powerful as inevitable, if not legitimate, whereas popular challenges to their reporting make them bristle with indignation. While the dangers of leftist cancel culture can be debated, theres no denying the dangers of the governments assault on the core American value of free speech.

Featured image: A scene from the Netflix documentary Immigration Nation.

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Media's 'Cancel Culture' Debate Obscures Direct Threats to First Amendment - FAIR

from the not-how-this-works dept

There's this dumb but persistent meme in American culture that somehow the First Amendment simply doesn't exist within the walls of a public school district. This is patently false. What is true is that there have been very famous court cases that have determined that speech rights for students at school may be slightly curtailed and must face tests over "substantial disruption" of the speech in question in order to have it limited. Named after the plaintiff in that cited case, the "Tinker test" essentially demands that schools not simply dislike a student's speech or the discomfort that comes from it, but instead must be able to demonstrate that such speech is disruptive to the school and students broadly. The facts of that case, for instance, dealt with students being suspended for wearing anti-war armbands. Those suspensions were seen as a violation of the students' First Amendment rights, because obviously.

Subsequent cases, such as Morse v. Frederick, have very slightly and narrowly expanded the limitations on speech within schools. In this case, for instance, a student's speech encouraging the use of illegal drugs was found to be a valid target for school punishment. But, narrow or not, some analysis has worried that cases like this could be used to expand the curtailing of student speech:

By contrast, the Eleventh Circuit extended Morse's rationale about illegal drugs to the context of student speech that is "construed as a threat of school violence". Boim, 494 F.3d at 984 (upholding the suspension of a high school student for a story labeled as a "dream" in which she described shooting her math teacher). Moreover, the court concluded that Morse supports the idea that student speech can be regulated where "[in] a school administrator's professional observation ... certain expressions [of student speech] have led to, and therefore could lead to, an unhealthy and potentially unsafe learning environment".

Disallowing student speech that amounts to threats of violence indeed seems to make sense. That being said, speaking of "an unhealthy and potentially unsafe learning environment":

You'd be forgiven if you thought that picture was taken from the Paulding County high school six months ago, with so few masks. But it wasn't. Instead, it was taken on August 4th, the first day back to school for Paulding County. Whatever your thoughts on whether and how schools should be opening, you really need to go read that entire article from BuzzFeed. The overwhelming impression left is that Paulding County appears to have reopened its schools in as callous and cavalier manner possible while still staying just inside government guidelines. Masks? Sure, if you want, but they're optional. Distancing? Of course, but we can't really enforce it in any meaningful way. And overall safety?

North Paulding teachers said they too felt they had no choice but to show up to work, even after a staff member texted colleagues saying she had tested positive for the virus. The staffer had attended planning sessions while exhibiting symptoms, one teacher said.

She did not attend school after testing positive. But teachers have heard nothing from the school, they said, which wont confirm that staff members have tested positive, citing privacy concerns.

The Paulding County School Superintendent, Brian Otott, began reaching out to parents to reassure them that what they saw in the viral photo going around Twitter was fine, just fine. It lacked context, you see. Context, one presumes, is another word for safety. Or, if we are to believe Otott, the context is essentially: yes, this is totally happening, but the state said we can operate this way.

Otott claimed in his letter that the pictures were taken out of context to criticize the schools reopening, saying that the school of more than 2,000 students will look like the images that circulated for brief periods during the day. The conditions were permissible under the Georgia Department of Educations health recommendations, he said.

This from the same state that has the 6th highest number of total COVID-19 cases, the 11th most total cases per capita, the 4th most total new cases in the last week, and the 6th most new cases per capita in the last week. So, you know, not the state doing the best job in the country by a long shot at containing outbreaks of this virus.

Which perhaps makes sense, actually, since Otott seems chiefly interested in containing not the virus in his school halls, but rather any criticism of his district. Remember that viral photo that kicked off this discussion? Well...

At least two students say they have been suspended at North Paulding High School in Georgia for posting photos of crowded hallways that went viral on Twitter.

The photos show students packed into hallways between classes, not appearing to practice social distancing and with few masks visible, amid the coronavirus panic. They went viral after being shared by the account @Freeyourmindkid.

Those suspensions being handed out are five day suspensions and are being levied at violations of school rules around using cell phone cameras without permission. A couple of things to say about that.

First, the removal of a student from a School-sanctioned petri dish of a novel coronavirus feels odd as a punishment. Were it not for the intentions of the Superintendent, it would be damn near heroic as an attempt to save these kids from getting sick.

Second, refer back to my two paragraph throat-clearing above. This isn't constitutional. Nothing about the students sharing their concerns amounts to a disruption of school, or anything else that would qualify this protected speech for scholastic punishment. Taking a fearful 15 year old student and punishing him or her for their fear is beyond reproach. And, about those school rules for cell phones:

On Wednesday, an intercom announcement at the school from principal Gabe Carmona said any student found criticizing the school on social media could face discipline.

Again, plainly unconstitutional. One wonders why anyone should have faith in a school administration that isn't even educated enough on the rights of its own students to keep from ignorantly broadcasting its idiocy over school intercoms. Why are these people even allowed to teach children in the best of times, never mind during a pandemic as these kids get herded like cattle to the slaughter through school halls?

While I guess we'll all get to see what happens in this idiotic school district now, and maybe even learn some lessons from what occurs, I'm generally not of the opinion that we should treat our own children like they were the subjects of some kind of bizarre modern-day Tuskegee test.

Filed Under: 1st amendment, free speech, georgia, paulding county, photos, school reopenings, students, suspensionsCompanies: north paulding hs

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Georgia School District Inadvertently Begins Teaching Lessons In First Amendment Protections After Viral Photo - Techdirt

Appellate court decisions result in winners and losers in any specific case, but the issues involved often are worked through murky gray areas. Consider for example the July 30 U.S. Supreme Court decision in Little v. Reclaim Idaho.

The background is fairly well known in Idaho. The group Reclaim Idaho has been trying to promote an Invest in Idaho tax and schools initiative for the November election ballot. When the pandemic hit and Gov. Brad Littles stay at home order was issued, its petition-gathering which in the normal process has to be done face to face was blocked, which meant a part of Idahos election process also was blocked.

That point, essentially an argument over voting civil rights, went to federal court. Idaho U.S. District Judge B. Lynn Winmill ordered that the state either simply place the proposed initiative on the ballot or allow the group to collect the signatures electronically. The state appealed, and the case with startling speed went to the U.S. Supreme Court. On a 4-2 decision, the court sided with the state, ordering a stay of the Winmill decision.

The Supreme Court, as often happens, didnt go to the center of the issue the voters-rights matter and it did not specifically reverse the Winmill decision, though it may have felt that way. But whats there is worth considering.

First, the majority decision (written by Chief Justice John Roberts) pointed out that, oddly enough, different federal courts have established different guidelines for what states can and cant do in initiative procedures (one reason the high court might have granted certiorari permission to bring this case to it). It said: The States depend on clear and administrable guidelines from the courts. Yet the Circuits diverge in fundamental respects when presented with challenges to the sort of state laws at issue here. According to the Sixth and Ninth Circuits, the First Amendment requires scrutiny of the interests of the State whenever a neutral, procedural regulation inhibits a persons ability to place an initiative on the ballot. ... Other Circuits, by contrast, have held that regulations that may make the initiative process more challenging do not implicate the First Amendment so long as the State does not restrict political discussion or petition circulation.

The Supreme Court didnt really land on this turf in its Idaho decision, but the majority did focus on the right of the state more than the right of the initiative proponent: The District Court did not accord sufficient weight to the States discretionary judgments about how to prioritize limited state resources across the election system as a whole.

Thats not an unreasonable point, but it leaves a massive gap in how to review something like this. In her dissent, Justice Sonia Sotomayor zeroed in on balancing harms to stay applicant against harms to respondent in other words, balancing the interests of the state and the initiative backers, rather than simply disregarding the interests of the backers. She acknowledged that allowing the electronic signature would be a burden on the state and counties and it would be but she argued it should be considered in context.

Putting a still finer point on it: The stay granted today puts a halt to their signature-collection efforts, meaning that even if respondents ultimately prevail on appeal, it will be extremely difficult, if not impossible, for them to collect enough qualifying signatures by any reasonable deadline for the November ballot. In other words, the delay occasioned by this Courts stay likely dooms to mootness respondents First Amendment claims before any appellate court has had the chance to consider their merits (and, indeed, before this Court has had the chance to consider any potential petition for certiorari).

So in balancing the rights of a state government against those of its voters, the Supreme Courts majority seems to be putting its thumb on the states side of the scale. That may be worth giving some careful thought when you look, as historically we long have, to the nations highest court as a protector of the rights of the American people.

See original here:

Supreme Court placed its thumb on Idaho's side of the scale - Lewiston Morning Tribune

Amicus brief filed by the Reporters Committee for Freedom of the Press and 16 media organizations

Court: U.S. District Court for the Southern District of New York

Date Filed: Aug. 6, 2020

Background: In June, Jessica Denson, a former staffer for Donald J. Trumps 2016 presidential campaign, filed a class-action lawsuit against the campaign to nullify the nondisclosure agreement each staffer was required to sign.

Densons attorneys argue that the nondisclosure agreement is overly broad and indefinite, running contrary to established New York public policy. They also claim it violates the First Amendment by requiring a waiver of the right to engage in political speech.

In a motion for summary judgment, Densons attorneys asked the U.S. District Court for the Southern District of New York to declare the Trump campaigns form nondisclosure agreement void and unenforceable.

Our Position: The district court should grant summary judgment to the current and former Trump campaign staffers who have signed the challenged nondisclosure agreement and hold that the nondisclosure agreement is void and unenforceable.

Quote: When political campaigns require campaign staff to sign NDAs, they chill staff members speech and prevent the public from learning vital information about candidates for political office.

Related: Earlier this year, the Reporters Committee filed a friend-of-the-court brief supporting Mary Trumps efforts to publish a book about her uncle, President Donald Trump. The brief argued that a confidentiality agreement Mary Trump had signed 19 years earlier is unenforceable because it runs contrary to established public policy and the First Amendment.

In 2019, a federal appeals court ruled that Baltimores practice of forcing victims in police misconduct cases to sign nondisclosure agreements in order to settle is unconstitutional. The Reporters Committee and 19 media organizations had filed a friend-of-the-court brief in the case, arguing that the routine practice of using nondisclosure agreements silences the victims in these cases, restricting the news medias ability to report on police misconduct allegations.

Original post:

RCFP: Trump campaign's nondisclosure agreements are unenforceable - Reporters Committee for Freedom of the Press

City Council passes resolution condemning federal actions against peaceful protesters

San Diego Community News Group

On a 6-2 vote,the City Council on Aug. 6 passed a resolution affirming the First Amendment rights of American citizens and denouncing unlawfultacticsused bythe United States governmentagainst protestors peacefully engaged in constitutionally protected activitieson the streets of Americas communities.

TheresolutionalsoassertstheCityCouncils right to protectthe peace and preservethe wellbeing ofSan Diegans without intervention from federal law enforcement officers,especially when their assistance is not requested and their actions may fall outside of their jurisdictional authority.

Seeing an escalation of violence due to the presence of federal forces in places like Portland does not sit well with me or the majority of our City Council, Gmez said. I thank my Council colleagues for standing with me and the San Diego chapter of the Truman National Security Project in signaling to our residents that we fully support their First Amendment rights and that we condemnthe use of unconstitutional activities by federal law enforcement agencies.

In addition to denouncing the federal governments recent response to protests and asserting San Diegos authority in local matters of public safety, the resolution:

Supports efforts of U.S senators and representatives attempting to hold federal law enforcement agencies accountable.

Directs the Citys Office of Government Affairs to monitor federal legislative efforts.

And requests that the City Attorney monitor the activities of federal law enforcement agencies on City streets and other City areas and respond to violations of law by the federal law enforcement agencies.

See the original post:

City Council passes resolution condemning federal actions against peaceful protesters - On a 6-2 vote the City Council on Aug. 6 passed a resolution...

Some of her friends, she said, had already begun posting links to Line, a messaging app popular in Japan, in case they were forced to switch. To Ms. Han, the order seemed un-American.

Trump is violating our rights to connect with our families and friends. If WeChat is really banned, the executive order seems rather unconstitutional, it violates the First Amendment, she said. It may sound exaggerated here, but I do hope WeChat wont be blocked.

The order could end up restricting a variety of dealings between Americans and Tencent.

American companies could, for instance, be barred from advertising on WeChat, cutting them off from a key channel for reaching Chinas vast consumer market. Tencent could be prohibited from distributing WeChat through Apples and Googles app stores, which could leave users unable to receive software updates, or unable to use the app entirely.

Apple and Google did not respond to requests for comment.

The White House order could even prevent Tencent from purchasing American equipment for the servers from which it operates WeChat. If the company uses those same servers to run other internet products and services, then a wider swath of its business could be affected, according to David Dai, an analyst in Hong Kong with the investment research firm Sanford C. Bernstein.

This would be the worst-case scenario for Tencent, Mr. Dai wrote in a research note on Friday.

Tencent, which has a market capitalization well above $600 billion, said on Friday that it was reviewing the executive order to get a full understanding. The companys shares fell almost 6 percent in Friday trading on the Hong Kong Stock Exchange.

TikTok said it was shocked by the White House order, which it said had been issued without any due process.

At a daily news briefing on Friday, the Chinese Ministry of Foreign Affairs spokesman Wang Wenbin called the order a nakedly hegemonic act, saying that on the pretext of national security, the U.S. frequently abuses national power and unreasonably suppresses relevant enterprises.

Continued here:

Targeting WeChat, Trump Takes Aim at Chinas Bridge to the World - The New York Times

INDIANAPOLIS (AP) An Indiana man, allegedly angered by the removal of a tree, is charged with a hate crime for attempting to intimidate an African American neighbor because of his race, the U.S. Justice Department announced Thursday.

Shephard Hoehn, 50, became angry when a construction crew began removing a tree from the neighbors property on June 18, according to the Justice Department. Hoehn allegedly burned a cross next to a fence near the neighbors property; displayed a swastika and displayed a large sign containing a variety of anti-Black racial slurs. Hoehn also allegedly threw eggs at the neighbor's home and played the song ``Dixie repeatedly.

Although the First Amendment protects hateful, ignorant and morally repugnant beliefs and speech, it does not protect those who choose to take criminal actions based on those beliefs, said U.S. Attorney Josh Minkler. This office will continue to prosecute federal hate crimes to the fullest extent of the law.

Efforts to reach Hoehn were unsuccessful because a telephone number couldn't be found. It wasnt immediately known if Hoehn had a lawyer to speak on his behalf.

According to the criminal complaint filed in the U.S. District Court for the Southern District of Indiana, Hoehn admitted to actions listed in the court document during interviews with FBI agents. He allegedly said he knew the racial connotations of his actions, that he knew his actions would be disturbing to his neighbor because he is Black, and that he took such actions because he knew they would evoke an emotional response in his neighbor. However, Hoehn asserted he wasn't a racist and he was exercising his First Amendment rights.

Link:

Man accused of targeting Black neighbor with swastika, slurs - STLtoday.com

Federal workers lost a court challenge to a government rule banning them from having conversations about opposing President TrumpDonald John TrumpBiden says his faith is 'bedrock foundation of my life' after Trump claim Coronavirus talks on life support as parties dig in, pass blame Ohio governor tests negative in second coronavirus test MORE or impeaching him.

U.S. District CourtJudge Paula Xinis in Maryland ruled this week that the union representing the workers did not sufficiently demonstrate that the rule violated their First Amendment rights.

Xinis, who wasappointed by former President Obama, wrote in her ruling that the plaintiffs did not provide any specific allegation as to how the Advisory Opinion interferes with their First Amendment rights.

She added that the plaintiffs argued simply that their members speech is chilled if the Advisory Opinion is allowed to stand, but provide little reason as to why.

The Court finds that Plaintiffs have failed both to aver claims fit for judicial review and to convince this Court that the balance of hardships weighs in their favor. Because Plaintiffs claims are not ripe, this Court lacks jurisdiction to hear them, she ruled.

The Office of Special Counsel, an independent federal agency, first warned in 2018 before Trumps impeachment that it would deem statements on resistance and impeachment to violate a federal law prohibiting federal workers from supporting or opposing political candidates in their official capacities.

"To the extent that the statement relates to resistance to President Donald J Trump, usage of the terms 'resistance,' '#resist,' and derivatives thereof is political activity," the office wrote in a memo.

The American Federation of Government Employees (AFGE) had argued that the guidelines expanded beyond the laws bounds and infringed on its members' freedom of speech and said the ruling was "still evaluating the courts opinion."

"[T]he decision is an obvious disappointment. The courts opinion does not give sufficient consideration to the profound chilling effect that OSCs guidance has on the First Amendment rights of federal employees. We look forward to providing a more comprehensive statement once we have completed our evaluation," saidAFGE National President Everett Kelley.

The Office of Special Counsel celebrated the ruling this week, saying it preserves the offices important advisory role.

This is a good outcome, and I appreciate the Court's thoughtful opinion, said Special Counsel Henry Kerner.

Read the original post:

Federal workers lose challenge to ban on discussing Trump impeachment | TheHill - The Hill

Chicagos first jury trial since the start of the coronavirus pandemic ended Thursday when federal jurors, clad in face masks, convicted an Ottawa man of threatening an FBI task force officer and others.

That trial played out amid the new normal that also includes hand sanitizer and constant social distancing, though. So after the trial ended, a few jurors offered their own verdict on the new safety protocols for jury trials at the Dirksen Federal Courthouse.

I felt like they were extremely thorough, Elizabeth Reihl said. I think they walked through the juror experience from the very beginning from where you park. I can tell that they looked through the full process and did every checkpoint.

Under the new jury trial plan at Dirksen, jurors have been spread out beyond the traditional jury box, and theyve been allowed to take breaks and deliberate in a separate courtroom. Public seating has been limited, and witnesses have been asked to wipe down the witness stand when their testimony ends. Jurors have also been given plastic bags filled with supplies.

Theyve got a little hand sanitizer in there and sanitizing wipes, said Elizabeth Boyd, who said she also had a positive experience serving as a juror this week.

Reihl said jury service is a chance to see democracy up close. Having served on two state court juries previously, she called it a beautiful, beautiful thing, and its nothing to get out of or try to avoid.

U.S. District Judge Edmond Chang acknowledged the jurors unusual service following the verdict that found Robert Haas, 40, guilty on 13 criminal counts.

This was the first jury trial that has been held in this courthouse since early March, Chang said. Youve shown extraordinary dedication to serving your community. It makes me proud to be an American.

Earlier Thursday, Assistant U.S. Attorney Barry Jonas delivered his closing argument while masked and seated at the government table. He still moved around in his chair and gestured with his hands for effect, telling jurors that Haas was an angry person with anti-Semitic beliefs. He said that wasnt why Haas was on trial, though.

This case is not about his beliefs, Jonas said. Its not about his anger. Its not about his hatred. This case is about the threats.

Prosecutors said Haas crossed a legal line when he leveled several threats toward an FBI task force officer and others through text messages, voicemails and online social media posts, as well as in recorded comments following his arrest in June 2019.

I dont care if its a cop, prosecutor, judge, politician or elite, Haas allegedly wrote in one online post. You try to stop me from telling the truth I will cut every throat in your home. Try me!

Haas represented himself and testified Wednesday with help of a stand-by attorney appointed by the judge. During his cross-examination, he admitted making several of the comments at issue. Assistant U.S. Attorney Erin Kelly even asked him whether he believed the FBI task force officer should be killed.

In a way, yes, I do, Haas said.

During his closing argument Thursday, Haas said he was goaded into making the comments by federal agents who tried to chill his First Amendment rights. He previously told the jurors he lived in Moscow for a year and found a lot of things that the federal government and the people who provide our media to us are hiding from us.

They dont want you to see the real threat because its so disgusting that it will change your opinion, Haas said Thursday.

Go here to read the rest:

Chicagos first trial of pandemic ends with conviction, juror praise - Chicago Sun-Times

Notice explains that workers under OCSEA union power can freely cut off union dues deductions, warns employees against signing away their rights

Columbus, OH (August 6, 2020) National Right to Work Foundation staff attorneys today issued a special legal notice to State of Ohio employees regarding their First Amendment rights under the Janus v. AFSCME US Supreme Court case. The notice comes after an estimated 28,000 State of Ohio workers were freed of restrictions in exercising those rights as a result of a lawsuit against the Ohio Civil Service Employees Association (OCSEA, AFSCME Council 11) union brought by a group of State of Ohio employees with free legal representation from the National Right to Work Legal Defense Foundation.

The class-action lawsuit Allen v. AFSCME challenged OCSEAs maintenance of membership policy that blocked workers from exercising their right to end union dues deductions except for a brief escape period once every three years at the expiration of the union monopoly bargaining contract.

Right to Work attorneys argued that the restriction was unconstitutional under the 2018 Janus v. AFSCME Supreme Court decision, which was argued and won by Foundation staff attorneys. In Janus, the Court struck down mandatory union fees for public sector workers as an infringement of their First Amendment rights. It also ruled that the government can only deduct union dues or fees with an individuals affirmative consent, including a knowing waiver of their First Amendment right not to fund union activities.

As a result of this lawsuits settlement, union officials have given up their attempts to enforce the coercive policy based on union-designed dues deduction cards, which Foundation staff attorneys argued failed to meet the standard laid out in Janus. This means approximately 28,000 workers are now free to stop dues at any time.

The full notice is available at https://www.nrtw.org/ohio-janus/.

The notice explains the simple process by which state employees can exercise their right to end dues deductions, complete with sample resignation letters. It also warns employees that OCSEA union bosses may solicit them to sign new dues deduction forms which are not covered by the terms of the settlement. In light of that, the notice reminds workers that under Janus no State of Ohio worker can be forced to sign a union dues deduction form as a condition of employment, no matter what union agents may tell them.

OCSEA intends to solicit employees to sign new membership and dues deduction cards that purport to restrict when employees can stop the deduction of union dues from their wages, the notice reads.

All State of Ohio public workers must be aware that they cannot be forced into abandoning their First Amendment right to refrain from subsidizing an unwanted union hierarchy just to keep their jobs, commented National Right to Work Foundation President Mark Mix. Any State of Ohio public servant who is falsely told that they must sign a union dues deduction form should contact the Foundation for free legal assistance in defending their Janus rights.

The recent settlement is not the only time Ohio public employees have with National Right to Work Foundation legal aid successfully challenged union boss attempts to limit their rights.

Seven other Ohio public employees won the first-in-the-nation victory against unconstitutional escape periods with Foundation aid in January 2019, after they filed a class-action federal lawsuit challenging a similar policy created by AFSCME Council 8 bosses. They won a settlement ending the restrictions for themselves and their coworkers. That win was followed by two other Ohio public workers, Connie Pennington and Donna Fizer, successfully ending escape period restrictions with Foundation assistance in 2019.

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in more than 250 cases nationwide per year.

Read the original here:

National Right to Work Foundation National Right to Work Foundation Issues Special Legal Notice for State of Ohio Employees Freed from Illegal OCSEA...

from the I-guess-a-law-is-good-if-it-makes-something-illegal dept

You can't always pick your fighter for Constitutional challenges. Sometimes you're handed an unsympathetic challenger, which makes defending everyone's rights a bit more difficult because a lot of people wouldn't mind too much if this particular person's rights are limited. But that's not how rights work.

A pretty lousy decision has been handed down by a Minnesota federal court. A challenge of two laws -- one city, one state -- has been met with a judicial shrug that says sometimes rights just aren't rights when there are children involved. (h/t Eric Goldman)

The plaintiff is Sally Ness, an "activist" who appears to be overly concerned with a local mosque and its attached school. Ness is discussed in this early reporting on her lawsuit, which shows her activism is pretty limited in scope. Her nemesis appears to be the Dar Al-Farooq Center and its school, Success Academy. Ness feels there's too much traffic and too much use of a local public park by the Center and the school.

Here's how she's fighting back against apparently city-approved use of Smith Park:

Ness has taken it upon herself to document activity at site. That includes maintaining a public blog and Facebook page all about the DAF/Success Academy controversy, complete with photos and video of street traffic, kids being dropped off at school, and people otherwise going about their business.

Her legal representation in this lawsuit isn't that sympathetic either.

The American Freedom Law Center, which claims that the battle for Americas soul is being waged in the courtrooms across America against secular progressives and Sharia-advocating Muslim Brotherhood interests, is co-counseling the case. The Southern Poverty Law Center calls that organizations co-founder David Yerushalmi an anti-Muslim activist and a leading proponent of the idea that the United States is threatened by the imposition of Muslim religious law, known as Shariah.

Her lawyer says this has nothing to do with the school's religious affiliation. Her co-counsel, David Yerushalmi, disagrees.

In a statement, he says Ness predicament is just another example of encroachment on our liberties when Islam is involved.

Ness became involved when the mosque opened its school and obtained a Conditional Use Permit for Smith Park that allowed students to use it during school days. Ness believes the permit is being violated on a daily basis by students' "excessive" use of park facilities that makes it "impossible" for nearby residents to use it at the same time.

To document these supposed violations, Ness has approached children in the park and parked across the street to take photographs/record DAF students using the park. She had two run-ins with local law enforcement before filing her lawsuit. After the most recent law enforcement encounter, Bloomington police attempted to charge Ness with felony harassment, but the Hennepin County Attorney's office declined to bring charges against her. Bloomington prosecutors also declined to prosecute Ness.

Ness sued, claiming the laws cited infringed on her Constitutional rights and that the ongoing threat of prosecution has resulted in her curtailing her documentation of park use by the school.

The problem is the laws. Ness' behavior is problematic but it shouldn't be criminally problematic. First, the state's harassment law -- as quoted in the court's opinion [PDF] -- does not require prosecutors to prove intent.

Subdivision 1. Definition. As used in this section, harass means to engage in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim regardless of the relationship between the actor and victim.

Subd. 1a. No proof of specific intent required. In a prosecution under this section, the state is not required to prove that the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated, or except as otherwise provided in subdivision 3, paragraph (a), clause (4), or paragraph (b), that the actor intended to cause any other result.

Then there's an additional ordinance -- one put in place by the city of Bloomington after Ness' two run-ins with the local PD -- that criminalizes Ness' documentation of park activities.

(24) No person shall intentionally take a photograph or otherwise record a child without the consent of the child's parent or guardian.

This is amazingly broad. It criminalizes journalism and the recording of criminal acts by minors. This revision appears to have been crafted solely to target Ness and her activism. Ness was also a frequent commenter at Bloomington city council meetings until filing this lawsuit.

The court says Ness has no standing to challenge the laws. According to the judge, she does not face a credible threat of prosecution. The decision cites the two refusals to prosecute, as well as prosecutors' statements on the issue.

Ness claims she intends to monitor an issuethe non-compliant use of DAFs facilities and the use of Smith Parkby filming and photographing the activity in the physical vicinity of DAF, which may include filming and photographing people. Compl. 36, 47, 70, 71; Ness Decl. 6, 18, 28. Ness does not claim a desire to surveil individuals or track their location by filming or photographing them once they leave DAFs neighborhood. As Ness herself has stated, I try to make this as not about people . . . . Its not specifically about an individual. Its about the City collectively not doing their job. Jones Decl. Ex. 1 at 18:4918:53. Thus, as the County Attorney and the City both acknowledge, Ness intended conduct is not proscribed by the Harassment Statute because she is not tracking or monitoring a particular individual.

But then the court goes on to quote police officers' implicit threats of arrest as evidence Ness won't be subjected to further law enforcement scrutiny or prosecution.

Ness relies on the police report from the incident, which states that Officer Meyer asked [Ness] to stop filming, and that Ness was advised that she could be charged with harassment if the parents and principal felt intimidated by her actions. Compl. 54. However, the bodycam footage of the encounter establishes that Sgt. Roepke expressly told Ness this is a public place, . . . you have a right to . . . take pictures in a public place or video or, or anything like that. Theres not an issue with that. . . . [B]ut if youre doing it in a means to intimidate them or to harass them, then it becomes a problem. Jones Decl. Ex. 3 at 1:50. Sgt. Roepke also told Ness if you want to take some pictures, come and take some pictures and then move on. Id. at 7:50. When Ness described the August 2019 encounter to Detective Bloomer months later during her interview, Ness stated that Sgt. Roepke clarified Ness conduct was not harassing behavior, and told her to be careful and read the statute. Jones Decl. Ex. 5 at 36:2236:43. The police report of the August 2019 incident, particularly when viewed together with Sgt. Roepkes statements and Ness own recollection of the incident, does not rise to the level of a credible threat of prosecution. Ness decision to chill her speech, after being told by Sgt. Roepke that she had a right to take videos and that her conduct was not harassing behavior, was not based on an objectively reasonable fear of prosecution.

Unfortunately, this supposedly "unreasonable" fear of prosecution stems directly from the law, making it a lot more reasonable than the court says. Prosecutors do not have to prove intent. And, as the officer stated clearly, all it would take is for subjects of Ness' recordings to feel harassed. It doesn't matter whether or not Ness intended to harass anyone. That's pretty open-ended and that makes her fear of prosecution a lot more reasonable.

The court agrees Ness has standing to sue the city of Bloomington over its ban on filming children.

The City Defendants argue that [e]ven if Ness had standing to sue, her facial challenge to the ordinance under the first Amendment would fail. City Defs. Mem. Supp. Mot. Dism. [Docket No. 68] at 10 (emphasis added). However, the City Defendants briefing does not include an argument for why Ness might lack standing to challenge the City Ordinance. Ness intended conduct will include photographing and filming children in a City park without parental consent. This conduct is proscribed by the City Ordinance, and the City has not disavowed an intent to charge Ness with violating the City Ordinance if she were to engage in this conduct. Under these circumstances, Ness decision to chill her speech due to the existence of the City Ordinance is objectively reasonable. Ness has standing to challenge the City Ordinance.

But it says she has nothing to sue about because the ordinance does not affect her First Amendment rights.

Here, the City Ordinance makes no distinction based on who is the photographer or recorder, what use will be made of the photograph or recording, or what message will ultimately be conveyed. Because the limitation on its face does not draw distinctions based on a speakers message or viewpoint, it is content neutral.

Neutral, except as to the content of the recordings, which is what's targeted by the city's ban. But the court says the definition of "content" hinges on what the speech conveys, rather than what it contains.

Ness also points out the ordinance is unconstitutional because it fails to do what it purports to do: protect children from being recorded. The court disagrees, saying the ordinance is adequate enough to achieve its aims.

Ness argues that the City Ordinance is underinclusive because if a person takes a step outside a City park and films children from the street, the City Ordinance will not be violated. Ness contends this underinclusiveness undermines the Citys claimed interest in protecting childrens privacy and preventing them from being exploited or intimidated. However, requiring would-be recorders to collect images from a distance, rather from inside a City park, makes it less likely that a child in the park will feel frightened or that the childs identity will be ascertainable. Thus, the Citys important government interest in protecting children is not undermined by allowing a person to record children from just outside a City parks boundaries.

Finally, the judge says the ends justify the means. The judge appears to believe laws are "narrowly tailored" if they accomplish what they set out to do.

As discussed above, the City Ordinance promotes the important government interest in regulating the competing uses of City parks and protecting childrens privacy and sense of safety and freedom from intimidation while playing in a City park. This interest would be achieved less effectively without the City Ordinance. The City Ordinance is narrowly tailored.

Sure, and the city's attempts to achieve other interests would undoubtedly be more effective if the Constitution didn't exist. But it does. And the court is supposed to be a check against government overreach, not an enabler of government efficiency.

The lawsuit is dismissed. The court says Ness can film kids from outside of the park's boundaries without fear of prosecution. Of course, this is what Ness was doing when she was approached by officers who told her to "take her photos" and "move on." Even if Ness complies with the terms of the ordinance the city appears to have passed just to stop her from doing what she was doing, she still faces the possibility of being subjected to further police action. And even if prosecutors refuse to press charges, there's still the hassle of the arrest, and the loss of time and freedom during the detainment. These harms aren't imaginary. The law written to make it more difficult for one Bloomington resident to engage in documentation of perceived permit violations stays on the books.

Most people will probably be fine with this outcome. After all, it mainly affects someone whose interest in park usage seems to be primarily motivated by bigotry. This is all but confirmed by her choice (or acceptance) of the American Freedom Law Center's legal representation. But bad people can still raise legitimate Constitutional complaints. This isn't a victory for Bloomington. It's a loss for its residents who are subject to a badly written law. Even if they have no desire to violate the ordinance, the law can still be wielded against citizens engaged in legitimate activities (like news gathering), thanks to this court's support.

Filed Under: 1st amendment, activist, children, free speech, photography, privacy, sally ness

See original here:

Federal Court Can't See Any First Amendment Implications In Local Ordinance Blocking The Photography Of Children - Techdirt

In May, I posted that a lawsuit filed by Southborough residents against selectmen and the Town was moving to the Federal Courts. Based on an amended complaint, the complainants were able to return the case to Worcester Superior Court. In an indirectly related matter, the Attorney Generals Office found that the Town again violated Open Meeting Law.

The original incident that prompted the lawsuit partially related to an Attorney Generals Office 2018 finding that the Board of Selectmen violated Open Meeting Law. Resident Louise Barron accused the board of minimizing the issue and repeatedly breaking the law. The relates to then-Selectman Dan Kolendas outburst towards Barron during and following the comments. Additional claims against selectmen and the Town relate to actions by the board following the incident.

This June, the board received a new ruling from the AGs office that they again violated OML. The AGs office determined that the Town took five days longer than allowed to respond to the Barrons Attorneys request for certain meeting minutes.The finding was an informal action with no punishments or directives issued towards the board.

The attorney had asked the AG to determine that the Town was wrongfully holding back unredacted Executive Session minutes. She wasnt successful on that count.

On December 16th, Attorney Ginny Kremer submitted a request for unredacted meeting minutes from two Recreation Commission meetings. A response by Town Counsel, maintaining that no unredacted minutes would be released, was received on December 31st.The Assistant AG determined that was a violation based on the 10 calendar day requirement.

However, the Assistant AG found she was unable to determine if the confidentiality was justified.*

As for the lawsuit. . .

Selectmen had filed to move the case to the U.S. District Court based on claims that a residents First Amendment rights under the U.S. Constitution were violated. The Towns attorney argued that a federal court was the appropriate venue.

Since then, the complainants asked to be sent back to the countys court, stating that they were amending the complaint to remove the First Amendment claims. The return to the Worcester court was approved.

You may assume that the amended complaint would reduce the number of Claims lodged. In fact, the recent amendment ups the count from four counts to six.

Three counts new focus solely on Kolenda.The amended list of Counts in the complaint are:

Initially, the first count above also referenced First Amendment Rights and was lodged againstKolenda, Shea, Healy, Bracccio and Stivers [sic]. An additional Count has been removed that focused solely on the First Amendment and charged Kolenda, Shea, Healy, Bracccio, Stivers, and Town of Southborough of violating Barrons First Amendment Rights.

The amended complaint still demands a jury trial.

*The AAGs letter explains:

The complainant challenges the Boards assertion that the April 25 and May 7, 2019 executive session minutes are protected by the attorney-client privilege and exemption (c) ofM.G.L. c. 4 7(26). . . .

Here, the Board is not relying on the Open Meeting Law as a basis for withholding the minutes, but rather has released the minutes subject to redaction pursuant to the attorney-client privilege and a Public Records Law exemption.Because the executive session minutes at issue here are no longer being withheld from the public under the Open Meeting Law, we find no violation of that Law in this respect.

The Open Meeting Law authorizes the Attorney General to investigate a complaint alleging a violation of the law and to request documents in the course of that investigation, but does not give us the authority to determine whether the Boards assertion of the attorney-client privilege was justified. . . In addition, the Attorney General may not require a public body to disclose any documentary material which would be privileged. . . . If the complainant disagrees with the Boards determination that these redactions are privileged, she may file an Open Meeting Law complaint in Superior Court to challenge the Boards decision to withhold the minutes, and request that the court review the purportedly privileged documents.

Follow this link:

Barron lawsuit amended to return to Worcester Superior Court; another OML violation determined - mysouthborough

August 5, 2020

Posted: August 5, 2020

Updated: 1:15 PM

KUSI Newsroom

SAN DIEGO (KUSI) San Diego County health officials have reported 290 new COVID-19 cases and three additional deaths, among the lowest numbers in the past month, although recent days have seen over 500 positive cases.

USC Professor of Pharmaceutical and Health Economics, Joel Hay, joined Good Morning San Diego to explain his frustration with how our public health officials are responding to the coronavirus pandemic.

As you know, Public Health Officials here in San Diego and across the country have relied on shutting down businesses in order to slow the spread of coronavirus in the community. Many Americans have been forced to permanently close their businesses because of this, and cases dont seem to be decreased at all.

Professor Hay believes shutting down the economy is the wrong approach to combat the virus. Hay told KUSIs Jason Austell, this virus is everywhere, it has been everywhere since at least March 2019. It spreads so rapidly, that its been in every community of the world for months and months and months.

Hay pointed to Sweden as proof that there are better ways to combat the virus. Sweden didnt shut down their economy, and Hay says they are only seeing 1 case per day. For a country with over 10 million people, Hay believes their response was a major success.

Furthermore, Hay explained he is not an advocate of wearing masks because they have little to no effect on stopping the spread of coronavirus.

Not only am I not an advocate of wearing masks, I consider them unconstitutional, they violate the First Amendment. By the way, do you know what the First Amendment says? It says Congress shall pass no law, not a little law, not Faucis opinion, Congress shall pass no law abridging the right of the people to freely assemble and freely express their opinion. My opinion is masks are an emasculation, and they are a violation of my free speech rights, which under the First Amendment, no law shall limit my First Amendment rights to free speech and free expression and not wearing masks he explained.

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USC Professor Joel Hay says we should not be shutting down the economy to fight COVID-19 - - KUSI

Nearly 60 years ago, Associated Press reporter Malcolm Browne was sent to Saigon to report on the conflict between the Communist North and American-backed South. He was soon joined in the AP bureau by Peter Arnett and photojournalist Horst Faas, and they found themselves competing with upstart UPI reporter Neil Sheehan and brash New York Times journalist David Halberstam on the beat as the Vietnamese civil war erupted into an American-led war of Cold War containment.

The consequences of that escalation the protests and culture wars, the draft and the quagmire were all years away. But the reporting those journalists did, and the price they paid for it, foretold what was in store for America. That story has been eclipsed by Vietnams more provocative media moments (My Lai, Agent Orange, Walter Cronkite declaring the war unwinnable on national TV), but its resuscitated by filmmaker Thomas D. Herman in his documentary Dateline-Saigon.

The Vietnam experience of Halberstam, Sheehan, Browne, Arnett, and Faas upended how conflict was covered in the American press, and it gave the government and its enablers ammunition in its war against the First Amendment and the reporters some still feel cost the country victory. And despite being more than a half century past, Vietnam has proven it will never be done with us nor we with it. Dateline-Saigons release comes as the country is more divided than at any time since the 1960s. The fault lines are familiar civil rights, brutal crackdowns of protests, state-sponsored attempts to delegitimize the press and they vibrate throughout the film

Herman spoke with the Star-Revue about his unexpectantly relevant film and the journalists at the center of it. The conversation has been edited for length and clarity.

Dateline-Saigon is built on really great interviews, some with people who are no longer around, like David Halberstam, who died in 2007, and Malcolm Browne and Horst Faas who both died in 2012. When did you start working on this, and why did it take so long to complete?

I started in 2003 or 2004, and at the time I didnt know what the film was going to be. I had been a field producer for CNN and spent some time in Vietnam on some projects for some stories on the aftermath of the war. While I was there, there happened to be a reunion of men and women who had covered the war as journalists. In talking to them, I heard some amazing stories and met many fascinating characters. As you might imagine, the kinds of people who go to cover those stories are not necessarily going to be insurance actuaries or bank tellers. Theyre a different kind of person. In doing some research, I realized there really wasnt a documentary on the subject of journalism in Vietnam, which was very controversial and remains so to this day. So I started filming, and it went on over a number of years. Part of the reason for that was I would have to stop and go out and raise some more money, and that had benefits as well as detriments. The detriment being it took longer; the benefits were that some of the material I wanted to use in the film had been classified and I didnt have access to it until later on, like some of those secret White House tapes, which I had pushed to have declassified.

It took close to 15 years to make this damn thing, in the course of which, as you observed, three of the protagonists died. Fortunately, I was able to get them before that happened. I was fortunate to get these people. I ended up doing more than 60 interviews: print journalists, newspaper, magazines, wire service, TV journalists, radio, photojournalists, historians, military people, and others. And the film emerged out of those many interviews, and it was a story that very few people knew about, how these young men, all in their 20sI think actually Malcolm Browne was the oldest at 30got sent there when nobody thought it was going to be a very important story. None of the big shot reporters wanted to go, so they sent these young men. They had lived through World War II, they were real Cold Warriors, so their inclination was to support the American effort. Its what happened to them when they realized the government was lying, and they all went through something of a crisis of conscienceparticularly Halberstam and Sheehan, who wanted to report positively at first but then they realized the government was lying. And when they started to report the truth, they got called pinkos or traitors or cut off of information or put on assassination lists, got beaten up, put in jailall of those things happened.

Collections of Vietnam War reporting are fairly common, but we rarely see or hear directly from the people whose bylines are on the stories and rarely get the story behind the reporting.

Ive been told by a number of people that the example set by Halberstam, Sheehan, and the others is a real guide for people covering conflict today and what theyre reporting. For example, Dexter Filkins covered the war in Iraq and now hes a correspondent who writes for The New Yorker. He had gotten to know Halberstam, and he told me that quite a number of his colleagues whether it was in Iraq or in Syria or in Afghanistan or elsewheretook Halberstams book about Vietnam, The Best and the Brightest, with them. Dexter spoke at Davids memorial service and said something along the lines of, when the official version that the reporters were getting didnt match what they were actually seeing on the streets of Baghdad, theyd asked themselves what would Halberstam and Sheehan and these other greats of an earlier generation have done? Dexter also said that any reporter who has ever tried to hold his government to account learned from Halberstam, Sheehan, and the others that the truth is not just a point of view, it doesnt adhere to the person who shouts the loudest, and it doesnt necessarily belong to the person with the most power. Thats so relevant to today, and it makes this film about more than Vietnam. This is a film about the importance of a free press, an independent media, holding government to account, speaking truth to power. When I started making Dateline-Saigon, I didnt know anything more about Donald Trump than he had a bunch of failing casinos in Atlantic City and an ego that was so large it was difficult to walk for him to walk through a door. I had no idea that he would be elected president and then declare war on the media.

How did your estimation of these journalists change in the making of the film?

I knew a little bit about some of them and even less about a few others. I had read Sheehans reports, and I knew that he was the guy who got the Pentagon Papers. Id read a number of Halberstams books. I had been fascinated, even before this film, in the coverage of Vietnam because it is perhaps the most controversial period or case history of journalism in this country. Maybe the period were going through now well eclipse that. And then I got to know each of these five well. I had multiple interviews with each of them, I got to know them and their families, I spent time with them, and I developed an enormous respect for them. Among the interesting things I learned was that each of these guys had very little experience, very little reputation when they went in there. They each of them went on to win a Pulitzer Prize for covering essentially the same story of Vietnam. Each of them went on to have illustrious, if not legendary careers winning all sorts of awards and becoming very famous in their own right. To a person, they told me that their experience in Vietnam as a journalist was the single most important professional experience, the single most important story they covered in their very long, illustrious, award-winning careers. And beyond that, they said that the relationships they developed with each other were the most important professional relationship theyd established in their entire lives. I was interviewing them when they were in their 70s. They went in there as competitors, but because of what they went through they were forced to rely on each other to protect each other and they became lifelong friends. Halberstam was the godfather for Neil Sheehans oldest daughter. Sheehan is the godfather to Halberstams kids. They became very close.

Sheehan says in the film that the government realized it had made a mistake allowing journalists to have unfettered access at the start of the war and that was a mistake they would never make again. Because of how long it took to make it, the film touches on two live wires of current history as they intersect with press freedoms and access: one being the moment were in now, and the other the experience of journalists embedding in Iraq a decade ago.

Youre absolutely right. If you go to the service academies or wherever they teach Public Information Officers, they go into Vietnam as the big mistake. We cant give journalists unfettered access to whats going on. Initially, after the Vietnam War, they didnt even allow journalists nearby. So, for example, when Reagan invaded Grenada in 1983, journalists werent allowed to go watch American troops putting their lives on the line. That was specifically in reaction to Vietnam. So what the government then came up with is this idea of embedding, which is better than nothing but it is still a form of censorship. You have to go with the troops and you really arent supposed to look around independently. We spent about a weekend shooting in Baghdad with Peter Arnett. We did a stand up with Peter outside of some blown up hotel, and he talks about how the information that journalists have access to in Baghdad is much less than they had in Vietnam. When we went to Baghdad, it was during a really difficult period and when it was a very dangerous place, we had to of course go to the embassy to let them know we were there, which is a good thing to do. But we also had to go to the military to get a credential that would allow us to move around. We had to sign a whole bunch of forms, among which were, you are not allowed to quote or refer to any member of the military anonymously. You cant say a source, you have to use his or her name, which is effectively backdoor censorship. So, yeah, the experience of Vietnam has, in many ways, set the rules for how the government will allow conflict to be reported today. I think the controversy over Vietnam will live beyond my lifespan and yours. It will be controversial in many ways for many years and for many reasons. For example, a significant number of people today still believe that it was the critical reporting of Halberstam, Sheehan, and the others who came after that caused us to lose the war. Well, thats nonsense.

We hear this idea of a Vietnam Syndrome that gripped the government after the war, which put a brake on militaristic interventions and prevented the U.S. from rushing headlong into something like Grenada. You mentioned this pernicious myth that journalists cost the country the war. Do you think theres a kind of Vietnam Syndrome when it comes to the press and how the American public and political class look at media, journalism, and the First Amendment?

Im hopeful that the viewpoint that journalists caused us to lose the war is a minority viewpoint. But I think another very contemporary and relevant point, and I think youve picked up on this, is President Trumps war on the press is not the first time the government has declared war on the press. Trump has taken it to a new level and has gone to lengths that no one else previously in his position has gone and has really ignited an anti-journalism movement or fever in this country. But this is not the first time. The First Amendment is precious to me freedom of speech, freedom, assembly, all of that but its something that every generation has to struggle to maintain. Its not something that is happening only today. Its not a one-time thing. It happened during Vietnam. President Nixon had his enemies list with a number of journalists names on it. It happened to a lesser degree in World War I, under President Woodrow Wilson and his attorney general. Censorship was imposed by Lincoln during the Civil War. There was not censorship imposed during Vietnam. There were a lot of rules, and the journalists didnt break those rules, but Kennedy and then Lyndon Johnson knew they couldnt impose censorship. The country wouldnt stand for it. Freedom of the press is essential to a democracy, in my opinion. It was obviously essential to a democracy among the Founding Fathers because there wouldnt have been a First Amendment and it wouldnt have been so importantly defended and described by politicians and by the Supreme Court for many years afterwards. But its under attack right now in a way, I think, that perhaps it has never been previously. We cannot take it for granted. Fortunately, theres some extraordinarily good journalism going on today and some smart and honorable people who understand the importance of freedom of the press not only among so-called liberals; true conservatives understand the importance of this, as well. But every generation has to fight for it.

Dateline-Saigon is now available on DVD and video on demand from First Run Features. Visit firstrunfeatures.com for more information.

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Dateline-Saigon remembers the journalists who revealed a dirty war by Dante A. Ciampaglia - The Red Hook Star-Revue

Protesters gather in front of the Mark O. Hatfield federal courthouse in downtown Portland, where some demonstrators have been arrested and others released from jail on the condition that they not attend any more protests. Spencer Platt/Getty Images hide caption

Protesters gather in front of the Mark O. Hatfield federal courthouse in downtown Portland, where some demonstrators have been arrested and others released from jail on the condition that they not attend any more protests.

A number of people arrested at demonstrations in Portland, Ore., say the terms of their release prevent them from attending protests going forward, a stipulation First Amendment experts have called cause for concern.

ProPublica reported on Tuesday that at least a dozen protesters arrested in recent weeks are prohibited from attending demonstrations within city or state limits, or in general, while they await trials on federal misdemeanor charges. Protesters say this was one of several conditions including abiding by a curfew, avoiding the area surrounding the federal courthouse and appearing for court dates that they had to agree to in order to leave jail.

Bailey Dreibelbis, 23, is one such protester. He told NPR's Vanessa Romo that he was arrested on the evening of July 22 and released the following afternoon on certain conditions, including that he would not attend any more protests in Portland.

Of the terms of his release, Dreibelbis said his public defender was "pretty clear that if I wanted to be out of there that day, that I would have to take them."

"She kind of chuckled with me, because I didn't do anything illegal upon arrest," he added. "I did not assault an officer, I did not set anything on fire."

Dreibelbis said he entered an open fence outside the federal courthouse, noting he did not see signs or hear announcements about that area being off limits. A spokesperson for the U.S. Attorney's Office said Dreibelbis was charged with failing to comply with a lawful order, which is a class c misdemeanor.

Like Dreibelbis, other protesters are facing charges in connection with petty offenses that took place on federal grounds.

According to ProPublica, 18 of the 50 protesters charged in Portland are accused of only minor offenses under federal law that criminalizes certain actions when they happen on federal property or against people on that property. These behaviors include "failure to obey a lawful order" and "disorderly conduct."

Fourteen protesters were charged with "failing to obey a lawful order" between July 21 and July 24 alone, ProPublica found.

Orders setting conditions for release, reviewed by ProPublica, were signed by a federal magistrate in Portland. Kevin Sonoff of the U.S. Attorney's Office said in an email to NPR that the prosecutors didn't seek the "no protest" restriction, that it was added by the court. He said the office did ask for those released to be barred from a five-block limit around the federal courthouse.

"This morning, we joined the Federal Public Defender's Office in jointly recommending to the court that these additional release conditions be modified," Sonoff said.

Dreibelbis told NPR he hadn't initially planned to attend a protest that night he said he roller skates after work and ended up in that part of town and is now barred from attending any other protests.

Legal experts told NPR that such a stipulation almost certainly violates individuals' First Amendment rights to free assembly.

"These conditions are deeply troubling and likely unconstitutional," Ramya Krishnan, staff attorney at the Knight First Amendment Institute, wrote in an email. "A blanket ban on attending future protests in the city seriously infringes on the First Amendment right to free assembly, and isn't reasonably related to any legitimate goal of pretrial release."

Enrique Armijo, a law professor at Elon University, explained that it is not uncommon for criminal defendants to give up certain rights as a condition of their release, but those conditions are typically very narrow, in the interest of public safety and tightly connected to the basis of prosecution.

The agreements in Portland, he said, are overly broad in that they do not show a clear public safety connection between the right the person is being asked to give up and the harm that person is alleged to have committed.

"There's no way you can say that because of something you may have done with respect to federal property, a federal court is going to say you cannot engage in First Amendment-protected activity in the entire city in which that federal property is located," Armijo said. "That's just the definition of what First Amendment law considers overbreadth: What you're being asked to give up is much, much greater from a constitutional perspective than that which you are alleged to have done."

Elizabeth Goitein, who codirects the Brennan Center for Justice's Liberty & National Security Program, said this kind of "blanket First Amendment restriction" violates one of the most core constitutional rights.

"The fact that these people may or may not have committed a misdemeanor is irrelevant, they certainly haven't been tried or convicted of any such offense and they are presumed innocent until proven guilty," she said. "Even after someone has been convicted of an offense, that does not mean that the government can require them to give up First Amendment freedoms going forward."

Goitein also noted that this practice raises red flags even beyond Portland because it could potentially happen in other cities.

"It's a problem if it happens once," she said. "And if it's happening systemically across a major city in this country, we need to be extremely concerned."

People have gathered for demonstrations against racism and police violence in Portland every night since the death of George Floyd in May, with tensions escalating after the Trump administration deployed federal agents to the city to protect the federal courthouse there earlier this month. Oregon Gov. Kate Brown said federal agents will begin a phased withdrawal on Thursday.

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For Some Arrested At Portland Protests, Release Is Conditional On Not Attending More - NPR

A federal appeals court has upheld a $400,000 jury award to an Illinois school superintendent whose contract was not renewed amid turmoil that started with her effort to have an audit of district finances.

The superintendent, Denean Adams of the 2,200-student Harvey school district in suburban Chicago, alleged in court papers that after she started the process for the audit in 2015, one school board member phoned her and said Adams was "itching for an ass-kicking."

Adams filed a complaint with the police, and after a period of further discord in which the superintendent suspended the business manager for alleged financial irregularities, the board informed Adams that her contract would not be renewed. She took medical leave in 2016 and did not return.

Adams sued the board, alleging retaliation for exercising her First Amendment free speech rights. A federal district court jury ruled for Adams and awarded $400,000 in damages. The trial judge added some $190,000 in attorneys' fees.

The school board appealed to the U.S. Court of Appeals for the 7th Circuit, in Chicago, arguing that a police report is a personal grievance, and not a matter of public concern, and thus was outside the scope of First Amendment protection.

In its Aug. 3 decision in Adams v. Board of Education of Harvey School District No. 152, a three-judge panel of the court ruled unanimously that Adams's report to the police was protected by the First Amendment and that the jury reasonably concluded that the report played a role in ending her employment.

While a police report might normally be considered a personal grievance, the court said, Adams's report was not a straightforward report of a crime.

"It was a report by the superintendent of a school district that she had been threatened with violence by a member of the school board," the opinion said, adding that "a potential for physical altercations between public officials (the superintendent and an elected member) implies that an important public institution was not working properly. This is a legitimate subject of public concern."

Further, the discord began when Adams proposed a forensic audit, and that idea "seems to have unsettled at least one member of the board."

The appeals court opinion suggests that much of Adams's speech during the episode was related to her job, and under Supreme Court precedent the board could have argued the speech was unprotected by the First Amendment on that basis.

"Almost everything that happened in this dispute is on-the-job speech within the scope of the superintendent's and members' duties," the appeals court said. But the board had failed to raise an argument under the Supreme Court's 2006 decision in Garcetti v. Ceballos until it was too late, the appeals court said.

The appeals panel rejected a cross-appeal from Adams seeking an increase in attorney's fees from the $190,000 that was awarded to $485,000, calling the request "outlandish."

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Court Upholds $400000 Jury Award to Superintendent Ousted Amid Discord - Education Week