Daily Archives: March 7, 2017

Ex-NSA analyst: Intel sources say White House ‘targeting journalists’ with ‘help from Russian intel’ – Raw Story

Posted: March 7, 2017 at 10:00 pm

CNN's Jim Acosta confronts Donald Trump at a White House press conference (screen grab)

Former NSA analyst John Schindler, who now is a national security columnist for the Observer, reported on Tuesday that his sources in the intelligence community believe that President Donald Trumps White House is colluding with Russian intelligence to target journalists.

In a tweet on Tuesday, Schindler revealed: Learned fm very reliable IC sources that Trump WH, w/help fm Russian intel, is targeting US journalists.

Learned fm very reliable IC sources that Trump WH, w/help fm Russian intel, is targeting US journalists. Rough road ahead. Get ready, peeps

John Schindler (@20committee) March 7, 2017

Although Schindler provided no additional details, its no secret that Trump has all but declared war on the media during his first 45 days in office. However, the president has embraced conservative media sources like Fox News, Breitbart and various right-wing blogs.

In one case, the White House tried to punish Politico reporter Alex Isenstadt by planting a false story accusing him of laughing at the death of a Navy SEAL. Trump has called the media fake news and an enemy of the people.

The fake news doesnt tell the truth, Trump told a group of conservatives last month. It doesnt represent the people, it doesnt and never will represent the people, and were going to do something about it.

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Tucker, Jim Himes Spar Over Alleged NSA Surveillance [VIDEO … – Daily Caller

Posted: at 10:00 pm

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Rep.Jim Himes stopped by Fox News Monday broadcast ofTucker Carlson Tonight todiscuss surveillance of Trump Tower, which President Trump claimedwas carriedout by the Obama administration during the 2016 election.

Only minutes into the interview, the Connecticut Democrataccused Carlson of mis-categorizing anysurveillanceperformed on private citizensas spying, when its really law enforcement. (VIDEO: Josh Earnest Wont Deny Trump Tower Was Surveilled By Obama Administration)

WATCH:

You used the word spying, and I dont know what that means, Himes, who sits on the House Intelligence Community, told Carlson. Is that what police do when theyre listening in on drug dealers and child molesters?

Yes, and sometimes its justified, and sometimes it isnt, Carlson responded. But lets call it what it is.

No, spying is when we go to Russia andtry to recruit Russiangenerals into giving us Russiansecrets, Himes countered. When law enforcement is listening to anybody, its law enforcement.

You can watch the entire interview below.

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Burns files bill to protect property owners – Cleburne Times-Review

Posted: at 9:59 pm

The Fifth Amendment grants the federal government the right to exercise its power of eminent domain the power to take private property for public use by a state, municipality, private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property.

State Rep. DeWayne Burns, R-Cleburne, filed House Bill 2684 on Thursday, which aims to level the playing field for property owners when they face off with government entities and corporations with infinitely greater resources.

Burns said it was his personal experience with eminent domain that prompted him to file the bill.

I know first hand the burden that the eminent domain process places on landowners, he said. You climb off a tractor and there is a person there telling you they are there to negotiate a fair price for land you didnt want to sell and at the end of the day if you dont want to sell it, it will be taken from you.

Burns said his family owns property in the southwest part of Johnson County and several years ago when the Barnett shale was really active, he and many other landowners in the area found themselves in negotiations for eminent domain.

We had multiple pipeline companies that were wanting to come across our property, he said. Some of the companies were easy to deal with and some were not. Sometimes we felt threatened by them. I felt like landowners at the time had no information and nowhere to turn and were dealing from a position of not knowing what is going on.

That is why I am fighting to ensure property owners are in the best possible position when faced with the taking of their property. In Texas, private property rights are a sacred principle, and I believe this legislation will help preserve that right without adversely affecting the businesses that are helping to grow our economy.

Malachi Solomon Tomlinson posted on the Times-Review Facebook page that he is in favor of the proposed bill.

In theory, Burns plan would give people more power over their own property against corporations, he said. Sad that we had to get to this point to make a bill when the constitution and the clause already give those rights. But what about when the state turns around and finds loopholes to seize land or work on it like they often do highways or roads? Still powerless.

Jennifer Hamblin said she thinks HB 2684 might not be effective.

We never truly own [our property] anyway even after the loan is paid off you still pay taxes, she said. You dont pay taxes they take your property either way. The government will take it like they do everything else. Plus they only give you barely what it is worth which if you try to find the same amount of property it costs double what you already had. Not very fair.

Burns said Texas is a growing state with a strong appetite for new development which has put a target on Texas property, leaving landowners searching for a fair offer and process in eminent domain cases.

The new legislation will provide for the reimbursement of landowner expenses if they are sued by a condemner and are ultimately awarded significantly more than the final offer, he said, It will also spell out the use and restriction details required within a condemners bona fide offer to ensure the entity will properly use and maintain the property.

Burns legislation was met with approval from individuals and organization who advocate on behalf of property owners across Texas.

This new legislation is a tremendous step toward fixing a faulty process that places landowners at a huge disadvantage when navigating the condemnation process, said Richard Thorpe, president of the Texas and Southwestern Cattle Raisers Association. We are grateful to have strong allies like Burns who are committed to defending the rights of private landowners and preserving our future.

HB 2684 will level the playing field

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Secret Court Orders Aren’t Blank Checks for General Electronic Searches – EFF

Posted: at 9:59 pm

Imagine this: the government, for reasons you don't know, thinks you're a spy. You go on vacation and, while you're away, government agents secretly enter your home, search it, make copies of all your electronic devices, and leave. Those agents then turn those devices upside down, looking through decades worth of your files, photos, and online activity saved on your devices. They don't find any evidence that you're a spy, but they find something elseevidence of another, totally unrelated crime. You're arrested, charged, and ultimately convicted, yet you're never allowed to see what prompted the agents to think you were a spy in the first place.

Sounds like something from dystopian fiction, right? Yet it's exactly what happened to Keith Gartenlaub. In January 2014, the FBI secretly entered Gartenlaub's home while he and his wife were on vacation in China. Agents scoured the home, taking pictures, searching through boxes and books, andcriticallymaking wholesale copies of his hard drives.

Agents were authorized by the secret Foreign Intelligence Surveillance Court ("FISC") to search for evidence that Gartenlaub was spying for the Chinese government. Theres only one problem with that theory: the government has never publicly produced any evidence to support it. Nevertheless, Gartenlaub now sits in jail. Not for spying, but because the FBIs forensic search of his hard drives turned up roughly 100 files containing child pornography, buried among thousands of other files, saved on an external hard drive.

Gartenlaub was tried and convicted, and he appealed his conviction to the Ninth Circuit Court of Appeals. EFF (along with our friends at the ACLU) recently filed an amicus brief in support of his appeal.

There are plenty of troubling aspects to Gartenlaubs prosecution and conviction. For one, and unlike normal criminal prosecutions, neither Gartenlaub nor his lawyers have ever seen the affidavit and order issued by the FISC that authorized the search of his home. There are also legitimate concerns about the sufficiency of the evidence used to convict him.

But we got involved for a different reason: to weigh in on the Fourth Amendment implications of the FBIs searches of Gartenlaubs electronic devices. The unusual facts of this case gave us an unusually good opportunity to push for greater Fourth Amendment protections in all searches of electronic devices.

Heres why: when agents copied and searched Gartenlaubs devices, they were only authorized to search for national security-related information. But the prosecution that resulted from those searches and seizures had nothing to do with national security at all. So, either the FBI seized information that was outside of the warrant (which the Fourth Amendment prohibits); or it was relying on an exception to the warrant requirement, like plain viewan exception that allows law enforcement to seize immediately obvious contraband when the government is in a place to lawfully observe it.

Plain view makes sense in the physical world. If cops are executing a search warrant for a home to search for drugs, they shouldnt have to ignore the dead body lying in the living room. But the way plain view works in the digital contextespecially forensic computer searchesis not at all clear. How far can cops rummage around our computers for the evidence theyre authorized to look for? Does a warrant to search for evidence of drug dealing allow cops to open all the photos stored on our computer? Does an order authorizing a search for national security information let the government rifle through a digital porn collection? And where do we draw the line between a specific search, based on probable cause for specific information stored on a computerwhich the Fourth Amendment allows and a general search for evidence of criminal activitywhich the Fourth Amendment prohibits?

Our electronic devices contain decades' worth of personal information about us. And, in many ways, searches of our electronic devices can be more intrusive than searches of our homes: there is information stored on our phones, computers, and hard drives, about our interests, our political thoughts, our sexual orientations, or religious beliefs, that might never have been previously stored in our homesor, for that matter, anywhere at all. Because of the sensitivity of this data, we need clear restrictions on law enforcement searches of our electronic devices, so that every search doesn't turn into the type of general rummaging the Fourth Amendment was designed to prevent.

In our brief, we argued this case gave the Court a perfect opportunity to set a clear rule. We argued that the FBIs search of Gartenlaubs hard drives for evidence of regular, domestic crimes violated the Fourth Amendment, and we urged the Court to adopt a rule that would prohibit the FBI from using evidence that it obtained that was outside the scope of the initial search authorization. This would be a promising first step in limiting law enforcements electronic search powers and in protecting our right to privacy in the digital age.

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Drop Second Amendment ‘rights’ pretense – The Des Moines Register – DesMoinesRegister.com

Posted: at 9:59 pm

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John Rose, West Des Moines, Letter to the Editor 6:48 p.m. CT March 6, 2017

A federal firearms transaction record, which includes a background check, lays near a selection of guns at Ron's Pawn and Gun in Des Moines.(Photo: Christopher Gannon/The Register, Christopher Gannon/The Register)Buy Photo

It seems as though the Republican majority in the Legislature is about to ram through a flurry of new gun laws that they falsely label Second Amendment rights. The Second Amendment, like all of the others included in the Bill of Rights, is not an absolute. Like all others, is defined by interpretation of the federal courts. Therefore when some say that it enables open or concealed carry of guns with virtually no restrictions, they are simply voicing an opinion.

At this point, the Supreme Courthas ruled that the Second Amendment does indeed apply to the private ownership of guns by private citizens, but they also ruled that governments have the right to impose reasonable restrictions on that ownership. Several states have placed severe restrictions on concealed or open carry and others have all but removed all restrictions. The federal courts have declined to overturn any state law thatseverely restricts concealed or open carry. Therefore, the right to carry may be termed a legal right granted by state government, but it is not a constitutional right.

It is time for proponents of relaxing Iowas gun laws to drop the pretense of defending our constitutional rights and call it what it is. What they really want is to legislate their opinion into law, and if public opinion polls are to be believed, their opinion is at odds with the majority. Therefore, I challenge them to drop their attempts to ram these proposals through the legislature. If we really must have gun laws that are more lax, let the people decide through the referendum process.

John Rose, West Des Moines

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House to debate gun bill on IFC’s ‘Second Amendment Day’ – Radio Iowa

Posted: at 9:59 pm

Its the Iowa Firearms Coalitions Second Amendment Day at the state capitol and gun rights advocates are ready to watch the Iowa House debate a bill that includes many of their priorities. Kurt Liske, vice president of the Iowa Firearms Coalition,called ita show of appreciation from House Republicans.

The fact that we have a day that we scheduled months out in advance, to have them essentially tailor their schedule to ours is almost unheard of, Liske said this morning. The fact that theyre doing this is a real testament to you guysthe fact that youre out there helping with campaign work, things like that.

More than 70 members of the Iowa Firearms Coalition crowded into a capitol committee room thismorning for a briefing on the bill. Members wore orange stickers that read: I support the Second Amendment and I vote.

Representative Matt Windschitl, a Republican from Missouri Valley who is floor manager of the gun bill, spoke to the group.

A lot of things in this bill, including the stand your ground provisions, have been a long time coming, Windschitl said, and it looks as though weve finally got an opportunity to push this down to the governors desk.

Windschitl is a trained gunsmith and his family runs a gun store in Missouri Valley. He uses the word phenomenal to describe the bill as currently crafted.

With the make-up of the legislature the way it is, we have gotten this bill to a place where I didnt even expect us to as far as the freedoms we have in here, Windschitl said. This sets us up for future successes. This sets us up so we can come back next year and get our freedoms back that have been encroached upon over generations.

Windschitl, whohas received death threats becauseof his advocacyfor the legislation, said theres some hate and discontent out there about the bill. He urged Iowa Firearms Coalition members to lobby theirSenators today.

Weve still got our work cut out for us when we move this over to the senate, Windschitl said. There are a lot of senators that are very eager to get all of this done, but the majority in the senate is new and so some of them have not faced the challenges that go into running bills like this, because they can get kind of controversial.

House debate of the bill is expected to get underway early this afternoon.

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What the Second Amendment really says about guns: Letters – Orlando Sentinel

Posted: at 9:59 pm

A closer look at the Second Amendment

In response to William Ivesters letter to the editor on Monday about the Second Amendment, I ask that he look again at the amendment. It is clever to pick phrases out of context, but that is misguided. Amendment 2 in its entirety states, A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Clearly, the last part of the sentence refers to the first part a well-regulated militia. In todays parlance, I believe that means each states National Guard. Last time I checked, every gun owner in the United States was not a member of the National Guard.

The judiciary is expressly empowered, by the Constitution, to review, analyze and rule on the meaning of the words of our Constitution. For example, where does the Constitution say guns? It doesnt. It says arms. It is the responsibility of the judiciary to determine what is meant by arms. Bombs? Anti-aircraft missiles? This word, like many others, has to be defined in each generation.

America of the 21st century is very different from the America of our Founding Fathers. Our ability to interpret the foundational documents of our Republic in light of the realities of the world we live in is crucial to the vitality of our nation. It is time, and it is appropriate and necessary, for our country to enact legislation that seeks to protect its citizens.

Cathy Swerdlow Longwood

As a graduate student studying writing at the University of Central Florida, I read Scott Maxwells Sunday column on grammar with great interest. It may surprise him to find out, though, that I am on his side.

While the self-appointed grammar police patrol public writing, ever vigilant for imagined crimes against the English language, modern linguistics scholars acknowledge that language changes, and the language rules change with it. They know and appreciate that Ernest Hemingway splits infinitives, Jane Austen ends sentences with prepositions, and E.B. White himself uses sentence fragments and comma splices. Great writing comes from brilliant use of words, not blind obedience to dictatorial grammar rules.

And kudos to Maxwell for defending his writing with a good dictionary. What a great counterattack to grammar police brutality. Hopefully, these militant grammarians will reference their own 21st-century rule book before they literally pounce on Maxwell again.

Leslie Nixon Ormond Beach

Normally, I would excoriate the Sentinels editor for printing a letter like Bill Lanes on Sunday with its theme of "drip drip drip" as "evidence of collusion" between the Trump campaign and the Russians.

However, since the mainstream news sources coupled with the intelligence community and Democratic politicians offer the same nonproof of such, I'll give the newspaper a pass on publishing "fake news."

David Holley Orlando

In response to President Trump's accusation that President Obama wiretapped Trump Tower, Sen. Marco Rubio said if we find out it's not true, he'll have to explain what he meant.

Trump's history is to tell a lie and defend it aggressively, or say the media twisted his meaning, Then tell another bigger lie to divert attention from the first one. His lies are tied up in so many knots 100 sailors in 10 years couldn't untie them.

How about reversing Rubios plan of action? Demand that Trump prove his claim is true.

There is a truism that it's much easier to prove a positive than a negative. If hes as smart as we've been told, Trump could clear this up in minutes. His mendacity is mindful of the boy who cried wolf. One day the wolves will devour their creator.

James Weatherspoon St. Cloud

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Piers Morgan Gets a Dose of Second Amendment Reality on Good Morning Britain – Bearing Arms

Posted: at 9:59 pm

Australian immigrant Nick Adams appeared on Good Morning Britain with Piers Morgan and Susanna Reid to discuss President Trumps supposed Muslim ban.

Things took an interesting turn when Reid suggested Trumps Muslim ban is ineffective and instead suggested the president take a hardline stance on guns.

As a resident, if you want to make the U.S. safer, you dont target immigrants, you look at the biggest problem, surely threatening Americans everyday, and thats the absolutely shocking level of gun crime, Reid told Adams. And if President Trump directed his attention to towards tightening up controls on firearms that would immediately make the country a safer place.

Do you not understand that people lookat this from outside the United States and scratch their heads going, Why would you not want to have extreme vetting on lunatics or criminals getting their hands on high-power guns?'

Adams response to why the Second Amendment is important was spot on:

Author's Bio: Beth Baumann

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Students for the Second Amendment persevering after ammunition funding is revoked – University of Delaware Review

Posted: at 9:59 pm

Kirk Smith/THE REVIEW After the university pulled funding for the RSOs ammunition, the Students for the Second Amendment have found alternative means of sponsorship.

BY MADIE BUIANO SENIOR REPORTER

Two months after the university revoked the organizations funding to buy ammunition, Zoe Callaway, president of Students for the Second Amendment, hasnt stopped in her pursuit to bring firearms to campus.

In the meantime, the club will host various speakers throughout the semester. Callaway has spoken to the National Rifle Association, advocates for gun rights and the Second Amendment Foundation, a nonprofit organization dedicated to educating the public on Americas constitutional heritage to possess firearms.

Callaway hopes to bring Gays for Guns to campus, a group dedicated to teaching LGBTQ communities proper firearm use. For her last semester as president, Callaway wants to co-sponsor the event with Haven, the schools largest LGBTQ organization.

It would be a really good way to come together, especially since the country is so divided, Callaway said. To bring these two groups together would speak volumes.

Havens president, Elias Antelman, said he didnt have enough knowledge on the subject to comment.

The university provided ammunition funding to the club for approximately three years. Under the new university president, Dennis Assanis, that is no longer the case. Callaway and Jeremy Grunden, the newly appointed vice president of Students for the Second Amendment, were unexpectedly informed of the change over winter break. According to Gruden, the new policy will make the RSOs recurring trips to the shooting range harder.

They did it under our noses, just slipped it in there and didnt really tell anybody, Grunden said.

The unanticipated change will not affect the groups ability to buy ammunition for the time being. In July, Fox News wrote a story on Students for the Second Amendment titled College rifle, pistol-shooting clubs under fire, underfunded amid gun debate. Following the story, Callaway said people donated a couple thousand dollars to their club, money that they will use in substitute of university funds.

Weve also been offered discounts at different stores, Callaway said. People are willing to help us.

Despite funding restrictions, Grunden said that the group has other priorities, like continuing the fight to bring concealed carry to campus, a goal Calloway announced in October. Since then, the group has pursued support through state legislation, rather than through the school administration. The second semester president said she has spoken to senators and representatives in Delaware that have expressed interest.

We all understand its going to take a long time, longer than we like, Callaway said. We still need to find people who will help us draft a bill, and who would be willing to present it at legislative hall.

If her plan to bring concealed carry to campus is successful, Callaway already has an idea for moderating who will be allowed to carry firearms. She said that if members of the community already have their concealed carry permit, they should be permitted to have guns on their person.

Having a permit from a different state means that a screening process has already occurred. Callaway said there should be a mandatory class that people who hope to carry firearms should take as a way to stifle concerns throughout campus.

In the meantime, Students for the Second Amendment is planning a range trip following spring break. On these trips, the groups members go to a local shooting range to shoot paper targets.

According to Grunden, these excursions are of particular interest to members who are first time shooters because it provides them with an opportunity to learn about gun safety and how to properly operate a weapon.

Weve even taken foreign exchange students to the range, Callaway said. Guns are completely banned in China, so this is their only chance to ever shoot a gun.

Other than a range trip Callaway and Grunden said they will be reserving a kiosk in Trabant to advertise and educate the UD community on what their club is about. Callaway said they have been making new pamphlets that have information about gun laws in local states. They are hopeful that this will bring in new members, she said.

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Judge Gorsuch’s First Amendment jurisprudence – SCOTUSblog (blog)

Posted: at 9:58 pm

Apart from the establishment clause, the Supreme Court has for the last decade taken a strong view of the First Amendments protections. Judge Neil Gorsuchs decisions on the U.S. Court of Appeals for the 10th Circuit align with that trend. In many ways, Gorsuchs opinions in this area are similar to those of the late Justice Antonin Scalia with the possible exception that Gorsuch has been more willing to find not only that the First Amendment has been violated, but also that defendants were not entitled to qualified immunity in those cases. It is unclear whether Gorsuch will continue that trend if he is confirmed, because cases in front of the Supreme Court tend to be closer than cases in the courts of appeals, and so qualified immunity is typically easier to get. I focus on cases in which Gorsuch has written a majority opinion, concurrence, or dissent, without regard to whether the decisions in question were precedential, on the theory that Gorsuchs writings will provide the greatest insight into his mindset.

Freedom of speech, the press and assembly

With few exceptions, Gorsuch has been willing to find in favor of First Amendment plaintiffs and against defendants attempting to assert immunity against a First Amendment claim.

In Walton v. Powell, in 2016, Gorsuch wrote a unanimous opinion affirming a district courts decision to allow a government employees Section1983 claim alleging that she was fired for her political affiliation to proceed. The court held that the McDonnell-Douglas burden-shifting framework does not apply to First Amendment retaliation claims, which are governed by a more plaintiff-friendly standard. It then applied that standard to uphold the employees claim, and deny the defendants qualified immunity defense.

In 2007, in Casey v. West Las Vegas Independent School District, Gorsuch wrote an opinion finding that a school district superintendents statements to her own school board were not protected citizen speech, but her statements to the state attorney general were. The court further held that qualified immunity was not available because it had been long established that when public employees speak to outside authorities on matters of public concern for reasons that are not job-related, their speech is protected.

In Rounds v. Clements, in 2012, Gorsuch wrote an opinion holding that a state prisoners First Amendment retaliation claim, which sought prospective relief, did not run afoul of the Eleventh Amendment. The prisoner, an electrician by trade, alleged that he suffered retaliation because he had reported to prison superiors that other prison officials were asking him to perform shoddy electrical work. The court held that the prisoner stated a claim, and that the claim fell under the Ex Parte Young exception to Eleventh Amendment immunity insofar as the electrician sought to be restored to his former status as a privileged prisoner.

In a notable 2016 dissent in A.M. v. Holmes, Gorsuch argued that a New Mexico statute prohibiting disruption in school did not apply to a seventh-grader who had pretended to burp in class. Distinguishing classroom antics from actions that substantially interfere with the actual functioning of the school, Gorsuch argued that the statute had been interpreted more narrowly than its text suggests, and disagreed with the majoritys decision to read it more broadly. The dissent did not rely on the First Amendment, but it suggests that Gorsuch may be willing to protect a substantial amount of on-campus speech.

Although these decisions all strongly suggest that Gorsuch will happily allow free speech claims to move forward, there are some open questions about how protective he will be of speech at the margins.

In Mink v. Knox, in 2010, Gorsuch wrote a concurrence in a case allowing a Section1983 claim against a deputy district attorney who had pursued a criminal libel charge against the publisher of an Internet-based journal. The court held, and Gorsuch agreed, that because the journal was engaged in parody, the speech was protected even as it related to matters of private concern. Gorsuch wrote separately to argue that the result was compelled by circuit precedent, chiding his colleagues for going further to defend that precedent. Although he did not tip his hand, the separate opinion suggests that Gorsuch may be more willing than some of his colleagues to permit libel claims against a parody.

In 2016, in Alvarez v. Grosso, Judge Gorsuch wrote an unpublished opinion holding that civilians had no right to attend military court-martial proceedings. The court held that commanders have wide discretion to bar civilians from the base, and that civilians have no constitutionally protected right to speak on military bases or to observe court martial trials.

The First Amendment and campaign finance

In Riddle v. Hickenlooper, in 2014, the 10th Circuit struck down a Colorado statute that effectively limited individual campaign contributions to write-in candidates to $200 while permitting donors to give up to $400 to candidates who ran in primaries. The statute had been challenged principally on equal protection grounds, but the First Amendment status of campaign contributions was also front and center. In a concurring opinion, Judge Gorsuch argued that the act of contributing to political campaigns implicates a basic constitutional freedom, one lying at the foundation of a free society and enjoying a significant relationship to the right to speak and associateboth expressly protected First Amendment activities. That language may suggest that Gorsuch is broadly sympathetic to the idea that money in politics is just another form of expression, and would be skeptical of campaign finance limits. On the other hand, Gorsuch cautioned against adopting a level of scrutiny for campaign contribution cases, noting that it wasnt necessary to do so in order to resolve the case, and that the Supreme Courts decisions had been unclear about what level of scrutiny applies.

The petitions clause

In 2007, in Van Deelen v. Johnson, Gorsuch wrote an opinion reversing a grant of summary judgment to county officials who had allegedly retaliated against a taxpayer who had filed appeals and lawsuits to challenge property tax assessments. Defending the right to petition the government for redress of grievances, Gorsuch wrote that [w]hen public officials feel free to wield the powers of their office as weapons against those who question their decisions, they do damage not merely to the citizen in their sights but also to the First Amendment liberties and the promise of equal treatment essential to the continuity of our democratic enterprise. Good luck, President Trump.

The religion clauses

In American Atheists, Inc. v. Davenport, in 2010, a 10th Circuit panel had held that 13 12-foot crosses erected on public land to memorialize deceased Utah highway patrol officers ran afoul of the establishment clause because a reasonable observer would regard those memorials as endorsing Christianity. Rehearing en banc was denied, and Gorsuch dissented from that denial. In the dissent, Gorsuch argued both that the 10th Circuit had strayed from the Supreme Courts precedents, which had not recently applied the reasonable observer test to public displays, and that the 10th Circuit had applied the test in an expansive way by treating the reasonable observer as somebody who is biased, replete with foibles, and prone to mistake. The dissent sends a very clear signal that Gorsuch is on board with the more conservative understanding of the establishment clause embraced by the late Justice Antonin Scalia.

Gorsuchs views on free exercise issues are less clear because, to the best of my knowledge, he has not written an opinion in a case in which a constitutional free exercise challenge was brought unaccompanied by a statutory challenge under the Religious Freedom Restoration Act (RFRA) or Religious Land Use and Institutionalized Persons Act (RLUIPA). In 2013, he wrote a concurring opinion in Hobby Lobby Stores, Inc. v. Sebelius, arguing that the individual owners of the Hobby Lobby stores (the Green family) were entitled to relief under RFRA. Gorsuch explained that because the Greens are the human actors who must compel the corporations to comply with the [Affordable Care Acts contraception] mandate, their own personal religious beliefs were burdened by the mandate. In the process, Gorsuch argued:

No doubt, the Greens religious convictions are contestable. Some may even find the Greens beliefs offensive. But no one disputes that they are sincerely held religious beliefs. This isnt the case, say, of a wily businessman seeking to use an insincere claim of faith as cover to avoid a financially burdensome regulation. See United States v. Quaintance, 608 F.3d 717 (10th Cir.2010) (an example of just that). And to know this much is to know the terms of the Religious Freedom Restoration Act apply. The Act doesnt just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nations long-held aspiration to serve as a refuge of religious tolerance.

Although this case arose under RFRA, and not the First Amendment, Gorsuch nevertheless signaled that he might take a very strong view of free exercise principles, consistent with the Supreme Court majority that affirmed the 10th Circuits decision in Hobby Lobby.

On the other hand, in 2014, in Ali v. Wingert, Judge Gorsuch wrote an opinion denying relief to a prison inmate who wanted to use only his newly adopted Muslim name on mail envelopes, instead of using both his Muslim name and his former name. The claims were brought under RLUIPA and also the First Amendments free exercise clause. Rejecting the RLUIPA claim, Judge Gorsuch acknowledged that if a prisoners sincerely held religious beliefs forbade any mention of a former name, then there might be a substantial burden on the inmate, but found that the facts in the complaint did not make such an allegation. Federal courts certainly are not arbiters of religious scripture or dogma, but to establish a RLUIPA claim they do require from the claimant some well-pleaded facts suggesting a substantial burden on a sincere religious exercise. The First Amendment free exercise claim failed for the same reason.

Also, in Abdulhaseeb v. Calbone, in 2010, Gorsuch wrote a concurring opinion in a RLUIPA case where the inmate alleged that a halal diet was not available. Gorsuch acknowledged that the law does not permit an institution to force an inmate to choose between violating his religious beliefs and starving to death. But he made it clear that he would not go further to hold that RLUIPA prohibits the prison from taking action that requires a prisoner to occasionally miss a normal meal because he refuses to eat the food, or that the statute requires any other accommodation for religious diet other than accommodating major religious holidays and the need to eat enough to live.

Posted in Nomination of Neil Gorsuch to the Supreme Court, A close look at Judge Neil Gorsuchs jurisprudence, Featured

Recommended Citation: Tejinder Singh, Judge Gorsuchs First Amendment jurisprudence, SCOTUSblog (Mar. 7, 2017, 11:16 AM), http://www.scotusblog.com/2017/03/judge-gorsuchs-first-amendment-jurisprudence/

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