Monthly Archives: June 2017

The dangers of reading micro expressions – HuffPost

Posted: June 28, 2017 at 5:56 am

Do We Really Want People to Learn How to Spot Micro Facial Expressions?

Paul Ekman Group

By definition, micros leak emotions that people dont want others to know they are feeling. Sometimes, even the person showing the micro is not aware of the emotion that is leaking out. My Micro Expression Training Tool (METT) enables those who study it to take this information from people attempting to conceal their emotions (and, in a sense, they are stealing this information).

Who has the right to do that, to tear away the curtains disguise? Certainly the Law Enforcement Officers (LEOs), although I have argued (a bit rhetorically) that LEOs who have been trained to spot micros should offer those they talk to the opportunity to wear a mask or facial cover.

The Fifth Amendment to the Constitution protects us from self-incrimination, but micros may provide the Law Enforcement Officer (LEO) who took our training just such incriminating information- just what the person involuntarily showing the micros doesnt want a LEO to know. Would it be in the spirit of the Fifth Amendment for LEOs who have learned how to spot micros to at least inform those they interview that they have been specially trained to take this information- to invade privacy without consent? Should they offer criminal suspects the right to wear a mask to preserve their Fifth Amendment protection?

Many people (lawyers, business operators, salespersons) whose interests are not always the same as those whose micros they learn to spot, can now (without forewarning) invade privacy, taking information without permission that the provider would not want them to have. I never thought about these issues when I developed METT, but I recognize that my training courses enable an invasion of a very private realm of peoples lives: the feelings they dont want everyone (and sometimes, no one) to know they are experiencing.

And yet, such an invasion of privacy can serve the public good. It helps the health care provider doctor, nurse, or other caregiver tune in and, therefore, be better able to help.

I once thought that I might be able to control who else would be able to use METT, but I learned from my colleagues in the Department of Defense that there is no way to do that. A tool, once created and accessible on the internet, is available to everyone who pays the nominal price. All I can hope, my Defense Department colleagues advised, is that it will be used more for what I consider to be good, to help people, than to harm or exploit people.

The proverbial cat is out of the bag, free to go anywhere!

Dr. Paul Ekman is a well-known psychologist and co-discoverer of micro expressions. He was named one of the 100 most influential people in the world by TIME magazine in 2009. He has worked with many government agencies, domestic and abroad. Dr. Ekman has compiled over 40 years of his research to create comprehensive training tools to read the hidden emotions of those around you. To learn more, please visit: http://www.paulekman.com.

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A Supreme Court call on the third party doctrine – Washington Times

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ANALYSIS/OPINION:

This week, constitutional law experts and the law enforcement community were abuzz after the U.S. Supreme Court added Carpenter v. United States to its docket, a case that could reshape government data collection and the Fourth Amendment in the internet Age. The Fourth Amendment asserts that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Timothy Carpenter, the petitioner in this case, alleges that his Fourth Amendment rights were violated.

The case comes at a time when domestic surveillance by intelligence agencies is under scrutiny, and smartphone and internet records are playing a greater role in law enforcement investigations. It raises an important legal question about the applicability of old doctrines that give the government immense power in the Information Age.

Carpenter was convicted of taking part in six armed robberies in Michigan and Ohio. The FBIs evidence at trial included information collected from his cellphone carrier without a warrant, including location information that placed him in the vicinity of the robberies. Police almost certainly could have gotten a search warrant for Carpenters phone records. The appeals court upheld his conviction and dismissed his argument because, as most courts hold in these cases, personal information gathered from businesses like phone companies is not a search or seizure and doesnt require a warrant.

Before the creation of the web or smartphones, courts developed whats known as the third party doctrine for Fourth Amendment cases. This doctrine denies that information turned over to a third party like phone call and location information automatically transmitted to a phone company when placing a call is protected by Fourth Amendment. The doctrine derives from Supreme Court decisions from the 1970s about phone and bank records.

Today, technological advancements mean we each turn over tremendous amounts of personal data to third parties simply with routine use of the digital services of our age. New services that transmit data to the internet cloud, like smart homes, voice-activated devices, and Google Docs, offer law enforcement an even bigger treasure trove of personal records that, under the third party doctrine, does not require a warrant to collect.

The mere fact that the Supreme Court agreed to hear the Carpenter case was a small victory for civil liberties groups. The third party doctrine is a blunt instrument that, in our connected world, permits too many low-value fishing expeditions by law enforcement. Cellular phone companies in particular are inundated with law enforcement subpoenas every year for user data, including user location. Verizon, for instance, reported that the government issued more than 120,000 subpoenas to the company in 2016 over 350 per day. Legal teams at Google, Facebook, Amazon and Uber are required to sift through similar government requests for information.

The political right and left have bristled in recent years against intrusive and often secretive government data collection. Conservatives were alarmed when The Wall Street Journal broke news last October that federal agents in Southern California had co-opted state license plate readers and drove around a parking lot to collect information about thousands of gun show attendees. For years, police departments around the country have spent millions acquiring cell site simulators that jam cellular signals and collect data from hundreds of nearby smartphone users. Progressives have alleged that these devices are used to identify people at mass protests.

The third party doctrine denies that such information can ever be unreasonably seized or searched. As the Cato Institute argues in its amicus brief in the Carpenter case, its time for the court to strip away the decades of privacy doctrine that has permitted police data collection to metastasize.

If the court takes up the Fourth Amendment issues, it should scrupulously apply the Fourth Amendments language: Are Carpenters phone records papers or effects? Were they searched or seized? Was the search or seizure unreasonable? Courts ask these questions in other criminal cases, but not when information leaves someones home or device. Justice must be served, but the third party doctrine short-circuits what should be a demanding constitutional analysis that protects us all.

Contracts between individuals and phone and app companies affirm the confidentiality of sensitive information, and courts should allow only reasonable searches of that data. We should not relinquish Fourth Amendment protections the moment a third party is involved especially in an era when devices in our pockets automatically transmit data.

Brent Skorup is a research fellow at the Mercatus Center at George Mason University. Melody Calkins is a Google Policy Fellow with Mercatus.

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A Supreme Court call on the third party doctrine - Washington Times

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Oh, The Places You’ll Go: Mobile Geolocation Data and the 4th Amendment – Lexology (registration)

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Early this month, the U.S. Supreme Court addedCarpenter v. United Statesto the roster for consideration in the upcoming October term.Carpenterwill mark the Courts first chance to address an important, as-yet unresolved question in the digital age: Does the Fourth Amendment require a warrant for law enforcement officials to obtain cell site location information, or CSLI, which reveal the location and movements of a cell phone user?

The case will address the tension between the Fourth Amendment and the Stored Communications Act, which Congress enacted as Title II of the Electronic Communications Privacy Act of 1986. The SCA specifies procedures that law enforcement may use to obtain certain records from third-party electronic communication services or remote computing services. But it does not require a warrant. Since its enactment, third-party service providers have routinely cooperated with law enforcement requests to disclosesubject to certain statutory requirementscustomer data. And notably the petitioner here does not attack the constitutionality of the SCA. Rather,Carpenterasks whether companies should require a warrant, supported by particularized findings of probable cause, before disclosing CLSI. This question has caused considerable doubt among service providers, which must balance responding to law enforcement demands for information with the privacy interests of their customers, and which also require a clear roadmap about what the appropriate procedures are.

The uncertainty among service providers responding to requests for customer information under the SCA is exacerbated by the existence of a significant circuit split concerning whether the Fourth Amendment applies to CSLI. There have been no fewer than 18 separate majority, concurring and dissenting opinions across five circuit courts on the issue, and courts have fractured over whether there is any reasonable expectation of privacy in CLSI and other customer data.Carpenterimplicates three different strains of Fourth Amendment jurisprudence: (1) the third party disclosure doctrine, (2) the physical trespass doctrine, and (3) the distinction between content and non-content information. The case will have the Court decide whether these doctrines, which first arose in the pre-digital world, still have continuing vitality today. And it will allow the Court to consider whether the accumulation of data by third-party service providersnow commonplacegives rise to any new privacy interests under the Fourth Amendment.

Background

In connection with the investigation of a series of armed robberies, federal prosecutors moved under the SCA for court orders requiring two cellular service providers to disclose 187 days of phone records, including CSLI, for petitioner Timothy Carpenter. Based on the CSLI, the government charged Carpenter with aiding and abetting robbery. Carpenter moved to suppress the evidence, but the district court rejected Carpenters argument and held that the governments collection was not a Fourth Amendment search. On appeal, the Sixth Circuit affirmed, holding (1) that the records did not disclose the contentof communications and thus were not entitled any Fourth Amendment protection; (2) that the disclosure of the records to third-party cellular providers defeated any reasonable expectation of privacy under the seminal caseKatz v. United States, 389 U.S. 347 (1967); and (3) that the physical trespass doctrinewhich the Supreme Court had revived in its recentRiley v. California, 134 S. Ct. 2473 (2014), andUnited States v. Jones, 565 U.S. 400 (2012), decisionsdid not apply.

Concurring in the outcome on alternative grounds, one member on the panel, Judge Jane Branstetter Stranch, wrote separately to air her concerns about the Fourth Amendment tests that courts have applied in this rapidly changing area of technology, especially in light of the sheer quantity of sensitive information procured without a warrant.

The Old Ways Just Dont Work

Carpenterdemonstrates the difficulty of applying the canonical tests under existing Fourth Amendment jurisprudence to the modern day. For example, there is the third party disclosure doctrine, which grows out ofKatzs reasonable expectation of privacy test. For someone to have a reasonable expectation of privacy in a piece of information, (1) that person must subjectively exhibit an expectation of privacy and (2) that expectation must be objectively reasonable. The core concept is that people have no reasonable expectation of privacy in any information they disclose to third parties, because they already subjectively surrendered any such expectation with the fact of disclosure. Where the doctrine applies, you cannot even get past the first step of theKatzframework, andKatzhas remained black letter law on the books for half a century now. But in the digital age, where persons passively disclose so much information about themselves (and their whereabouts) to third parties at all times, what reasonable expectation of privacy could possibly be left?

Or take the related distinction that the Fourth Amendment marks between content information and non-content information, such as addressing. The idea here is that a person has no reasonable expectation of privacy in non-content information, because that is frequently disclosed, either to third-party service provider or to the public more broadly. Consider, for instance, a package sent through the mail: itscontentsare unknown and thus the sender has a reasonable expectation of privacy in that. But all other information about the packagethe return and target address, the amount of postage on it, its size, shape, and weightis ascertainable by any mail carrier or member of the public that comes into contact with it. And so there is no reasonable expectation of privacy in that kind of information. On balance, CLSI appears closer to what courts have traditionally considered addressing or other non-content information: it does not tell you what a person said or did, it just shows you where a person was.

Finally, there is the trespass theory of the Fourth Amendment, which the Supreme Court resurrected in its recent cases dealing with technology. InJones, the Court held that the unauthorized placement of a GPS tracker on a car for long-term surveillance triggered Fourth Amendment protections. Similarly, inRiley, the Court held that law enforcement needed a warrant to search a mobile phone. But this trespass notion does not appear to have any place inCarpentereither. Police did not track Carpenter, or break into his cell phone; they merely asked for records from a third party who kept them.

None of these doctrines apply cleanly. Still, given the accumulation of information, there is still some visceral notion that the Fourth Amendment should apply here. The only question is how?

How MayCarpenterResolve This Tension?

While the petitioner here did not request a full rejection of the third party disclosure doctrine, the Court may cull back on the third party disclosure doctrine. Chief Justice Robertss majority opinion inRileysuggested that persons still have some reasonable expectation of privacy in sensitive information collected over mobile phones and stored by service providers. Similarly, Justice Sotomayors concurrence inJoneswarned against a strict application of the third party doctrine: I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose, is for that reason alone, disentitled to Fourth Amendment protection. In both cases, the Court signaled that stringent adherence toKatzmay stop making sense as technology evolves. But those cases both side-stepped the issue by instead turning to the doctrine of physical trespass, and that doctrine cannot sensibly apply to the facts ofCarpenter.

It is also possible that the Court might create a new strain of jurisprudence based on the quantity of records requested. Such an approach would likely introduce certain issues of line-drawing, for instance, if a warrant is required for long-term tracking, while the SCA is sufficient for short-term. But, as Justice Samuel Anthony Alitos concurrence inJonesand Judge Stranchs concurrence in theCarpentercase point out, that might be appropriate. After all, in the modern era, it is not the disclosure of individual, isolated data points that seem problematic, but rather the accumulation of that data over time.

Which test will the Court apply? Service providers, and their customers, will have to wait until this October term to find out.

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A New Day for the Second Amendment: Donald Trump Addresses the NRA – NRA ILA

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This article appears in the July 2017 issues of the Official Journals of the National Rifle Association.

The drumbeat of fake news continues as the elites disappointed by the 2016 election dedicate themselves to resisting the Trump administration.

Among their many false narratives is that Americans are no longer interested in firearms now that Barack Obama is out of the White House.

At least two big groups of people didnt get that memo.

One is comprised of the 2,045,564 Americans who were queried through the FBIs firearm background check database in April 2017. This was the second busiest April ever for that system. In fact, each month of Trumps presidency has seen over two million firearm-related background checks. Only in 2016, when Americans faced losing their Second Amendment rights forever, did the FBI run more checks during a January to April period.

The other group included the nearly 82,000 people who attended the NRAs Annual Meetings and Exhibits in Atlanta, Georgia in late April. This was our second-highest total of attendees ever. Fifteen acres of guns and gear on display at the Georgia World Congress Center said all that needed to be said about the vitality of Americas firearms industry.

But those werent the only encouraging signs that greeted the NRAs extended family reunion in the Peach State. Our Annual Leadership Forum drew an impressive line-up of speakers. Besides three sitting U.S. Senators (Georgias David Purdue, Alabamas Luther Strange, and Texas Ted Cruz), we heard from Interior Secretary Ryan Zinke and Florida Governor Rick Scott. Lt. Col. Allen West and Milwaukee County Sheriff David A. Clarke provided a distinguished presence from the uniformed ranks. And rounding out the guest list were Nevada Attorney General Adam Laxalt, former Major League Baseball great Adam LaRoche, and campus carry advocate Antonia Okafor.

But that was just the undercard, as it were. Because for only the second time in the NRAs history, we welcomed the sitting President of the United States (the last one before him being Ronald Reagan in 1983). For those of us who were on the front lines of the brutal 2016 election (and that included every NRA member present), it was not only an honor to have President Trump address the NRA, but one of the clearest possible lessons of the power the common person still holds in American democracy.

I began my remarks with a montage of film clips showing condescending figures from the political, media, and entertainment establishments dismissing Trumps chances of winning the election, contrasted with footage of the partnership forged between the NRA and Donald Trump. NRA members have always stood apart from the prevailing winds of elite opinion and political correctness to focus on the enduring values that have bound our country together from the beginning.

That resolve was never as evident or necessary as in 2016, when the fate of our country and the Second Amendment literally hung in the balance of the presidential contest. On the one hand was globalist and Second Amendment opponent Hillary Clinton, who claimed that the Supreme Court was wrong to recognize an individual right to keep and bear arms. On the other was Donald Trump, who had a Second Amendment position paper on his campaign website that began, The Second Amendment to our Constitution is clear. The right of the people to keep and bear arms shall not be infringed upon. Period. At stake was which of them would appoint the Second Amendments tie-breaking vote on the U.S. Supreme Court.

By the time President Trump addressed the crowd in Atlanta, he had already made that appointment by filling the late Justice Antonin Scalias seat with another constitutional originalist, Neil M. Gorsuch. Once again, we have a majority of support on the Court for our right to keep a gun in our home for self-defense.

President Trump had many stirring things to say during his address. But the line all of us will remember most is when he assured the members of the NRA: you came through for me, and I am going to come through for you.

More than that, however, you the NRAs members came through for America and for the freedoms we hold dear. And American democracy and its elevation of the common man and woman came through for all of us.

As ever, the fight for Americas soul will continue. But that Friday in Atlanta showed with the utmost clarity it is one we can win.

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Supreme Court refuses to hear high-stakes Second Amendment handgun case – Washington Examiner

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The Supreme Court on Monday declined to take a case about the boundaries of the Second Amendment's right to keep and bear arms, by saying it will not review a California self-defense law.

The petitioners in Peruta v. California who asked the Supreme Court to review the case called the controversy "perhaps the single most important unresolved Second Amendment question" left to come before the Supreme Court. The high court's action on Monday will leave that question unresolved.

The question the Supreme Court refused to hear is whether the Second Amendment gives people the right to carry handguns outside the home for self-defense, including concealed carry when open carry is forbidden by state law.

Justice Clarence Thomas dissented from the high court's decision not to take the case, which Justice Neil Gorsuch joined.

"At issue in this case is whether that [Second Amendment] guarantee protects the right to carry firearms in public for self-defense," Thomas wrote. "Neither party disputes that the issue is one of national importance or that the courts of appeals have already weighed in extensively. I would therefore grant the petition for a writ of certiorari."

He added, "For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a state denies its citizens that right, particularly when their very lives may depend on it."

California law generally prevents carrying a handgun outside a home, but concealed carry is allowed for those with a license. Applicants for such a license need to demonstrate "good cause" to obtain the license, which several sheriffs have taken to mean including carrying a handgun for self-defense, as the petitioners noted in their brief to the Supreme Court. But in San Diego, the sheriff defined "good cause" as requiring a "particularized" need for self-defense that separates the applicant from an average applicant.

A three-judge panel found the San Diego County Sheriff's policy unconstitutional, but was reversed by the 9th Circuit Court of Appeals. Since the Supreme Court did not take the case, the 9th Circuit's ruling will prevail.

"We should have granted certiorari in this case," Thomas wrote. "The approach taken by the en banc court is indefensible, and the petition raises important questions that this court should address. I see no reason to await another case."

Paul Clement, an attorney who several conservatives hoped to see included on President-elect Trump's Supreme Court short lists when looking to replace the late Justice Antonin Scalia, is listed as the counsel of record for the petitioners challenging the California policy and 9th Circuit decision.

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Supreme Court refuses to hear high-stakes Second Amendment handgun case - Washington Examiner

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SCOTUS just made a mockery of biology AND the Second Amendment – Conservative Review

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Conservative Review
SCOTUS just made a mockery of biology AND the Second Amendment
Conservative Review
Over the past few years, we have chronicled a pattern developing in the lower courts on the Second Amendment since the Heller decision. Not that we needed the Supreme Court to affirm the right to self-defense, which predated the Constitution, but the ...

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SCOTUS just made a mockery of biology AND the Second Amendment - Conservative Review

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SCOTUS Lets Ruling Stand Protecting Second Amendment Rights Following Non-Serious Misdemeanors – Breitbart News

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The issue revolved aroundBinderup v. the U.S. Attorney General, a case brought by the Second Amendment Foundation (SAF) on behalf ofDaniel Binderup. He pleaded guilty in 1996 to a misdemeanor charge related to a consensual relationship he had with a 17-year-old female employee, receiving three years probation and a $300 fine.Since thecrime could have resulted in jail timeof over one yeartriggering a federal gun law blocks firearms possessionBinderup sought protection of his Second Amendment rights.

The Third Circuit handed down an en banc ruling in Binderups favor and Obamas Department of Justice responded by seeking a Supreme Court review. The result of that review is that the Third Circuit decision stands.

Following SCOTUS announcement, SAF sent a press release to Breitbart News, saying:

The Third Circuit Courts favorableruling combined Binderups case withanother SAF case involvinga man named Julio Suarez. Hewas stopped in 1990 on suspicion of driving while intoxicated.At the time he was carrying a handgun and spare ammunition without a permit.He pleaded guilty in Maryland state court to the charge and received a 180-day suspended sentence and $500 fine. Asa result, he also lost his gun rights because the crime could have resulted in jail timeof more than one year. Neither man was ever incarcerated.

The pro-Second Amendment results ofBinderup v. the U.S. Attorney Generalwere accompanied by news that SCOTUS declined to hearPeruta v. California; a case revolving around Californias good cause requirement for concealed carry license acquisition. On January 12, 2017, Breitbart News reported SCOTUS was petitioned to review Perutain hopes of securing a ruling as to whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

For now, the Second Amendment community is cheering the ruling inBinderup but remains pensive overPeruta.

AWR Hawkins is the Second Amendment columnist for Breitbart News and host of Bullets with AWR Hawkins, a Breitbart News podcast. He is also the political analyst for Armed American Radio. Follow him on Twitter: @AWRHawkins. Reach him directly at awrhawkins@breitbart.com.

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SCOTUS Lets Ruling Stand Protecting Second Amendment Rights Following Non-Serious Misdemeanors - Breitbart News

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Americans take the First Amendment for granted. They shouldn’t under Trump – Sacramento Bee

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Sacramento Bee
Americans take the First Amendment for granted. They shouldn't under Trump
Sacramento Bee
The words of the First Amendment may be 45 of the the most important ever written. Those who doubt the value of those freedoms of religion, speech, the press, assembly and petitioning for redress of grievances might look to Asia, where I work, and ...

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Americans take the First Amendment for granted. They shouldn't under Trump - Sacramento Bee

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Iowa State officials knowingly violated students’ First Amendment rights, appeals court says – The College Fix

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Officials were on notice they were flouting decades of precedent

It was a new day, but same result for Iowa State University.

After asking a federal appeals court to reconsider its February ruling that the public university violated the First Amendment rights of pro-marijuana activists on campus, ISU got an even worse ruling earlier this month.

The 8th U.S. Circuit Court of Appeals doubled down on its original decision in Gerlich v. Leath that ISU singled out the campus chapter of the National Organization for the Reform of Marijuana Laws (NORML) by not letting it use the university logo on its T-shirts.

In a finding that could endanger college officials across the 8th Circuits jurisdiction of Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota, the appeals court refused to shield individual administrators from liability.

The case had united a broad coalition of national college groups, from pro-life activists to press freedom defenders and libertarians, in favor of NORML ISU leaders Paul Gerlich and Erin Furleigh.

We wanted the court to be aware that discrimination against speakers on campus is a common occurrence and a real problem, Casey Mattox, director of the Alliance Defending Freedoms Center for Academic Freedom, told The College Fix in a phone interview.

The alliance, which represented several of the friend-of-the-court filers, conveyed to the judges that viewpoint discrimination on campus, particularly against conservative speakers on university campuses, has a long track record and needs to be addressed, said Mattox.

No reasonable university official can think this is government speech

In an opinion for the three-judge panel, Judge Diane Murphy wrote that ISU had discriminated against Gerlich and Furleigh because of their viewpoints and political pushback from Iowa politicians.

In addition, the court found ISU did not engage in government speech by letting campus groups use its trademarks: Rather, it provided a limited public forum that facilitated the speech of private persons.

NORML ISU also did not violate the terms of the limited public forum, because the organization advocates for reform to marijuana laws, not the illegal use of marijuana, according to the panel.

MORE: Potheads, press and pro-lifers unite for student speech

The judges split, however, on the issue of qualified immunity, which excludes government officials acting in their official capacity from civil lawsuits unless they violate a clearly established constitutional or statutory right.

Murphy and Judge Jane Kelly said ISU administrators, including then-President Steven Leath, should have been aware of legal precedents going back decades that ban universities from using viewpoint discrimination in a limited public forum.

It was clearly established when administrators singled out NORML ISU in rejecting a series of T-shirt designs the chapter had submitted, according to the judges.

Judge James Loken wrote a dissent specifically on the qualified-immunity issue, saying administrators were neither plainly incompetent nor knowing lawbreakers when they rejected a string of proposed T-shirt designs.

The court cites no case in which school officials administering a trademark licensing program violated, or were even accused of violating, the First Amendment by denying proposed uses of the schools registered trademark, Loken wrote.

Its trademark licensing policy already prohibited products causing potential health risks such as tobacco: Based on these undisputed program policies, it was far from clear prior to this litigation that ISUs trademark licensing program was not a form of government speech.

Loken blamed Gerlich, then the president of NORML ISU, for publicly suggesting the university gave its stamp of approval to pro-marijuana advocacy. Gerlich bragged in the media that the original approval of the clubs T-shirt reflected nothing but support from the university, support for the group that was blowing our minds.

MORE: Court tells ISU to stop suppressing pro-weed activists

Judge Kelly challenged Lokens dissent in a concurrence, saying qualified immunity does not require a case directly on point nor a previous ruling that the action was explicitly unlawful:

At the time of the challenged actions in fall 2012, the defendants were on notice of several cases that clearly established that their conduct violated plaintiffs First Amendment rights. In at least four cases, the Supreme Court has held that a university creates a limited public forum when it distributes benefits to recognized student groups.

Here, it is undisputed that ISU granted recognized status to NORML ISU as a student organization. ISU concluded that NORML ISUs purpose was consistent with the broad educational mission of the university, but it made clear that it does not support or endorse the purposes of any registered organizations, including NORML ISU.

Kelly said the university only claimed its trademarks were government speech because of the purported confusion around the NORML shirt: No reasonable university official could have relied on this single example of confusion, in a field of at least 2,195 student organization uses of ISU marks, to convert a historic forum for student speech into government speech.

Iowa State rebuked more severely by 8th Circuit in second ruling on First Amendment and marijuana by The College Fix on Scribd

Free speech has impacts on other people, and ISU must recognize that

We are very happy the 8th U.S. Circuit Court reaffirmed its earlier finding that Iowa State had violated our clients First Amendment rights, Robert Corn-Revere, head counsel for the plaintiffs and prominent First Amendment lawyer, told The College Fix in a phone interview.

Simply using the label trademark doesnt make government action immune from the First Amendment. College administrators need to be aware that if they violate students First Amendment rights there can be consequences, he said.

NORMLs national office referred The Fix to Dan Viets, the head of its Missouri affiliate, for comment. Iowa State was clearly discriminating against the NORML chapter because they did not agree with their message, Viets said in a phone interview, calling the incident an unusual occurrence for a NORML campus chapter.

ISU hasnt decided what its next steps will be, lead counsel Mike Norton told The Fix in a phone interview.

He said the 8th Circuits new ruling wont have much effect on how the university handles First Amendment issues: In the near term I dont think the ruling will have an impact except those directly related to trademark use.

While Iowa State is committed to the protections of the First Amendment, it cant ignore the impact that speech has on other people, Norton said.

MORE: Judge says students can sue president for t-shirt censorship

The case was reopened in March after the appeals court granted ISUs petition, according to the Foundation for Individual Rights in Education, which sponsored the case through its three-year-old Stand Up for Speech litigation project.

The NORML ISU case was part of the first group of cases to be litigated under the project, and its the only one that has made it to an appeals court.

Iowa State has consistently lost in court. It lost its motion to dismiss more than two years ago, and a year later the district court issued a permanent injunction preventing the university from using the trademark policy to prohibit NORML ISU from making shirts containing marijuana symbols. It also lost on qualified immunity then.

Groups that joined the Alliance Defending Freedom brief in support of NORML ISU were Students for Life of America, Young Americas Foundation, Young Americans for Liberty, Ratio Christi and Christian Legal Society.

MORE: How license plates are like campus speech

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IMAGE: Africa Studio/Shutterstock, NORML ISU

About the Author

Zachery Schmidt is a senior at Western Washington University where he is majoring in political science and public relations. In his free time, Zach enjoys exercising, reading and writing.

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Iowa State officials knowingly violated students' First Amendment rights, appeals court says - The College Fix

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Does "Beef: It’s What’s For Dinner" violate the First Amendment? In … – The New Food Economy

Posted: at 5:55 am

A state District Court hands independent ranchers a long-awaited win.

Last week, the United States District Court for the District of Montana issued a decision that could have major implications for the beef industry inside the state and beyond. Judge Brian Morris upheld a lower courts decision that the beef checkoff program, as currently operated, violates the First Amendment rights of the states cattle ranchers. As as result, the Montana Beef Council (MBC) will only be allowed to collect funds from producers who voluntarily opt in to the program.

Quick refresher: checkoff programs are a mandatory tax the federal government collects on certain agricultural commodities, money farmers are compelled to pay to fund industry research and promotion. Over the years, checkoffs have raised billions of dollarsand have paid for some iconic advertising, from Got Milk? to Beef: Its Whats for Dinner. But theyve also been a sore spot for farmers who claim they dont have enough say over the way the funds are being used, yet are forced to pay even when they feel the message doesnt serve their interests.

To understand why the Montana case could be such a big deal, heres what you need to know: In 2005, the Supreme Court ruled that, in order to be constitutionally viable, checkoff programs must be overseen directly by the federal government. The government, after all, can compel certain forms of speech: I have to fund the military through my taxes, for instance, even if I dont like its actions. Legally, the government is granted that exception only because its supposed to be an extension of the peoples voice already (thanks to our democratically elected representatives). If you dont like a policy paid for by your taxes, the logic goes, you can always vote to change the government. (For more on this, see my piece on the fraught legal history of checkoffs.)

But private entities cannot compel speech, and thats where the Montana case comes in. Beef checkoff money is split evenly between the federal Cattlemens Beef Board and smaller, state-level organizations like the Montana Beef Councilprivate entities not subject to the same level federal oversight. Thats why the Ranchers-Cattlemen Action Legal Fund (R-CALF) filed suit against the United States Department of Agriculture (USDA), arguing that compelling payments to a private organization amounts to an unconstitutional first amendment violation.

The USDA lacks the authority to appoint or remove any of the Montana Beef Councils members. The USDA does not control how the Montana Beef Council spends the checkoff assessments, Judge Morris agreed, in his decision. Defendants claim that it effectively can control the Montana Beef Council through the Beef Board proves incorrect. The Beef Board is not a democratic[ally] accountab[le] body that is mandated to respond to and implement citizenss concerns.

The suits unwitting catalyst was a famous fast food chain: advertisements ran put out byWendys that promoting the companys use of fresh, North American beef in its four-cornered burgers. Since the ads were funded, in part, by the Montana Beef Council, some of the states ranchers felt their checkoff dollars were being used against them. Why were they being forced to fund the promotion of beef that came not just from the U.S., but alsoMexico and Canada?

Thats what I think made the case unique: It was a clear, in-your-face insult to U.S. cattlemen that were paying into the Montana beef checkoff, says Mike Callicrate, a Kansas rancher and activist whos been a longtime critic of the beef checkoff.

Where some saw an insult,R-CALF, another vocal opponent, saw opportunity.

After the Supreme Court ruling that said that the checkoff was government speech, we knew we had to find another avenue, Bill Bullard, R-CALFs CEO, tells me. Thats why we focused on money taken by the states.

The states cattle ranchers will still have to pay into the checkoff program$1 per head of cattle. But the Montana Beef Council will only receive its fifty percent share of that money when a rancher opts in. In Bullards view, state funds like Montanas have long been used to suit the interests of politically powerful meat packers. He thinksthe ruling will deprive them of a crucial source of income, and may help level the playing field between beef producers and processors. (Again,you can read more inmy history of the beef checkoff and its discontents.)

Our industry has been dominated by multinational meatpackers that have been working to vertically integrate and control the supply chain of the U.S. cattle industry, Bullard says. Now, this case gives us hope that were able to pull further away from the integration that the packers have already accomplished, ensuring that we can maintain a widely dispersed family farm system of cattle production in America.

Weve found a court that was willing to take our concerns seriously and act on them. Thats huge.

Its not a done deal yet: USDA may decide to appeal. But it also has the opportunity to respect the ruling, or even play an active role in rolling out voluntary state-level checkoff participation in other statesheading off a raft of potential lawsuits elsewhere. No ones quite sure what will happen, but Dudley Butler of Butler Farm & Ranch Law, which represented the plaintiff, feels that future arguments against this decision would face a tough legal battle.

People look at the constitution sometimes like they look at the Bible, they pick and choose what parts they want to use, he tells me. But the First Amendment right is extremely important. Under our system of government, you just cannot force speech on someoneunless it passes the rigors of being determined by a court it is government speech.

For its part, the Montana Beef Councilwhich was not named in the suitis taking a hard look at its post-ruling future.

As a result of the preliminary injunction, after assessments are collected from Montana beef producers, if they do not provide prior affirmative consent to the Montana Beef Council, their full assessment will be forwarded to the Cattlemens Beef Board for general use on national programs and projects, it says, in a statement. MBC is working through the details to develop a process for this Court Order and a way for producers to provide consent.

It could be an onerous task.And complaints about the federal checkoff program are likely to remain. But for now, the victors are celebrating as they look ahead.

Its probably the biggest thing that independent producers have achieved in trying to get their interests represented by the government, Bullard says. Weve failed to convince Congress to listen to the producers. Weve failed to convince the USDA to listen to the concerns of the producer. But here, in our third branch of government, weve found a court that was willing to take our concerns seriously and act on them. Thats huge.

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