Daily Archives: July 21, 2017

Earlier this week, the ACLU sent a letter to members of Congress opposing the Israel Anti-Boycott Act. The bill would amend existing law to prohibit people in the United States from supporting boycotts targeting Israel making it a felony to choose not to engage in commerce with companies doing business in Israel and its settlements in the occupied Palestinian territories. Violations would be punishable by a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.

The bill is aimed at advocates of boycotts targeting Israel, most notably the Boycott, Divestment, Sanctions (BDS) movement a global campaign that seeks to apply economic and political pressure on Israel to comply with international law. Specifically, the bill sponsors intend the act as a response to the U.N. Human Rights Councils 2016 resolution calling on companies to respect human rights, including in occupied Palestinian territories.

No matter what you think about the Israeli-Palestinian conflict, one thing is clear: The First Amendment protects the right to engage in political boycotts.

In fact, the right to boycott is one of the brightest stars in our constitutional firmament. The American Revolution was founded on boycotts against British goods to protest excessive taxes. John Jay led a boycott against New York merchants who engaged in the slave trade. And the Montgomery bus boycott of 19551956 was a major turning point in the struggle for civil rights in the Jim Crow South. In the 1970s and 1980s, colleges and universities led a widespread campaign to boycott and divest from South Africa, in protest of apartheid. In 2015, football players at the University of Missouri went on strike until the school addressed acute racial tensions on campus. And North Carolinas law prohibiting transgender people from accessing restrooms and other facilities consistent with their gender identities sparked massive boycotts by businesses and individuals.

Boycotts are a form of collective action that allows ordinary people to make their voices heard. For precisely this reason, the Supreme Court has held that the First Amendment protects the right to boycott. The courts landmark decision in NAACP v Claiborne Hardware Co. affirmed the constitutional right of NAACP activists to hold a mass economic boycott of white-owned businesses in Port Gibson, Mississippi, to protest the communitys persistent racial inequality and segregation. In ringing language, the court held that the boycotters exercise of their rights to speech, assembly, and petition . . . to change a social order that had consistently treated them as second-class citizens rested on the highest rung of the hierarchy of First Amendment values.

No matter what you think about the Israeli-Palestinian conflict, one thing is clear: The First Amendment protects the right to engage in political boycotts.

This is a proud constitutional legacy. Today, though, the right to boycott is under assault. Over the past several years, federal, state, and local legislators have introduced wave after wave of legislation seeking to stamp out boycotts and divestment campaigns aimed at Israel. One such law, passed earlier this year by Nassau County in New York, prohibits the county from doing business with people who support the BDS movement. As a result, Roger Waters of Pink Floyd fame could be banned from playing at the Nassau Coliseum in New York. Similar laws have been passed in Arizona and Kansas.

None of them comport with the First Amendment.

The Israel Anti-Boycott Act introduced in Congress goes a step further, threatening severe civil and criminal punishment against individuals who refrain from doing business with Israel because of their political opposition to its governments actions. The bill amends two existing laws, the Export Administration Act of 1979 and the Export-Import Bank Act of 1945, which prohibit certain boycotts sponsored by foreign governments.

The bill would expand the application of those laws in a number of ways. It would expand the laws to prohibit boycotts called for by international organizations, like the United Nations and the European Union; it would threaten sanctions against people who boycott businesses operating in Israeli settlements in the occupied Palestinian territories; and it would prohibit even requests for information about companies business relationships with Israel and Israeli companies. This expansive language would likely chill a wide range of political activity in the United States directed at the Israeli government activity that is constitutionally protected, regardless whether members of Congress agree with it.

A number of the bills sponsors were apparently surprised by the ACLUs free speech concerns with the bill. A number of them have now expressed their intention to review the legislation with the ACLUs civil rights and civil liberties concerns in mind. We hope they do the right thing by backing away from any bill that violates our First Amendment rights.

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The First Amendment Protects the Right to Boycott Israel - ACLU (blog)

When Friedrich Nietzsche declared that God is dead, of course he did not mean it literally. Rather, he meant men following their will to power had essentially sidelined God and abandoned decency. I am increasingly persuaded that Nietzsche was presaging our era.

The U.S. Court of Appeals for the Second Circuit recently released Fratello v. Archdiocese of New York (2d Cir. July 14, 2017), which held that a female principal of a Catholic school has no legal recourse when a priest engages in ugly, sexist behavior toward her that would be actionable in any other scenario. It is a classic case of gender discrimination and retaliation, although you would never know it from the lengthy opinion that never articulates her claims but rather treats them as just some generic complaints from a woman. According to the complaint, her supervisor, Fr. Joseph Deponai, told her that she should not have coffee alone in her office with the male facilities manager, because it would create scandal, and he falsely accused her of adultery. She alleges that his inappropriate, sex-based comments led her not to meet with male colleagues in her office and that she was let go when she complained about Deponai.

Why did Fratello receive no shelter from the federal or state civil rights laws? Because of the ministerial exception under the First Amendment, which was cemented by the U.S. Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. That doctrine, as developed by the Court, holds that ministers of religious organizations cannot sue their employers under the discrimination law. In Hosanna-Tabor, it was the Americans with Disabilities Act the religious entity circumvented; in this case it is Title VII.

It would have been one thing for the Court to say that a religious organization is shielded from the civil rights laws when it follows its beliefs. For example, and this came up more than once during Hosanna-Tabors oral argument, the Catholic Church believes that only men can be priests. In that circumstance, the First Amendment argument makes senseno women need apply or go to court. Unfortunately, the Court and now the Second Circuit with its curiously long opinion short on facts and long on law office history crafted a wooden rule that says that if the employee can be classified as a minister then the organization is simply immunewhether its behavior was religiously motivated or not.

Thus, in the Fratello case, the better approach would have been to ask whether the gender discrimination was required by the religion. Obviously, there is no Catholic belief that requires a supervisor to lie about an employees sexual behavior to others or that requires women to avoid talking to male compatriots. In other words, this is a case where she should have been able to sue, and the religious organization should have been legally rebuked for its behavior. Instead, the case basically tells religious organizations to discriminate away without consequence.

The pro-religion tone of the opinion combined with the trivialization of Fratellos claims is troubling and actually surprising coming from the Second Circuit. This was the circuit after all that took a principled stand against the demands of some religious entities to turn public school buildings into churches on the weekends in Bronx Household of Faith v. Board of Education and read Title VIIs gender discrimination prohibitions to encompass sexual orientation in Christiansen v . Omnicom Group. But even more surprising is how the opinion goes out of its way to sideline the Establishment Clause and the separation of church and state. In a footnote it defines the separation of church and state by quoting a law professor in a 2003 law review article saying its shorthand for vague notions of religious liberty in the First Amendment. Apparently, the Second Circuits library lacks any of the Supreme Courts Establishment Clause cases that would show that it is a lot more than the weak stepsister to the Free Exercise Clause. This reminds me of the times when Chief Justice Rehnquist would take down a litigant who had no case and just a treatise to support an argument. He made it very clear that Supreme Court cases were the precedents that mattered, not treatises or law professors. But this is no litigant. It is the Second Circuit, which should have said nothing at all before brazenly ignoring decades of precedent.

It is my view that religious organizations led by humans often err, and that they need to be reminded once in a while of the requirement of decency and integrity just like the rest of the humans in society. This case is an excellent example as was the race discrimination case in Rweyemamu v. Cote and the disability case in Hosanna-Tabor. When the behavior is not required by faith, it is likely just bad behavior that the church would do well to curb. Human nature being what it is, churches would actually do better in the long run with more legal strictures in this arena rather than fewer, and those advocates pressing for ever greater immunity for the religious are doing them no favors. The image of the Catholic Church in this case and in Petruska v. Gannon University as aggressively sexist, and in Rweyemamu as racist, and the impression of the Evangelical Lutheran Church in Hosanna-Tabor as callous toward a woman with a disability, are not going to slow down the trend toward an ever-growing number of Nones or lead to an increase of those with a strong religious affiliation.

The bottom line is that in a case like Fratello the ministerial exception stands for the proposition that a religious organization cant be sued for discrimination. But that is a far cry from a requirement that the organization discriminate, or that if it has someone engaging in what would otherwise be illegal behavior, it must litigate. Having spoken to many of the litigants in these cases, the no-holds-barred litigation stance throws salt on the festering wound of being treated worse by their own religious organization than they might have been if they had worked for a secular corporation. The discrimination is felt as a betrayal of the goodness of the organization; the aggressive legal defense is just ugly.

While it is not difficult to come up with some tendentious explanation for first treating these employees badly and then litigating it to the hiltand no doubt their lawyers and amici have cornered that marketdoesnt a rational person have to ask why did these religious organizations find it in their interest to publicize their socially and morally unpalatable behavior? I mean, really: where is the upside in a religious organization protecting a chauvinist by firing a female employee or using race to hire and fire? You really dont need the scandal of clergy sex abuse to understand why Americans are fleeing organized religion. If religious organizations could for one moment in this era quit listening to lawyers and start considering simple decency we might all benefit.

It would be a mistake, however, to view these ministerial exception cases in a vacuum. They are part of a larger, more troubling social pattern of religious entities demanding a right to discriminate and harm others, as I discuss here. The Religious Freedom Restoration Act, of course, was put in motion to shield believers from the laws that apply to everyone else, and has been deployed to trivialize womens rights against gender and religious discrimination in their benefit packages in Burwell v. Hobby Lobby and to pave the way to discrimination against a transgender employee in EEOC v. R.G. & G.R. Harris Funeral Homes, Sean F. Cox Inc., just to name two examples. Yet, even RFRA has not been enough for the religious lobbyists, who have further demanded the inaptly named First Amendment Defense Act (FADA). The very title of this bill tells you that religious lobbyists are overreaching: it implies that its provisions carry out the requirements of the First Amendment when in fact it does no such thing. Its sui generis. The First Amendment didnt require RFRA, either. Its just a statute.

Some members of Congress now see that RFRA was a step too far. Reps. Bobby Scott (D-Va.) and Joseph Kennedy (D-Mass.) accordingly have introduced the Do No Harm Act again this year. In his release, Kennedy correctly stated the basic common sense principle that, Inherent in our nations right to religious freedom is a promise that my belief cannot be used to infringe on yours or do you harm. The bill would protect people, and especially those who are not part of the faith, from discrimination in employment and in healthcare. It also shields the most vulnerable: children from the use of RFRA in cases involving child labor, abuse, or exploitation. Why anyonereligious to atheistwould permit RFRA to continue to apply to children in the first place is beyond me, but there it is.

This bill is the counterpart to the earlier RFRA enhancement bill entitled the First Amendment Defense Act that explicitly would have permitted discrimination against LGBTQ in employment and other arenas. FADA appears to have no momentum; unfortunately, the Do No Harm Act in this Administration suffers the same fate. But that does not mean the Trump Administration is not plotting to make sure that religious believers have the latitude they need to harm others.

Recently in a closed door session, Attorney General Jeff Sessions reportedly promised the Alliance Defending Freedom new regulations implementing RFRA across the federal government and even implicitly some help with their cases aimed at reining in LGBTQ rights and pushing LGBTQ out of the way of conservative Christian believers. One can only imagine what fresh harm to others is being concocted right now. What we do know for certain is that unlike the ministerial exception, it is not constitutionally required and those who are harmed should stand up, speak out, and invoke the laws on their side against RFRA. They should also demand an end to RFRA, not just its scaling back. After all, in the end, its nothing more than a poorly thought-out statute with an abnormally high number of unknown and negative consequences.

The Courts current ministerial exception doctrine is another matter, because it is grounded in an interpretation of the First Amendment. It cannot be altered by a simple majority vote in Congress. Its negative effects, however, could be ameliorated by religious organizations who stay true to their beliefs, but who refuse to harbor and encourage what the rest of the culture can see quite clearly is discriminatory, hurtful behavior. The phrase primum non nocerefirst do no harmcomes to mind.

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So When Will Religious Organizations Choose Not to Discriminate ... - Justia Verdict

A row blew up in Milwaukee between city officials and the owner of an augmented reality game.

The city claimed that augmented realitygameplayers were costing tens of thousands of dollars in law enforcement and park maintenance by trampling grass and flowers, and staying past park hours. They demanded permits for all virtual and location-based AR games. Companies were instructed to submit a certificate of insurance for $1 million general liability cover (with the prospect of further fees) before their games could be played in public areas of the city.

Candy Lab AR, who make the AR game Texas Rope Em sued. The poker game entails players travelling to various local areas in order to build their card collections.

Milwaukee challenged the lawsuit but US District Court judge Joseph Peter Stadtmueller, said that the game, along with others, qualify for Constitutional protection.

The Ordinance treats game developers like Candy Lab as though they are trying hold an event in a Milwaukee County park, said Judge Stadtmueller. However, this misunderstands the nature of the problem. Requiring Candy Lab to secure insurance, portable restrooms, security, clean-up, and provide a timeline for an event is incongruent with how Texas Rope Em (or any other mobile game) is played.

The judge listed various examples of location-based games, including Pokemon Go. He said that the basic protections offered by the First Amendment dont change purely because the entertainment medium does.

Image courtesy of Pokemon Go.

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AR games given protection under the First Amendment - Blooloop

Reprinted with permission from MediaMatters.

The National Rifle Associations broadcast platform NRATV has launched its latest attack against freedom of the press, this time targetingTheWashington Post, calling the newspaper a fake news outlet and claiming it is where journalism dies.

On July 11, thePostpublished anarticlecalling an NRATVvideoabout political unrest in the U.S. dark. The article noted that the video condemned Democratic politicians, the media and activists as the catalysts for political upheaval in this country, with one glaring omission: firearms. According to the article, the video focused on political discussions around public safety during civil unrest, with less clear connections to Second Amendment rights.

On July 17, NRATV released a responsevideofeaturing NRATV host Grant Stinchfield, who called out thePostreporter by name and slammed him for tell[ing] us we cant have an opinion unless its about guns.

The video also accused thePostof spreading lies about those who disagree with their radical agenda and said the newspaper is pushing organized anarchy that is destroying our country. Stinchfield went on to claim, You people do more to damage our country with a keyboard than every NRA member combined has ever done with a firearm.

Less than one day after the videos release,The New York Times Max Fishertweetedthat the video is edging right up to the line of endorsing violence against journalists, while HuffPostcalledit disturbing.

Despite the mounting criticism, Stinchfield doubled down on his video during the noon edition of NRATVsStinchfieldon July 18, claiming the newspaper uses its keyboards as weapons of destruction:

GRANT STINCHFIELD: TheWashington Postis out of line. They claim to uphold the standards of journalism when, in fact, they use their keyboards as weapons of destruction as they try to tear apart the Trump administration in an effort not just to destroy him, but to destroy America, and it is wrong.

This video is just the latest in a growing number of attacks the NRA has launched against both the press and freedom of the press since Donald Trump won the Republican nomination for president and was ultimately elected. During anOctober 26, 2016, broadcast, Stinchfield characterized dissent against Trump as an assault against the Constitution. A month later, during aNovember 29broadcast, Stinchfield called mainstream media dishonest and downright dirty,suggesting that it is anti-patriotic to report critically on Trump and his transition team, and said that the media instead needs to get on board.

AfterThe New York Timesran anadvertisementduring this years Oscar awards about the importance of journalism, the NRA fired back with its own 75-secondadclaiming Americans have stopped looking toThe New York Timesfor the truth. And in April, the NRAannounceda series of messages against the newspaper, which the organization claims has gone on the offensive to take away your liberties.

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Here Is The NRA's Latest Attack Against The First Amendment - The National Memo (blog)