Monthly Archives: August 2017

Symposium: Justices poised to consider, or reconsider, Fourth Amendment doctrines as they assess the scope of … – SCOTUSblog (blog)

Posted: August 1, 2017 at 5:54 pm

John Castellano is Deputy Executive Assistant District Attorney and Chief Appellate Attorney in the office of Richard A. Brown, District Attorney of Queens County, New York.

The Supreme Courts grant of certiorari in United States v. Carpenter highlights the clash between established Fourth Amendment doctrines and what many argue are the heightened privacy concerns of a digital era. The court will consider the scope of the Fourth Amendments protection of information contained in a cellular carriers records that reflects the location of cell towers used to complete customers phone calls and convey their texts. At stake will be at least two traditional notions underlying the courts Fourth Amendment jurisprudence. The first is the general understanding that information voluntarily exposed to others is not protected by the Fourth Amendment, and the second is the more specific third-party doctrine, which holds that government access to information collected by a private business in order to provide a service to a customer does not constitute a search.

In this case, the government obtained court orders under Section 2703 of the Stored Communications Act for a total of 127 days of historical cell-site information regarding phones used by defendant Timothy Carpenter, who had been named by an accomplice as the mastermind of a string of nine commercial burglaries committed in and around Detroit. As the governments expert testified, the records provided the location of cell towers that handled the defendants calls and texts, and indicated that the defendants phone was within one-half to two miles of the specified tower and within a one-third or one-sixth radial wedge, or sector, of the tower. The U.S. Court of Appeals for the 6th Circuit applied the third-party doctrine to hold that the Fourth Amendment did not protect this information, because the records obtained were those of the cellphone provider and reflected information collected by the provider in order to provide a service to the defendant. The court of appeals also noted that cellphone customers generally understand that when they use their cellphones for calls or texts, they are employing nearby cell towers and thus providing information to the carrier, including their general whereabouts.

The issue may not be so clear cut for some members of the Supreme Court, however. In a 2011 concurrence in United States v. Jones, Justice Sonia Sotomayor wrote that, although the third-party doctrine was not at issue in that case, it might in the future be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. And Justice Samuel Alito, writing for himself and three other members of the court, noted in Jones that long-term monitoring of specific GPS-location data could impinge on expectations of privacy, but suggested that legislative solutions might be best suited to balance these concerns with public safety in an era of dramatic technological change.

The way in which the Supreme Court resolves these issues in Carpenter will undoubtedly revolve around how the justices view the scope of the issue presented. If the question is, as some suggest, whether the Fourth Amendment does anything to regulate government access to the nearly limitless information stored by telecommunications companies and internet service providers, many of the justices are likely to be reluctant to sign on to an expansive application of traditional doctrines. But if the issue is confined to the particular type of information involved in this case, the specific privacy interests at stake, the judicial mechanism Congress provided to restrict access to the information and the legitimacy of the governments interest in the information, the outcome may well be different.

The privacy concerns raised by the specific information at stake in this case may be far less significant than those attached to other types of information a digital consumer provides to carriers or internet providers. The information obtained in Carpenters case involved only the location of towers used to convey calls and messages, and not, notably, the content of any communication. As the 6th Circuit noted, in the telecommunications context, the Supreme Court has traditionally distinguished between content-related information and information about the mechanisms used to convey the message. And, whatever the precise contours of the line between content and non-content, in this case there seems little doubt that the information was not content-related.

Moreover, unlike the specific GPS coordinates in Jones, accurate to within 100 feet, the information in Carpenter was non-specific, placing the phone as far away as two miles from the towers, and only within a one-third or one-sixth sector of the tower. Nor is the tower identified in records like those at issue in this case necessarily the closest one to the caller, because two people making calls from the same car at the same time may be employing two different towers, depending on, among other things, whether one tower has reached its capacity.

This difference in specificity between GPS data and cell-site information would appear to be significant. Rather than allowing the government to observe what businesses or residences a phone subscriber visits, and thus, as Sotomayor feared, compile a comprehensive record of a persons public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations, the records in this case identified at best a general neighborhood or group of neighborhoods, which, in an urban context, potentially covers hundreds or thousands of businesses and residences.

Nor is the privacy interest in location information, something traditionally exposed to the public and observable by the government, greater than the privacy interest in other types of documents clearly covered by the third-party doctrine. Numbers dialed from a phone, for example, which are far more specific and in many ways more revealing than the location of cell towers, fall squarely within the third-party doctrine and may be accessed without resort to any court order, as the Supreme Court held in Smith v. Maryland. According to United States v. Miller, the same is true of bank records and other financial information, which many consider to be highly personal and private.

And although some litigants and commentators have challenged the voluntariness of a cellphone customers disclosure of location information, cellphone users, as the 6th Circuit noted, generally understand that the phone company completes calls by the use of cell towers and knows what towers are being used to complete a customers calls. Moreover, all carriers provide notice of their privacy policies, which routinely include warnings that information is collected in connection with the provision of a carriers services and that this information may be provided to law enforcement.

The notion that prosecutors routinely abuse their access to this type of information, effectively tracking the whereabouts of citizens for weeks or months and for little or no reason, lacks a legitimate foundation. For one thing, the government conducts no tracking when it gains access to this type of information: The phone company collects cell-site location information for its own purposes and the government, retrospectively, views it based on a court order. For another, prosecutors do not routinely access such information. In fact, in 2016, prosecutors in Queens, New York, the 10th most populous county in the nation with 2.3 million inhabitants, obtained historical cell-cite information only 92 times, each through a court order, out of the more than 54,000 prosecutions in the county that year. And most of those orders covered periods far less extensive than those in this case. Indeed, more than half of the Queens County orders covered 10 days or less, and an additional 22 percent covered 30 days or less. Only seven orders for the entire year exceeded 90 days, and most of those were issued in pattern robbery or burglary investigations like the one in Carpenter, in which a review of records over a longer time period was warranted.

Furthermore, prosecutors access to cell-site location information is limited by judicial intervention. The Stored Communications Act requires a court order based on specific and articulable facts establishing that the information requested is relevant and material to an investigation. Both the citizens affected and the time period covered by the records can be limited in this manner. This is precisely the type of statutory mechanism that Alito suggested in his concurrence in Jones would operate to protect any perceived privacy interest at stake. Indeed, subpoenas for potentially far more personal information, like bank information, credit card statements and call detail information, can be issued in most states without any such check.

Moreover, the legitimate interest of law enforcement in historical cell-site location information in certain cases is very compelling, because it provides an important investigative tool when it may be difficult or impossible to show probable cause. Orders may be used, for example, to obtain the location history of homicide victims to determine their whereabouts immediately prior to their deaths, thereby aiding in the investigation of relevant events and possible causes. Similarly, when multiple legitimate suspects could have motives for committing a crime, location information may exclude some or all of these suspects. Historical cell-site information can also be used to check the reliability of information provided by informants or contained in the statements of accomplices. And, when pattern crimes are alleged, review of cell-site location data can provide critical evidence of, for example, an individuals commission of serial killings or a persons participation in pattern robberies or burglaries like the one in this case, because presence at multiple crime scenes or other relevant locations over a period of many days or weeks is not likely to be mere coincidence. In this way, a Section 2703 order provides an essential investigative tool, often used in conjunction with subpoena requests and other investigative techniques, that imposes minimal intrusions on any legitimate expectations of privacy.

The Supreme Courts decision in Carpenter will thus likely turn on how broadly the justices view the question presented in the case. Whatever the outcome, the Supreme Courts decision is likely to be merely the opening salvo in the legal debate rather than a definitive resolution of the issues raised by law-enforcement access to cell-site location information.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Featured, Merits Cases

Recommended Citation: John Castellano, Symposium: Justices poised to consider, or reconsider, Fourth Amendment doctrines as they assess the scope of privacy in a digital age, SCOTUSblog (Aug. 1, 2017, 2:49 PM), http://www.scotusblog.com/2017/08/symposium-justices-poised-consider-reconsider-fourth-amendment-doctrines-assess-scope-privacy-digital-age/

Read more:
Symposium: Justices poised to consider, or reconsider, Fourth Amendment doctrines as they assess the scope of ... - SCOTUSblog (blog)

Posted in Fourth Amendment | Comments Off on Symposium: Justices poised to consider, or reconsider, Fourth Amendment doctrines as they assess the scope of … – SCOTUSblog (blog)

The justices return to cellphones and the Fourth Amendment: In Plain English – SCOTUSblog (blog)

Posted: at 5:54 pm

In 1976, in United States v. Miller, the Supreme Court ruled that the bank records of a man accused of running an illegal whiskey-distilling operation were not obtained in violation of the Fourth Amendment, even though law-enforcement officials did not have a warrant, because the bank records contained only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. Three years later, in Smith v. Maryland, the justices ruled that no Fourth Amendment violation had occurred when, without a warrant and at the request of the police, the phone company installed a device to record all of the phone numbers that a robbery suspect called from his home, leading to his arrest.

These cases are often cited as examples of the third-party doctrine the idea that the Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else. But does the third-party doctrine apply the same way to cellphones, which only became commercially available a few years after the courts decisions in Miller and Smith? Justice Sonia Sotomayor, at least, has suggested that it should not: In 2012, she argued that the doctrine is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. That question is at the heart of Carpenter v. United States, in which the justices will hear oral argument this fall.

The petitioner in the case, Timothy Carpenter, was accused of being the mastermind behind a series of armed robberies in Ohio and Michigan. Law-enforcement officials asked cellphone providers for the phone records for 16 phone numbers, including Carpenters, that had been given to them by one of Carpenters partners in crime. They relied on the Stored Communications Act, a 1986 law that allows phone companies to disclose records when the government provides them with specific and articulable facts showing that there are reasonable grounds to believe that records at issue are relevant and material to an ongoing criminal investigation; the government does not need to show that there is probable cause to believe that a crime has been committed. Such requests have become a common tool for police officers investigating crimes according to Carpenter, they are made in thousands of cases each year.

Investigators received several months worth of historical cell-site records, which indicate which cell towers a cellphone connected with while it was in use. Based on those records, investigators were able to determine that, over a five-month span in 2010 and 2011, Carpenters cellphone connected with cell towers in the vicinity of the robberies. After his arrest, Carpenter argued that the records should be suppressed because the government had not obtained a warrant for them. But the district court disagreed, and Carpenter was convicted and sentenced to almost 116 years in prison.

A federal appeals court upheld his convictions. Applying the Supreme Courts decision in Smith (among others), it ruled that the government was not required to obtain a warrant because Carpenter could not have expected that cellphone records maintained by his service provider would be kept private. Carpenter then asked the justices to weigh in, which they agreed to do in June.

Carpenter contends that the disclosure of his cellphone records to the federal government was a search for which the government needed a warrant. At the heart of this argument is the idea that, as Sotomayor has suggested, times have changed, and cellphones are different from the more primitive phone technology and bank records at issue in Smith and Miller. Therefore, he tells the justices, they should not mechanically apply their earlier decisions, but should instead use a more nuanced approach that accounts for both the volume and precision of the data that is now available for cellphones. And, in particular, the fact that a third party, such as Carpenters cellphone provider, has access to his cellphone records does not automatically mean that he cannot expect those records to remain private.

But even under Smith and Miller, Carpenter continues, he would still prevail. To determine whether he can expect his records to be kept private, he contends, the justices should look at whether he voluntarily gave the records to his service provider. Here, he stresses, he did not do so in any meaningful way, because he did not affirmatively give information about his location to his service provider by either making or receiving a call. Moreover, he suggests, another factor that the justices should consider his privacy interest in the information revealed by the records weighs heavily in his favor. Most people have their phones with them all the time, he emphasizes, which means that cellphone records can show where someone was and what he was doing at any given time, even in places most notably, at home where he would expect privacy.

In a friend of the court brief, the Electronic Frontier Foundation and other privacy groups echo Carpenters arguments. In particular, the groups highlight how times have changed since the courts third-party-doctrine decisions in the 1970s. Here, they observe, the SCA gives law-enforcement officials access to much more information than just the few days worth of dialed phone numbers at issue in Smith. Moreover, the data that can be obtained under the SCA are generated simply by the act of carrying a phone that has been turned on: It is created whenever the phone tries to send and receive information, generally without forethought or conscious action by the owner.

For the federal government, this case is a straightforward one, regardless of any new technologies like cellphones that may be involved. First, the government contends, Carpenter does not have any ownership interest in the cellphone records turned over to police by his service providers. Those providers, the government reasons, simply collected the information for their own purposes, which included a desire to find weak spots in their network and to determine whether roaming charges should apply.

Second, the government adds, Carpenter does not have any reasonable expectation of privacy in the cellphone records, which only tell the government where his cellphone connected with the towers, without giving it any information about what was said in his calls a core distinction, according to the government. What Carpenters argument really boils down to, the government argues, is that law-enforcement officers could infer from his service-providers records that he was near a particular cell tower at a particular time. But, the government counters, an inference is not a search.

The federal government also pushes back against Carpenters suggestion that broader privacy concerns weigh in favor of Fourth Amendment protection for his cellphone records. Cellphone users like Carpenter know (or at least should know) how their phones work: by giving off signals that are sent to the cellphone providers through the closest tower. Therefore, the government contends, Carpenter assumed the risk that the information would be divulged to police.

Carpenters argument that cellphone records are somehow more private than the financial information that was not protected in Miller has no real support, the government tells the justices. And the information at issue in Carpenters case is more limited than in United States v. Jones, in which the Supreme Court ruled that the installation of a GPS tracking device on a suspects car, without a warrant, violated the Fourth Amendment. In Jones, the government points out, the police used the GPS device to follow the cars movements continuously for 28 days, allowing them to pinpoint the cars location to within 50 to 100 feet. Here, the government emphasizes, the only information that the government received was which tower connected with Carpenters phone when he was making the calls.

Carpenters case is not the Supreme Courts first foray into the intersection of cellphone technology and the Fourth Amendment. In 2014,the justices ruled that police must obtain a warrantto search information stored on the cellphone of someone who has been arrested. In his opinion for the court, Chief Justice John Roberts emphasized that todays phones are based on technology nearly inconceivable just a few decades ago and are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. And the justices made clear that their decision did not render the information on a cellphone completely off limits to police; it just meant that police officers will normally have to get a warrant. The justices may ultimately conclude that, as the federal government argues, giving law-enforcement officials access to information about where a particular cellphone has been is not the same as allowing them to review the kind of detailed personal facts available on the phone itself. But no matter what they decide, their ruling could shed significant new light on what limits the Fourth Amendment will impose on efforts by police to benefit from the significant technological advances in the 21st century.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Plain English / Cases Made Simple, Featured, Merits Cases

Recommended Citation: Amy Howe, The justices return to cellphones and the Fourth Amendment: In Plain English, SCOTUSblog (Jul. 31, 2017, 10:57 AM), http://www.scotusblog.com/2017/07/justices-return-cellphones-fourth-amendment-plain-english/

Originally posted here:
The justices return to cellphones and the Fourth Amendment: In Plain English - SCOTUSblog (blog)

Posted in Fourth Amendment | Comments Off on The justices return to cellphones and the Fourth Amendment: In Plain English – SCOTUSblog (blog)

Digital privacy bill still abandons probable cause for our papers – The Hill (blog)

Posted: at 5:54 pm

The bipartisan ECPA Modernization Act of 2017 introduced by Sens. Patrick LeahyPatrick LeahyDigital privacy bill still abandons probable cause for our papers Overnight Tech: Driverless car bill advances in House | Bezos now world's richest person | Tech groups hail new email privacy bill Senate panel advances measure to protect medical marijuana states MORE (D-Vt.) and Mike LeeMike LeeDigital privacy bill still abandons probable cause for our papers McConnell faces questions, but no test to his leadership Overnight Cybersecurity: Senate sends Russia sanctions bill to Trump | Senators unveil email privacy bill | Russia tried to spy on Macron with Facebook MORE (R-Utah) is a welcome correction to a legislative flaw in the Fourth Amendment protections of emails stored in the cloud. Because of a law created before the cloud came to be, emails stored longer than 18 months could be accessed by government agencies without a warrant signed by a neutral judicial officer after presentation of probable cause of unlawful activity.

Citing the most basic Fourth Amendment protocols against warrantless access to emails, the bill was introduced under the premise of fixing that flaw for these older emails in the cloud. The bill, though, still leaves open probable cause-free access to emails and other papers through use of judgeless administrative subpoenas.

A rule of construction in the ECPA Modernization Act that is entirely inconsistent with the sacrosanct warrant and probable cause provisions of the Fourth Amendment is that it shall [not] limit an otherwise lawful authority of a governmental entity to use an administrative subpoena authorized by Federal or State statute.

Administrative subpoenas, also called civil investigative demands, are search writs issued by government agencies and state attorneys general or prosecutors to disgorge private papers. They may be issued without probable cause, and require no before-the-fact review by neutral judicial officers. They may be enforced in court under threat of contempt and other penalties, and courts give Chevron deference to these writs, meaning the issuers of them may in large degree determine the scope of the laws they claim to be enforcing.

In these regards, administrative subpoenas are worse than the general warrants banned by the Fourth Amendment after Americas colonial experience with the Writs of Assistance, which in fact helped foster the American Revolution. The Writs of Assistance targeted colonial merchants, but were at least issued by judges who could determine that legitimate laws were being enforced. These colonial Writs required returns before judicial officers, and government searchers were subject to legislative penalties and even private lawsuits for exceeding the scope of the judicially authorized searches. Some colonial judges even refused to issue these Writs when government officials refused to provide facts under oath.

The administrative subpoena regime abandons the requirement of probable cause both before issuance by the searchers themselves and in after-the-fact judicial hearings to enforce them. Unlike the general warrants under which judges determined the scope of the searches in advance, although leaving the persons, businesses, and places to be searched up to the discretion of the government searchers, administrative subpoenas may be issued based on flawed interpretations of the law and without independently verified facts indicating law may have been violated by the targets.

Administrative subpoenas therefore lack the separation of powers found even in the Writs of Assistance regime. The discretion of searchers under the administrative subpoena regime is therefore broader and in many ways more dangerous to the Fourth Amendment right of security than the Writs of Assistance.

The Boston Globe recently reported that the American Civil Liberties Union of Massachusetts is calling out the explosion in the use of these sanctioned fishing expedition tool[s], and how some state prosecutors have refused to disclose how many they issue. This mirrors my own experience with one state attorney general who ducked a Freedom of Information Act request about the quantity she issues, claiming attorney-client privilege among other excuses not to comply.

Administrative subpoenas are in fact impossible to reconcile with the Fourth Amendment. The very premise of the ECPA Modernization Act is that government may not violate the security of private records unless a judge has issued a warrant after hearing probable cause under oath that facts indicate a law is being broken. Government officials will exploit this expressly sanctioned loophole in the bill and subpoena emails directly from their targets in this probable cause-free administrative subpoena regime. Neither digital nor hard records will be safe from unreasonable government searches and compelled disgorgement.

Mark J. Fitzgibbons is President of Corporate Affairs at American Target Advertising, Inc.

The views expressed by this author are their own and are not the views of The Hill.

View original post here:
Digital privacy bill still abandons probable cause for our papers - The Hill (blog)

Posted in Fourth Amendment | Comments Off on Digital privacy bill still abandons probable cause for our papers – The Hill (blog)

Rep. Collins introduces Second Amendment Guarantee Act – 13WHAM-TV

Posted: at 5:54 pm

Congressman Chris Collins (R, NY-24) said Monday he will introduce a bill to repeal the portions of the SAFE Act which most impact sportsmen and women. (WHAM photo)

Honeoye Falls, N.Y. (WHAM) - Opponents of New York state's controversial SAFE Act are turning to Congress for help.

Congressman Chris Collins (R, NY-24) said he will introduce a bill to repeal the portions of the SAFE Act which most impact sportsmen and women.

The SAFE Act - which became law in 2013 - lumps the shotguns and rifles used by hunters and sportsmen in with all handguns, including those Governor Cuomo called assault weapons.

"This is the first time I can remember any legislation that was more harmful to law-abiding citizens - legally - than it is to criminals," said Tim Andrews of SCOPE.

"Governor, you are on notice. We are going to repeal and declare, null-and-void, your SAFE Act," Collins told a cheering crowd at Rochester Brooks Gun Club in Honeoye Falls.

On Monday afternoon, Collins unveiled the bill, which he refers to as SAGA - the Second Amendment Guarantee Act.

"Knowing the members as I do, we will have overwhelming support on this bill," Collins said while visiting the Rochester Brooks Gun Club. "Certainly, the minute they find out that the NRA and SCOPE may well be scoring this related to their Congressional score card, we'll get universal support."

SAGA seeks to limit a state's ability to regulate or impose penalties on rifles and shotguns. For example, the SAFE Act Provision limiting rifles to 10 rounds would be replaced with federal standards which currently do not have a limit. Yet it will have no impact on magazine restrictions for handguns.

"It's a good start and better than trying to wait for the whole enchilada," said Gary Zelinski of Canandaigua. "You've got to do something at this point."

New York courts have upheld the SAFE Act, and Republican proposals at the state level - including one to exempt upstate - will not pass without the support of Assembly Democrats from downstate.

"They have a different view on gun ownership," said Senator Rob Ortt (R) Niagara County. "Many of them equate it with crime. We equate the Second Amendment with freedom."

State Senator Rich Funke said, "This federal legislation may well be what we need to restore the freedom New Yorkers have enjoyed for centuries."

The bill asks conservative Republicans to limit the rights of states, but Collins predicted the bill will have the support it needs. "We're not going to allow a state to stomp on your rights for religion, and we're not going to let them stomp on the Second Amendment, and that's the difference," said Collins. "It is state's rights until they override a constitutional amendment."

New York Governor Andrew Cuomo issued a statement Monday afternoon, blasting the bill as a, "blatant political ploy," and, "disturbing."

See the article here:
Rep. Collins introduces Second Amendment Guarantee Act - 13WHAM-TV

Posted in Second Amendment | Comments Off on Rep. Collins introduces Second Amendment Guarantee Act – 13WHAM-TV

Indiana AG: Citizens Don’t Forfeit 4th Amendment Rights When … – 93.1 WIBC Indianapolis (blog)

Posted: at 5:54 pm

On May 9, 2017, the Indiana Supreme Court resolved a long-standing dispute in Indiana:

May a police officer detainan individual in possession of a firearm in order to verify that the person's possession of the gun is lawful?

In Pinner v. State, the court ruled that the mere possession of a gun, without some additional indication that the possession is illegal, does not justify a police officer in conducting an "investigatory stop" of the individual to check to see if the person has a License to Carry Handgun or that the person's possession of the firearm is otherwise lawful. And since the possession of a gun alone does not justify a stop - it also does not justify a search of the individual as part of a "stop & frisk."

Now,Indiana Attorney GeneralCurtis Hillis asking the United States Supreme Court to accept a case that originated in West Virginia, Shaquille Robinson v. U.S..and urging SCOTUS to create a similar rule for the country as a whole thatIndiana adopted in the Pinner case.

In Robinson, a witness called authorities to report that he had seen a man in a parking lot of a 7-Eleven loading a gun and placing that gun into his pocket. The witness gave a description of the armed man and the car he got into in the parking lot. Officers then pulled over the car - purportedly because neither Robinson nor the female driver were wearing a seatbelt - and asked Robinson to exit the vehicle. When asked if he was armed, Robinson did not respond verbally but gave the officer "a weird look." At this point, Robinson was directed to place his hands on the roof of the vehicle,he was searched, and the officer recovered a handgun from his pocket. Robinson was arrested, prosecuted and convictedunder federal law for illegal possession of a firearm by a convicted felon.

On appeal to the United States Court of Appeals for the Fourth Circuit, the primary issue was whether police had the legal right to search Robinson during the traffic stop. Robinson argued that the search violated his Fourth Amendment rights, since the police officers were acting only on a tip that he was armed and had no reason to believe that his possession of a firearm was illegal or that he was a danger to the officers at the time of the stop. In ruling that the search was legal and upholding Robinson's conviction, the Fourth Circuit held that the mere possession of a firearm is sufficient for a police officer to fear for his safety and justifies a search of the person who is reportedly armed -- even with no reason to believe that the person's possession of the firearm is illegal.

Now, Indiana is among five states (including Michigan, Utah, Texas and West Virginia) who have filed an "amicus curiae" (friend of the court)brief, asking the U.S. Supreme Court to grant Robinson's petition for certiorari and to review the case.

In the brief, Indiana argues that the Fourth Circuit's ruling "forces an individual to choose between her right to bear arms under the Second Amendment and her right to be free from searches under the Fourth Amendment." In effect, Indiana is now asking SCOTUS to adopt arule very similar to the ruling of the Indiana Supreme Court inthis year's Pinner case - that the mere possession of a firearm is not sufficient to justify a stop or a searchof a person by a police officer without some other reason to believe that the armed person is committing a crime or is a danger to the officer.

Hoosiers should be proud that the State of Indiana, through our Attorney General, is taking a stand in support of our Constitutional rightsnot only our right to bear arms, but our right to be free from unreasonable searches and seizuresrecognizing that a person who chooses to exercise his Second Amendment rights should not automatically forfeit his rights under the Fourth Amendment.

Guy A. Relford

Guy A. Relford is a Second Amendment attorney in Carmel, Indiana. He is also the owner and chief instructor of Tactical Firearms Training, LLC in Indianapolis and the author of Gun Safety & Cleaning for Dummies (Wiley & Sons Publications, 2012). He hosts The Gun Guy with Guy Relford on WIBC radio in Indianapolis.

Follow this link:
Indiana AG: Citizens Don't Forfeit 4th Amendment Rights When ... - 93.1 WIBC Indianapolis (blog)

Posted in Second Amendment | Comments Off on Indiana AG: Citizens Don’t Forfeit 4th Amendment Rights When … – 93.1 WIBC Indianapolis (blog)

Lawrence, Errigo back Collins Bill to Protect Second Amendment – WBTA AM 1490

Posted: at 5:54 pm

Press Release: Assemblymen Peter Lawrence (R,C,I-Greece) and Joe Errigo (R,C,I,Ref-Conesus) today joined Rep. Chris Collins and other local leaders at a press conference touting the congressmans new legislation, which would prohibit states from infringing on their citizens Second Amendment rights. The Second Amendment Guarantee Act (SAGA) would nullify much of the misguided NY SAFE Act. Our constitution is clear. Americans have the right to feel secure in their homes. Sportsmen have a right to hunt safely and responsibly. New Yorkers deserve to exercise their constitutional freedoms. Were thankful for Rep. Collins and his efforts to stand up to a governor who is more concerned with pleasing liberal activists across the country than protecting the rights of hardworking, law-abiding people right here in Upstate New York, said the legislators. The Collins bill would prevent states from exceeding federal firearm regulations relating to rifles, shotguns and magazine capacities. We arent going to ease the scourge of violent crime by trampling on the constitutional rights of law-abiding citizens. Well do that by supporting our law enforcement officials and by giving them the tools they need to get dangerous criminals off the streets, they added. The press conference was held in Errigos district at the Rochester Brooks Gun Club. Errigo and Lawrence both sponsor bills to repeal the NY SAFE Act in the New York State Assembly.

The rest is here:
Lawrence, Errigo back Collins Bill to Protect Second Amendment - WBTA AM 1490

Posted in Second Amendment | Comments Off on Lawrence, Errigo back Collins Bill to Protect Second Amendment – WBTA AM 1490

Court Rules Randall Violated First Amendment on Facebook – Loudoun Now

Posted: at 5:54 pm

A federal court has ruled that Loudoun Chairwoman Phyllis J. Randall (D-At Large) violated a Loudouners right to free expression by temporarily banning him from her Chair Phyllis J. Randall Facebook page.

Judge James C. Cacheris of the U.S. District Court for the Eastern District of Virginia handed down a mixed result for Brian C. Davison, who filed suit against Randall both personally and in her official capacity for violating his rights to freedom of expression and due process under the Virginia and U.S. Constitutions. The court issued a declaratory judgment clarifying Davisons rights, but declined to order injunctive relief and said in the due process argument that Davisons legal theory is somewhat unclear.

Davison, a critic of the School Board and frequent commenter on newspaper websites and social media as Virginia SGP,was at a joint School Board/Board of Supervisors meeting in February 2016. One of the questions he submitted in advance was selected and read aloud, asking whether the School Board should follow the example of the then-recently-adopted Board of Supervisors Code of Ethics. Davison has often accused School Board members of corruption.

Unsatisfied with Randalls answerwhich she began by calling the question a set-up question and saying that the Board of Supervisors ethics pledge is not a tool to accuse somebody or hit somebody over the head, before going on to answerDavison tweeted at Randall: @ChairRandall set up question? You might want to strictly follow FOIA and the COIA [Conflicts of Interest Act] as well.

Davison claimed that after he tweeted, Randall began glowering at him. Randall said she didnt know Davison and couldnt have identified him in the crowd, which the court found credible.

He then posted on Randalls Chair Phyllis J. Randall Facebook page. Neither Davison nor Randall could recall exactly what he wrote, but Randall recalled that it included allegations of corruption among School Board members.

Randall then deleted Davisons comment and banned him from her page. She said in court that was because if [Davison] was the type of person that would make comments about peoples family members, then maybe [Randall] didnt want [him] to be commenting on [her] site.

The next day, Randall reconsidered and lifted Davisons ban. In total, the court said, he was banned at most 12 hours.

This raises a novel legal question: when is a social media account maintained by a public official considered governmental in nature, and thus subject to constitutional constraints? Cacheris wrote in the ruling.

The court found Randall had created a public forum with her official Facebook page, which she uses frequently to communicate to the public, and therefore Davison did enjoy First Amendment protections.

Cacheris found that Davisons comment raised ethical questions about the conduct of School Board officials, alleging conflicts of interest involving their family members.

Quoting from the courts decision in Rossignol v. Voorhar, a 2003 case which found off-duty deputies had violated First Amendment protections by buying up every copy of a newspaper expected to contain writing critical of the local sheriff, Cacheris wrote Such criticism of . . . official conduct is not just protected speech, but lies at the very heart of the First Amendment.

At the same time, Cacheris found that practically speaking, the consequences of Defendants actions were fairly minor, because Davisons ban was short-lived and he was able to post essentially the same thing elsewhere on Facebook. Davison had also asked the court to order injunctive relief, although Cacheris wrote it is not clear what precisely Plaintiff seeks in the way of injunctive relief.

So far as the Court can tell, Plaintiff seeks an injunction simply requiring that Defendant henceforth follow the law, Cacheris wrote.

I value our right to free speech and I have fought to defend that right, Randall said in a statement. The courts decision, however, does not mean that people should make disparaging, untrue, or slanderous remarks about elected officials or their family members on social media.

This case required a considerable amount of public resources only to determine that we acted appropriately and that no substantive change in how we operate our Facebook pages is needed, said County Attorney Leo Rogers, echoing a complaint Plowman made about the public money it took to defend his case. The court refused to issue an injunction because we are already in compliance with the law.

All of this isnt to say that public officials are forbidden to moderate comments on their social media websites, or that it will always violate the First Amendment to ban or block commenters from such websites, Cacheris wrote. Indeed, a degree of moderation is necessary to preserve social media websites as useful forums for the exchange of ideas. He also wrote that given the prevalence of online trolls, this is no mere hypothetical risk.

It wasnt the first time Davison has taken Loudoun officials to court. In April 2016, a Richmond Circuit Court judge sided with Davison in deciding the Virginia Department of Education must release Loudoun County Public Schools Student Growth Percentile scores by school and by teacher. Davison, a parent of two Loudoun students, said the scores are a better indicator of students year-over-year progress and they would help administrators identify the divisions most effective teachers.

In that case, the court also ordered VDOE to pay Davison $35,000 to cover attorneys fees and other costs.

In April of this year, Cacheris tossed out a similar case against Commonwealths Attorney Jim Plowman, in which Davison argued Plowman violated his First Amendment rights by deleting Davisons comments on Plowmans official Facebook page. The court found Davisons comments were off-topic, and that in that case Plowman could legally police the discussion on his page.

Davison, who acted as his own attorney, has not yet returned a message requesting comment.

rgreene@loudounnow.com @RenssGreene

See original here:
Court Rules Randall Violated First Amendment on Facebook - Loudoun Now

Posted in First Amendment | Comments Off on Court Rules Randall Violated First Amendment on Facebook – Loudoun Now

Free Speech & Republicans: First Amendment Trumps Punishing … – National Review

Posted: at 5:54 pm

By a margin of over two to one, Republicans support using the courts to shut down news media outlets for biased or inaccurate stories, according to a recent poll from The Economist and YouGov.

When asked if cracking down on the press in this manner would violate the First Amendment, a narrow majority of Republicans agreed that it does, seeming to create a contradiction. However, a further question gave them a chance to clear the air and reaffirm the primacy of principle over political expediency: Which is more important to you? it asked, (A) Protecting freedom of the press, even if that means media outlets sometimes publish biased or inaccurate stories; (B) Punishing biased or inaccurate news media, even if that means limiting the freedom of the press; (C) Not sure.

Shockingly, a full 47 percent of Republicans support punishing biased or inaccurate news media, even if that means limiting the freedom of the press, versus just 34 percent who support protecting freedom of the press, even if that means media outlets sometimes publish biased or inaccurate stories. By contrast, 59 percent of Democrats said they prioritize protecting the freedom of the press, dwarfing the 19 percent who see it the other way.

On this issue, the Democrats are right. Freedom of the press is included in the Bill of Rights for two reasons: It matters, and there is perpetually an illiberal temptation to extinguish it. Republican politicians will always call CNN and the New York Times biased and inaccurate. Democratic politicians will always say the same about Fox News and Breitbart.

Both sides are right, and it doesnt matter: None of those organizations should be forcibly shuttered. Thats what happens in Turkey or Russia when a newspaper offends the ruling party. In America, if you think a media outlet is biased, your best recourse is to say so, convincing others with reason instead of blocking their access to information you dont like. This way, individuals decide which outlets deserve their trust. The only other option, the one that is apparently favored by a plurality of Republicans, is for the state to make those decisions for all of us.

This would be incredibly dangerous, even under the best of circumstances. Who, after all, can agree on what is or is not biased, or what amount of bias can be tolerated? Republicans correctly complain, for example, that ostensibly neutral fact-checkers like Politifact are themselves biased and sometimes inaccurate. The same is true of judges and politicians. In fact, I remember when every right-wing talk-radio host would decry the fairness doctrine, which also sought to suppress speech under the guise of eliminating bias.

In fact, giving the state the power to shut down media outlets for bias or inaccuracy is an admission of a lack of confidence in our ability to self-govern as a free people. A free people could deliberate and vote without relying on the fist of the state to crush all sources of information that might mislead them.

The proximate cause of the yearning for that fist among Republicans, it is only reasonable to assume, is President Trumps strident criticism of the media. Trump seems to be obsessed with the media, constantly denouncing it on Twitter and elsewhere for crimes both real and imagined. He even called it an enemy of the American people. To some conservatives, this is such a joy to behold that it has almost become an acceptable substitute for tangible accomplishments.

This is a grave mistake. Though it may satisfy a human yearning, punishing ones enemies should not be the purpose of our politics. Conservatives and Republicans have plenty of ideas to improve the country, and they have the power to implement them. From education to tax policy to abortion, we could make America more fair, more free, more prosperous, and more humane. But instead, Trump directs Republican power and attention at CNN and MSNBC.

Ignoring our principles and subordinating the First Amendment to the impulses of the moment, Republican voters, if the poll is in fact representative, seem to have let the desire to punish overwhelm them. This is both an effect and a cause of the Trumpified conservatism that some, including National Reviews own Jay Nordlinger, have warned us not to indulge.

Trump does not speak, you may have noticed, of freedom or tradition or principle. He has little time for imagined republics and principalities in which ought overshadows is. He prefers victory, even if it requires an untraditional and un-conservative approach. Forget principle: To win is now to be virtuous.

It is not hard to see the appeal of this ultimately ruinous mindset. Its viscerally satisfying to punish ones enemies, after all. But American conservatives would do well to remember Nietzsches dictum, and Distrust all in whom the impulse to punish is powerful. Though the policies we have to enact are more constructive than our impulse to punish the media for its bias, we risk becoming too free from the burden of principle to care.

READ MORE: Free Speech at the Supreme Court Anti Free Speech Radicals Never Give Up Liberals & Conservatives Need to Disarm Over Free Speech

Elliot Kaufman is an editorial intern at National Review.

See the rest here:
Free Speech & Republicans: First Amendment Trumps Punishing ... - National Review

Posted in First Amendment | Comments Off on Free Speech & Republicans: First Amendment Trumps Punishing … – National Review

The First Amendment: Free press, open meetings laws survive RI State House standoff – The Providence Journal

Posted: at 5:54 pm

Columnist Edward Fitzpatrick looks at two new state laws.

On June 30, an epic impasse between Rhode Island House and Senate leaders left the states $9.2-billion budget in limbo along with scores of other pieces of legislation. But amid the State Houses marble maze of power politics and clashing priorities, two bills managed to emerge at the last minute that will bolster press freedom and create a more open government.

Before the legislative session came to an abrupt halt, the House and the Senate had unanimously approved one of those bills the Student Journalists Freedom of Expression Act, which protects student journalists and their advisers from censorship and retaliation.

To become law, the House and Senate versions of that bill needed to cross over for votes in the other chamber. But just as those votes were about to take place on June 30, the Senate moved to amend the budget and House Speaker Nicholas A. Mattiello, D-Cranston, sent the House home in protest.

We thought that was it, said Frank LoMonte, executive director of the Student Press Law Center, based in Washington, D.C. I was staying up, watching and refreshing the [General Assembly] website until 10:30 p.m. before I gave up hope.

But just before midnight, Steven Brown, executive director of the American Civil Liberties Union of Rhode Island, contacted LoMonte, saying the Senate had passed the House version of the student press freedom bill. That was a little more thrilling of a roller coaster ride than I would have liked, LoMonte said. But I am happy where it landed.

The Senate bill, introduced by Sen. Gayle L. Goldin, D-Providence, landed in limbo. But the House bill, introduced by Rep. Jeremiah T. OGrady, D-Lincoln, landed on Gov. Gina Raimondos desk, and she signed it into law on July 18.

So why does the new law matter? Let two student journalists explain.

Peder S. Schaefer, editor of the Providence Country Day student newspaper, The Roundtable, noted that earlier this year student journalists in Kansas dug into the background of their newly hired principal, revealing questionable credentials and leading to her abrupt resignation.

This bill would enable stories like that to happen, Schaefer said. Especially in high school, schools have the power to shut things like that down very quickly. This bill puts protections in place that allow students to go after stories like that or to write about school policies, such as school start times.

Mary Lind, co-editor of the Lincoln High School student newspaper, The Lions Roar, said she called state legislators and the governors office, urging them to adopt the law to prevent the horror stories of censorship in other parts of the country.

It will show students in Rhode Island that although theyre under 18, their voices still matter and that they are still reliable sources, she said. They are not fake news.

Back in March 2016, I wrote about how a student at The Met High School, Yanine Castedo, launched the local push for a student press freedom bill, working with the Providence Student Union. Zack Mezera, executive director of the Providence Student Union, said student journalists now wont have to worry about censorship if, for example, they write about the condition of school buildings.

More broadly, he said, It protects journalism in an age when journalism is under attack, and it sends a message about protecting youth as people with valid, legitimate experiences.

Rhode Island became the 13th state to pass a student press freedom law, joining Nevada and Vermont in enacting such a law this year. And LoMonte noted the House and Senate floor votes were unanimous, saying, Its always gratifying that support crosses party lines and ideological lines. Freedom of the press should not be a partisan or political issue.

LoMonte also pointed out that the new Rhode Island law protects high school and college journalists in both public and private schools.

You could argue that its the most comprehensive law of its kind in the country, he said. Its certainly one we will show to other states as a model.

Such laws are necessary, LoMonte explained, because the U.S. Supreme Courts 1988 ruling in Hazelwood v. Kuhlmeier upheld the right of a public high school to censor student newspaper stories about teen pregnancy and the effects of divorce on children. Since then, states have been passing anti-Hazelwood laws.

And now LoMonte hopes Rhode Island schools will adopt rules reflecting the new law so that disputes over student journalism can be handled internally rather than in state court.

The student press freedom law wasnt the only bill to narrowly escape Smith Hill purgatory on June 30. Senate Majority Leader Michael J. McCaffrey and Rep. Evan P. Shanley, both D-Warwick, had introduced legislation to make two significant changes to the state Open Meetings Law. While McCaffreys bill ended up in limbo, the Senate passed the House version, and Raimondo signed that bill into law on July 18.

The new law requires all public bodies to keep minutes of open meetings (not just on the state level but also the city and town level), and it excludes weekends and holidays from the calculation of the 48-hour public notice requirement.

These reforms to the Open Meetings Act were significant and will affect every citizen of Rhode Island positively, said John M. Marion, executive director of Common Cause Rhode Island. Right now, municipalities dont have to put minutes online, but theyre going to have to. Thats great because there are a lot more municipal bodies than state bodies, and they affect citizens on a daily basis setting property taxes, hiring school superintendents, managing municipal pensions.

The ACLU had reviewed public-meeting notices a couple of years ago. And we were quite shocked to see how often public bodies posted notices of a Monday meeting late on a Friday afternoon, Brown said. These werent just small agencies no one has heard of; these were city councils and school committees.

Its not only that people dont learn about the meetings in advance, but they have very little time to prepare if they want to speak out on an issue.

Marion said the idea for the new law originated with some conservative constituents in McCaffreys district. Open government is an issue that unites the left and the right, he said.

Indeed, thats a key lesson for students of journalism and politics: A free press and open government serve both sides of the partisan divide, helping to inform citizens and hold whoever is in power accountable.

Edward Fitzpatrick is director of media and public relations for Roger Williams University, a New England First Amendment Coalition and Common Cause Rhode Island board member, and a former Providence Journal columnist. His First Amendment column appears monthly in The Journal. This piece first appeared on the universitys First Amendment blog at firstamendment.rwu.edu.

Here is the original post:
The First Amendment: Free press, open meetings laws survive RI State House standoff - The Providence Journal

Posted in First Amendment | Comments Off on The First Amendment: Free press, open meetings laws survive RI State House standoff – The Providence Journal

Unite the Right rally sparks First Amendment questions – The Daily Progress

Posted: at 5:54 pm

The limits of constitutionally protected speech and freedom of assembly are being put to the test in Charlottesville.

In less than two weeks, members of the National Socialist Movement, the pro-secessionist League of the South and hundreds of their allies in the Nationalist Front and alt-right movement will gather in Emancipation Park for the Unite the Right rally.

Arranged by self-described pro-white activist Jason Kessler, the rally is expected to also draw hundreds of confrontational counter-protesters who will be able to gather at McGuffey and Justice parks, per event permits recently secured by University of Virginia professor Walt Heinecke.

While the stage for Aug. 12 is nearly set, with massive demonstrations and protesters expected, questions regarding the enforcement of law and order remain.

City officials said they have been working with Kessler to relocate the rally elsewhere because of the number of people the event is expected to draw to the downtown area. Kessler, however, does not want to change venues, according to authorities.

The director of the Thomas Jefferson Center for the Protection of Free Expression says the city is allowed to move the event in order to maintain public safety and prevent disruption to traffic and business downtown.

They should be able to relocate it to a more suitable location, said the centers director, Clay Hansen. As long as its for legitimate reasons and they dont try to minimize or hide the rally in some far-off corner of the city.

S. Carolina group moves event to Darden Towe Park

An attorney supporting Kessler, however, says the city is prohibited from doing so.

It would be ridiculously unconstitutional for the city to try to move the event elsewhere on that basis, said Kyle Bristow, an attorney and director of the Michigan-based Foundation for the Marketplace of Ideas, a self-described nonpartisan civil liberties nonprofit.

The groups board of directors includes Mike Enoch, a white nationalist commentator and podcaster. Enoch will be one of the featured speakers at the Unite the Right rally.

In an email last week, Bristow said his recently founded legal network is quickly becoming the legal muscle behind the alt-right movement. The alt-right is considered a far-right movement that combines elements of racism, white nationalism and populism while rejecting mainstream conservatism, political correctness and multiculturalism.

Two local conservative activists are distancing themselves from Jason Kessler, who invited anti-Semitic and white nationalist speakers to headline his rally.

Earlier this year, according to Bristow, his organization helped coordinate the legal case that led to an Alabama court requiring Auburn University to let white nationalist Richard Spencer speak on campus. Auburn settled the case earlier this year with a $29,000 payout to cover the legal fees of the student who filed the suit, according to the universitys student-run newspaper, The Auburn Plainsman.

In recent weeks, business owners, activists and others have commented on the possibility of violence at the rally, sometimes comparing it to the melees between self-styled anti-fascist protesters and alt-right ideologues at protests in Berkeley, California, earlier this year.

In a letter to city officials last week, Bristow said law enforcement officials could potentially deprive the right-wing activists of their constitutional rights if authorities do not prevent leftist thugs from attacking people at the rally.

If the Charlottesville Police Department stands down on Aug. 12, it would not be farfetched to postulate that the alt-right rally participants will stand up for their rights by effectuating citizens arrests or by engaging in acts of self-defense, Bristow said.

It would be imprudent, reckless, unconstitutional and actionable for the Charlottesville Police Department to not maintain order, he said, adding that anyone who interrupts the rally also could be sued.

Bristow alleged in his letter that Kessler recently was told that law enforcement officials would not have to intervene should left-wing protesters attack the rally attendees. A police spokesman refuted that claim Friday, saying that the department officials met with Kessler and a representative of his security staff earlier this month and discussed several security concerns.

At no time was Mr. Kessler informed officers would not take action against those that attempted or committed violence towards another, said Lt. Steve Upman.

Kessler did not reply to calls and messages last week.

Some suspect that the possible violence could be the result of intentional right-wing agitation, as local activists with Solidarity Cville have recently exposed posts on social media and far-right blogs in which supporters of Unite the Right rally seemed to revel in the possibility of violence and call on others to prepare for a fight.

Republicans and Democrats alike have cast the hardcore conservatives and populists associated with the alt-right movement as racist for its provocative leaders explicit anti-Semitism and unabashed calls for a white-ethno state.

While their beliefs and activism have turned off many, the rallys primary goal of protesting the citys effort to remove a statue of Confederate Gen. Robert E. Lee has caused some Southern heritage supporters and political moderates to become sympathetic to Kesslers cause.

But the slow revelation that the events extreme far-right elements will be met by liberals, leftists and anti-racists has scared others away.

Business owners say they are concerned for the safety of their businesses and patrons if the rally gets out of hand.

According to Albemarle County spokeswoman Lee Catlin, the organizers of the Patriot Movements planned 1Team1Fight event in Darden Towe Park, which was being relocated from Greenville, South Carolina, have called it off.

Catlin said the organizers reportedly canceled their event because of unknown variables with the opposition.

Earlier in the week, an organizer for the event, who goes by the name Chevy Love on Facebook, said the event was not affiliated with the Unite the Right rally, saying that she did not want to associate with any of the hate groups expected to attend, listing both left- and right-wing activist groups.

Earlier in the week, before the organizers canceled the event in Darden Towe Park, the National Socialist Movement announced that members will be in attendance at the Unite the Right rally to defend Free Speech and our Heritage at the Lee Monument.

In an interview, Butch Urban, the movements chief of staff, said the organization had been planning to attend the event after it was arranged by Kessler earlier this summer.

The event also will draw leaders and followers of other groups in the Nationalist Front, an alliance of groups such as the Traditionalist Worker Party and The League of the South all of which are united in working toward the creation of an ethno-state for white people.

Although National Socialism is typically cited as the definition of Nazi ideology, Urban said his organization is not a neo-Nazi group.

Thats what everybody takes it to be. Thats not what it is, Urban said. National Socialism is about your country and your people come first. You dont support wars around the world and giving billions of dollars to other countries.

As for the calls for a white-ethno state, Urban said multiculturalism has only been pushed down everyones throat in the last 30 to 40 years. Thats not what everyone wants, he said.

Take a look at Chicago, theres a prime example of multiculturalism, he added, citing the citys reputation of having high murder and unemployment rates.

In the decades following World War II, U.S. courts have grappled with the First Amendment questions involving Nazi demonstrations and displays. Many of those cases have determined that Nazi and white supremacist rhetoric is constitutionally protected speech.

And while many object to those ideals, authorities cannot justify restricting speech despite the threat of violence and public disorder a principle known as the Hecklers veto. Both Bristow and local attorney Lloyd Snook recently mentioned the doctrine in recent comments about the upcoming rally.

In First Amendment theory, it is fundamental that a government cannot regulate speech based on its content, including on the fact that some people may be hostile to it, Snook wrote on his law firms website.

Published earlier this month, about two weeks after a North Carolina chapter of the Ku Klux Klan held a rally in Justice Park to protest the planned removal of the Lee statue, Snook wrote that there has been a disturbing complaint about law enforcement being hand in hand with the Klan and white nationalists.

In fact, the city police department is required to preserve order to allow the demonstration to go forward, Snook said. This is not a matter of choice, but of constitutional law.

In his commentary, Snook cited the 1992 Supreme Court decision that invalidated an ordinance in Forsyth County, Georgia, that required fees for any parade, assembly or demonstration on public property.

According to Snook, the Forsyth County government passed the ordinance after a violent civil rights demonstration in 1987 cost over $670,000 in police protection.

Two years later, when the Nationalist Movement had to pay fees to hold a protest against the federal Martin Luther King Jr. holiday, the group sued the county.

The case eventually came before the Supreme Court, which in a 5-4 opinion decided that the countys ordinance violated the First Amendment. Snook said the court struck down that ordinance because it had the possibility of being applied such that it would cost more to express unpopular viewpoints.

In recent weeks, some opposed to the Unite the Right rally have called on the city to make sure that Kessler pays the associated fees and obtains a liability insurance policy of no less than $1 million that the city requires for special events.

In an email last week, city spokeswoman Miriam Dickler clarified that the city makes distinctions between demonstrations and special events, and that the two are not interchangeable under the citys regulations.

The differences are attributable to United States Supreme Court decisions involving the First Amendment, Dickler said.

According to the citys Standard Operating Procedure for special events, a demonstration is defined as a non-commercial expression protected by the First Amendment of the United States Constitution (such as picketing, political marches, speechmaking, vigils, walks, etc.) conducted on public property, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers.

Regardless, she said that Kessler has provided a certificate of insurance voluntarily, and that the citys Special Events Coordinator has been communicating with Kessler since he filed the application.

Looking at another Supreme Court case, Hansen, of the local Thomas Jefferson Center for the Protection of Free Expression, said the courts 1977 decision in the National Socialist Party of America v. Village of Skokie case feels closest to what were dealing with here in the city.

The case centered on a planned National Socialist demonstration in the village of Skokie, Illinois, which at the time had a large population of Jewish residents who survived detention in Nazi concentration camps or were related to a Holocaust survivor.

Fearing violence would be directed at the demonstrators who were planning to dress in Nazi-era uniforms with swastika armbands, a local court prohibited the event, an action that the U.S. Supreme Court later found to be unconstitutional in a 5-4 opinion.

In particular, the litigation in that didnt have to do with the march and the gathering itself it was more about symbols, Hansen said, explaining that the Supreme Court had to decide whether Nazi imagery could constitute fighting words, a legal distinction that prohibits some forms of speech that are likely to incite violence.

The court ultimately found that those symbols do not pass that threshold, which has in recent years largely fallen out of favor as doctrinal tool, Hansen said. Instead, the doctrine in recent years has morphed into a new rationale thats based on allowing authorities to stop speech that could lead to imminent lawless action, he said. Its useful if something goes wrong.

While the city could theoretically stop the Unite the Right rally as its happening, according to Hansen, its not a decision to take lightly, he said, adding that its unlikely that authorities will do so.

Its a high hurdle to legally justify stopping a demonstration, Hansen said.

The city has an obligation to handle any crowds that are on site as a result of a lawful and protected speech activity, he said. In a public park, and given the proper permit police are obliged to make sure that the event goes unimpeded.

Concerned that people protesting the Unite the Right could be arrested for participating in an unlawful assembly, Heinecke earlier this month applied to hold demonstrations at McGuffey Park and Justice Park.

At the Klan rally earlier this month, 22 people were arrested on various charges. About half of the arrests occurred after the rally had ended and authorities declared that the hundred or so people still on the street were illegally gathered. Authorities eventually used tear gas to force the crowd to disperse.

The best way to avoid that is to have some free-assembly zones at the parks, Heinecke said. He said the permits will allow the protesters to gather from 9 a.m. to 7 p.m. Aug. 12. The Unite the Right rally is scheduled for noon to 5 p.m.

Heinecke said there will be programming at the two parks. He declined to say which activist groups and organizations hes collaborating with to contend with Kesslers rally.

Alluding to the countrys legacy as it relates to racism against African-Americans, he said Charlottesville in particular has unfinished business when it comes to racial justice.

I think the city will be the epicenter of a conversation about racial justice in a new era were going toward with changing racial demographics, he said.

Asked about the alt-right activists concern that the nations changing demographics are tantamount to a displacement of white people, Heinecke said it saddens him that they are so fearful.

I think theyre operating out of fear rather than seeing an opportunity to create a diverse and equal society, he said.

Thats a sad thing when theres an opportunity to think about what the United States of America really means.

Read the rest here:
Unite the Right rally sparks First Amendment questions - The Daily Progress

Posted in First Amendment | Comments Off on Unite the Right rally sparks First Amendment questions – The Daily Progress