Daily Archives: December 11, 2019

WASHINGTON (TNS) President Donald Trumps executive order this week to consider a specific definition of antisemitism in discrimination cases could prompt a court battle with free speech advocates, who argue that the ability to deny Israels right to exist is protected under the First Amendment.The executive action is likely to please the presidents allies in the Israel advocacy community and, entering the heat of the 2020 presidential race, provide his campaign with a counterpoint to continued criticism that Trump himself has fueled rising antisemitism.The order will direct the Justice Department and the Education Department to use the International Holocaust Remembrance Alliance (IHRA) definition and its adjoining examples, which state that efforts to demonize, delegitimize or apply double standards to Israel are antisemitic in discrimination cases brought forth under Title Six of the Civil Rights Act.While Trumps order has been in the works for months, its emergence coincides with two Hanukkah receptions at the White House on Wednesday, which gather Republican supporters of his Israel policy.The IHRA definition has been recognized by the US Department of State, Israel, France, Germany and several other European governments, but it is not without controversy.In the United States, for example, the American Civil Liberties Union (ACLU) has opposed its usage under the Civil Rights Act on constitutional grounds, while overseas, a debate within the British Labour Party over whether to adopt the definition has embroiled leader Jeremy Corbyn in scandal before Britains parliamentary elections on Thursday.Trumps executive order, crafted by Jared Kushner and his longtime aide Avi Berkowitz, adopts the language of a stymied bill supported by Republicans and Democrats in both houses of Congress.The legislation, titled the Antisemitism Awareness Act, would require the Education Department to consider the IHRA definition under Title Six as a provision of the law that prohibits the flow of federal dollars to programs and organizations that are found to discriminate on the basis of race, color or national origin. While the bill was initially drafted by lawmakers from both parties, Republicans introduced it on their own this year, after Democrats requested a pause to consider alternative legislative options.One Democratic author of the House legislation, Ted Deutch of Florida, wants the bill broadened beyond its narrow focus within the Education Department, which began applying the IHRA definition in civil rights cases last year, and to adopt instead a whole of government approach that directs all federal agencies to adopt the framework.Its not that we wont reintroduce it what were considering is what is the most effective way to address antisemitism, a senior aide to Deutch said, noting that his office had not yet seen the text of the executive order.The assistant explained that if the president takes the Antisemitism Awareness Act, turns it into an executive order and applies it to other agencies, that is generally something we would support.The administration worked with Democrats on the order, consulting with David Krone, former chief of staff to former Senate majority leader Harry Reid of Nevada, among others.The order supersedes prior guidance and directs all relevant agencies, particularly the Justice Department and the Education Department, to consider the definition, according to one senior official, who said the White House would welcome congressional passage of a law that would strengthen Trumps executive order.Kushner first raised the idea of executive action in the spring when working with the White House Counsels Office and the Office of Legal Counsel at the Justice Department to address concerns expressed last year regarding the congressional effort by the ACLU. Kushner also consulted with Paul Clement, former US solicitor-general under president George Bush, the senior official said.Last year, ACLU argued that Title Six already protects religious minorities such as Jews from discrimination, and warned that the IHRA examples of antisemitism are constitutionally protected statements about Israel, including accusing people of being more loyal to Israel than to the United States, applying a double standard for Israel, or denying the Jewish people their right to self-determination.Over the past decade, local and state governments have passed aggressive legislation to combat the Boycott, Divestment and Sanctions movement targeting Israel, withholding critical dollars from organizations that partake in targeting Israel. According to data collected by the FBI and the Anti-Defamation League, such efforts have gained national steam amid rising antisemitism across the country.The administrations action on Wednesday will come on the heels of yet another controversy over Trumps rhetoric toward Jews, after he told an Israeli-American group in Florida last weekend that he expects attendees to vote for him in 2020 in order to protect their wealth.

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Trump antisemitism executive order sets up First Amendment battle - The Jerusalem Post

All together now, everybody sing: Turn, Turn, Turn.

GetReligion.org has been around since Feb. 1, 2004, and in internet years that is a long, long time. Some of us certainly me have gained more than a few gray hairs in the process.

For several years now, I have known that I would retire from full-time work here at GetReligion when the clock struck midnight and we reached Jan. 1, 2020. The question logically enough was whether this weblog would shut down or evolve back into something that I could do part-time, which was how things started out long ago.

The good news is that, well, we aint dead yet. The bad news is that we will have to do some major downsizing, which means well have to make changes in the amount of content that we offer here. After nearly a decade, Bobby Ross Jr. has already put out the word that he is leaving GetReligion and will now be writing a weekly religion-news roundup for Religion Unplugged that will also run elsewhere (including here, we hope).

Readers will not be surprised to know that a sign of the times in which we live the work we will be doing here in the future will require some fundraising. Visitors to the website will see more information about that sooner, rather than later.

But the big news today is that GetReligion will soon have a new home base, one linked directly to First Amendment studies, which means work tied to freedom of the press and freedom of religion.

As of Jan. 1, we will be based at the Overby Center for Southern Journalism and Politics, which is next door to the School of Journalism and New Media at the University of Mississippi. The chairman of the center is Charles L. Overby, for 22 years the CEO of the Freedom Forum, a non-partisan foundation focusing on the press, religious freedom and the First Amendment.

As a part of this move, I will be serving as a senior fellow at the Overby Center (press release here), cooperating with Overby and his team on public events linked to religion, news, politics and, yes, the First Amendment. I spoke at the center in 2012 and look forward to whats ahead. Videos of some of these GetReligion-related events will, I am sure, end up online. (Click here for a recent Overby Center event with David E. McGraw, a top lawyer for The New York Times.)

Let me add one or two personal notes. I have known Overby for a quarter of a century because of our mutual interest in how the mainstream press covers religion. He was a great help to me during my years at the Washington Journalism Center, when my students visited the Newseum during our discussions of journalism history. Over the years, Overby has frequently been a source of encouragement in my work as a syndicated columnist. Also, it helps to know that the dean of the Ole Miss journalism school is veteran newsman and educator Will Norton Jr., with whom I worked on journalism education projects during my tenure with the Council For Christian Colleges and Universities.

What else is ahead?

Lets say journalism, the First Amendment, good friends and barbecue. I can work with that. And I promise not to wear East Tennessee orange when visiting The Grove.

Stay tuned for further developments.

Read more:
Religion news, the First Amendment and BBQ: GetReligion will soon have a new home base - GetReligion

Timothy Zick believes the principles involved in the lessons hes drawing about the First Amendment in the current era are useful for readers to know and to embrace regardless of their political beliefs. (WYDaily/Courtesy of W&M Law School)

Writing his latest book on the First Amendment his fourth in 10 years William & Mary Law ProfessorTimothy Zickdecided to try something a little different. His new volume would be slimmer, more accessible to general audiences, and ripped from the latest headlines.

And as of Oct. 28, its also in eager readers hands.

InThe First Amendment in the Trump Era,Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School, not only examines the growing number of First Amendment controversies in the past three years, but also connects present concerns to episodes throughout American history. He also relates recent First Amendment controversies to the concept of dissent.

Indeed, dissent looms large, beginning when Zick dedicates his book to all the noisy dissenters past, present, and future.

Zick believes that dissenters deserve a significant amount of credit for doing the hard work of checking governments and influencing citizens, often at considerable cost to their own safety and livelihoods. Although he has not chosen the path of activism, Zicks First Amendment scholarship highlights public contention and dissent.

I am a true believer in the power of dissent to facilitate social, political and constitutional change, Zick said.

Zick wrote his most recent book with minimal legal jargon or extensive discussions of cases or doctrines. He wants it to be read by people whether they support the current president or not.

I think the principles involved in the lessons Im drawing to the current era are useful to know and to embrace regardless of your partisan stripe, Zick said. I didnt want to write a book that was anti-Trump so much as pro-First Amendment.

Cracks in that amendment were forming well before the 2016 election, the result of what Zick refers to as preexisting conditions. Among them were the weakening of the institutional press, heightened political polarization, the rise of the Internet and the distrust of experts and institutionsall of which the President took advantage of when the time arose.

Digitized culture gives you democratic speech cheap and efficient speech, Zick said. But it also gives you a culture that trades on instant conflict, hate and take-downs; its a very mixed bag. Zick added, Trump is an archetype of the erahyper-communicative, hyper-combative and deeply polarizing.

Witnessing increasingly strident speech before and during the 2016 campaign, Zick knew a book was imminent. He noted that candidate Trump incited his supporters to rough up protesters, promised to open up the libel laws, and even proposed shutting down parts of the Internet to thwart terrorists. Many of these themes and patterns continued after Trump became president.

As of a year into his presidency, I thought there was already enough material for a book, Zick said. And the President just kept on talkingand tweeting.

With more and more examples piling up after the publication of the book, and the possibility of a second Trump administration, Zick does not rule out a second edition with, at the very least, an updated introduction or prologue.

I dont know if Trump will emphasize new themes or issues if he is re-elected or just go back to the old attacks, Zick said, So you just might get more examples of things that I point out in the book. Even so, the presidents views on free press and speech, and those of his supporters, are worth examining.

As noted, this book is very different from Zicks previous works. His other books include, Speech Out of Doors: Preserving First Amendment Liberties in Public Places, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties and The Dynamic Free Speech Clause: Freedom of Speech and Its Relation to Other Constitutional Rights. These books were written primarily for academic audiences. The current book is aimed at a much broader audience and is about events happening in real time.

Its happening in front of you, and that poses challenges for trying to write with some dispatch, but it also means that the book connects to current and timely concerns, Zick said.

Pondering an audience beyond the academy, Zick hopes that readers will learn about the many misperceptions people have about the First Amendment. Its one thing, for example, for a president to speak about a subject from a bully pulpit, Zick says, but its quite another for him to coerce others or regulate speech.

And then there is the misunderstanding about the press in general the idea that there is a separate Constitutional provision the Free Press Clause that gives the institutional press a broad set of rights or immunities. The reality is that the institutional press does not generally have any special rights and privileges. The press rests on far shakier constitutional ground than many Americans realize.

I think its important to remember that the press has always been both problematic and essential, Zick says. Its always had excesses like any other institution, but its also been critically important to self-government, the search for truth, and other First Amendment values.

Above all, Zick hopes readers learn about the value of dissent. He notes that noisy dissent has long been considered part of the American ethos, but the reality is that the citizenry have an increasingly low tolerance for opinions that they dont agree with, from those who attend Trump rallies to students on college campuses.

Although headlines seem more clamorous as a new election looms, Zick nevertheless feels cautiously optimistic, particularly given the evidence that people still exercise their right to disagree and disrupt. He cites as examples the March for Life, the Womens March after the 2016 election, and protests at airports after the initiation of the Muslim travel ban.

These were pockets that suggest dissent is very much alive, and people havent caved into efforts to suppress public contention, Zick said.

Early reviews of The First Amendment in the Trump Era have been favorable. Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School, says the book makes a truly important contribution to our understanding of the contemporary First Amendment. Nadine Strossen, the John Marshall Harlan II Professor of Law at New York Law School and past president of the ACLU, calls the book a must read and says, Zicks book shows how the lessons of the past can helpfully guide us through the unique First Amendment challenges we face today.

Zick says his next project might be about public protests. In the meantime, he is enjoying talking about his latest book and sharing it with others.

I have friends and neighbors who are reading it, and asking questions, Zick says. Those conversations have been gratifying, and I hope others will learn about the First Amendment by reading the book.

Zick graduatedsumma cum laudefrom Indiana University andsumma cum laudefrom Georgetown University Law Center, where he received the Francis E. Lucey, S.J. Award for graduating first in his class. While at Georgetown, he was a Notes and Comments editor of theGeorgetown Law Journal. Following law school, he was an associate with the law firms of Williams and Connolly in Washington, D.C., where he assisted in the defense of congressional term limits in the Supreme Court of the United States, and Foley Hoag in Boston.

Zick served as a law clerk to the Honorable Levin H. Campbell of the United States Court of Appeals for the First Circuit. He also served as a trial attorney in the Federal Programs Branch of the United States Department of Justice, where he defended the constitutionality and legality of a variety of federal programs and statutes.

A frequent commentator in local, national, and international media regarding public protests and other First Amendment concerns, Zick testified before Congress on the Occupy Wall Street protests and rights of free speech, assembly and petition. He received the Plumeri Award for Faculty Excellence in 2011, 2013 and 2017.

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W&M professor's new book examines the First Amendment in the Trump era - WYDaily

NELSON COUNTY, Va. (WVIR/WHSV) Nelson County became the latest locality in Virginia to declare itself a Second Amendment sanctuary on Tuesday afternoon.

In a 4-1 vote, the Nelson County Board of Supervisors passed a resolution, similar to that which has been passed by over 40 other localities, in support of their citizens' Second Amendment rights.

The Nelson County courthouse was packed with people there for the decision, but even before the hearing, the night before, poor weather didnt stop people from packing the parking lot at the courthouse advocating for it in a rally.

"We don't have anybody carrying weapons, nobody's in tactical gear. We're just sane Americans and we just like to hunt we like to shoot guns. Its all legal and we want everybody to know that we're normal folks, organizer Don Heres said.

Nelson County's decision on Tuesday followed multiple similar decisions made Monday night. In the Shenandoah Valley, Shenandoah County's board voted unanimously to adopt a resolution to become a Second Amendment sanctuary.

"They and we want to send a loud signal to the General Assembly and the governor that they do not want these restrictive gun laws to be passed," said Shenandoah County supervisor Brad Pollack.

Also approving similar resolutions Monday night to become Second Amendment Sanctuaries were the city of Galax, the town of Grottoes, the town of Rocky Mount, Rockbridge County, and Bedford County.

This movement has spread across the 5th District, where almost half of the counties already have passed such a resolution, 5th District Congressman Denver Riggleman said.

Riggleman sent out a video message on Monday night urging the board of supervisors to support the resolution.

The Second Amendment is a Constitutional right for all Americans that should not be infringed, and I stand with all those who are exercising their First Amendment right to free speech on this important issue," Riggleman said.

Nelson Supervisor Jesse Rutherford says he feels the discussion is bringing communities across the commonwealth closer together.

For the first time, I feel like we're coming together as a community on the issues that matter, and of course I want to recreate this energy in many other aspects, whether that's education or the drug crisis."

Also voting Monday night to become a Second Amendment Sanctuary were the city of Galax, the town of Grottoes, the town of Rocky Mount, Rockbridge County, and Bedford County.

Democrat leaders have said the concept is unnecessary.

"If you look at what we're doing, I don't think it infringes on anybody's Second Amendment rights," said State Senator John Edwards, a Democrat from Roanoke.

In the Shenandoah Valley, Page County and Augusta County have already voted to adopt similar resolutions in recent weeks.

The Rockingham County Board of Supervisors will hear from the public on the topic on Wednesday, Dec. 11.

The city of Staunton is not planning a specific hearing on the topic, but the city's sheriff recently called on the public to attend an upcoming city council meeting to make their voices heard.

Many other localities are still in the process of discussing taking the step.

The concept of becoming a 'Second Amendment Sanctuary' is essentially one in which counties, cities, or towns vote to adopt a resolution declaring their intent that public tax money in their jurisdiction not be used for any measures that violate the Second Amendment.

The movement a conservative spin on 'sanctuary cities,' which vowed not to work with ICE to deport undocumented immigrants began shortly after the election earlier this month in which Democrats won full control of the Virginia General Assembly for the first time in decades.

Many people in areas that voted along conservative lines believe that their constitutional rights may be threatened under a Democratic-controlled legislature.

Not many bills have been filed for Virginia's 2020 session yet, but one gun control bill has been proposed by a Democrat that's created a stir on social media and pushed the conversation on guns: SB 16, which would make it a Class 1 misdemeanor "to import, sell, barter, or transfer any firearm magazine designed to hold more than 10 rounds of ammunition" and expand the definition of "assault firearm" under Virginia law, prohibiting anyone from possessing a gun that meets the new definition of "assault firearm." Possessing or transporting a gun under the new definition of an "assault firearm" would become a Class 6 felony.

Senate Bill 18 would raise the age for purchasing a firearm in Virginia to 21 and require mandatory background checks for any transfer of firearms, instructing State Police to establish a process for people to obtain the background checks.

To counter possible gun control laws, the concept of becoming a 'Second Amendment sanctuary' means that a county expresses its intent that its public funds not be used to restrict Second Amendment rights.

The resolutions aren't legally binding, and any challenge that would result to laws passed next year would go to the courts, but the resolutions put forth a public stance on behalf of counties' or cities' citizens.

Read more from the original source:
Nelson County board joins dozens of others to become a 2nd Amendment sanctuary - WHSV

WASHINGTON The lawsuit, a federal judge found, bordered on the delusional. A Louisiana police officer injured in a protest tried to sue the hashtag #BlackLivesMatter, which amounted, wrote Judge Brian A. Jackson of the Federal District Court in Baton Rouge, to picking a fight with an idea. A hashtag, Judge Jackson wrote, is patently incapable of being sued.

The officer also sued Black Lives Matter, which the judge said was also a nonstarter. It is, he wrote, a social movement rather than an organization or entity of any sort that could be a defendant in a lawsuit.

A third part of the lawsuit seeking to hold a leader of the movement liable for the officers injuries reached the Supreme Court on Friday. Judge Jackson had dismissed that part of the case on First Amendment grounds, but an appeals court revived it, alarming civil rights lawyers and experts on free speech.

The officer, according to a lawsuit in which he was identified as John Doe, was injured in Baton Rouge by a demonstrator who threw a rock that broke the officers teeth and left him with injuries to his jaw and brain. The demonstrator has not been found.

The protest, which occurred in the summer of 2016, concerned the fatal shooting of a black man, Alton B. Sterling, by two police officers. The demonstration started peacefully but turned violent.

The officer sued DeRay Mckesson, a Black Lives Matter activist, claiming, without providing details, that Mr. Mckesson had incited the violence that led to his injuries. Mr. Mckesson was present at the protest, which blocked the highway in front of the Police Departments headquarters, but he did not throw the rock that hit the officer in the head.

Judge Jackson ruled for Mr. Mckesson, saying he was protected by the First Amendment. Liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence, he wrote, quoting a landmark 1982 Supreme Court decision, N.A.A.C.P. v. Claiborne Hardware Co.

Allowing such lawsuits, Justice John Paul Stevens wrote for the court, would chill free speech rights and hand government officials a powerful tool to suppress the rights of black citizens to challenge a political and economic system that had denied them the basic rights of dignity and equality that this country had fought a Civil War to secure.

The federal appeals court in New Orleans reversed the part of Judge Jacksons ruling concerning Mr. Mckesson, letting the officers lawsuit move forward.

Officer Doe alleges that Mckesson was negligent for organizing and leading the Baton Rouge demonstration because he knew or should have known that the demonstration would turn violent, Judge E. Grady Jolly wrote for a unanimous three-judge panel of the court, the United States Court of Appeals for the Fifth Circuit. That was enough to let the case proceed, Judge Jolly wrote.

Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders and demonstrators, and notwithstanding, did so anyway, the judge wrote.

Garrett Epps, a law professor at the University of Baltimore, called the ruling an affront.

The decision was not simply lawless, but insolently so, he wrote in The Atlantic.

On Friday, the American Civil Liberties Union asked the Supreme Court to hear Mr. Mckessons appeal. David Cole, the groups legal director, said the appeals court had made a grave and dangerous mistake.

If the law had allowed anyone to sue leaders of social justice movements over the violent actions of others, he said, there would have been no civil rights movement.

The officers lawsuit contended that Mr. Mckesson was liable for his injuries by failing to calm the crowd.

The one comment from Mr. Mckesson quoted in the officers lawsuit did not support the idea that he had incited the violence, Judge Jackson found.

The comment was part of an interview with The New York Times the day after the demonstration. The police want protesters to be too afraid to protest, Mr. Mckesson said.

Judge Jackson said the statement was protected by the First Amendment.

Mckessons statement does not advocate or make any reference to violence of any kind, and even if the statement did, mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment, Judge Jackson wrote, quoting from the Claiborne Hardware decision. This statement falls far short of being likely to incite lawless action, which plaintiff would have to prove to hold Mckesson liable based on his public speech.

In its petition seeking Supreme Court review, the A.C.L.U. said the principle announced in the Claiborne Hardware case was no relic.

Indeed, the petition said, the rule is of particular value to the rights of protesters be they same-sex marriage opponents in Berkeley, Calif., or gun control proponents in Boise, Idaho who take to the streets to persuade their fellow citizens to reconsider locally orthodox opinions.

Read more from the original source:
Violent Protests and Free Speech: Whos to Blame for an Officers Injuries? - The New York Times

Last year, in response to Donald Trumps claim that an adverse judicial ruling was wrong because it was issued by an Obama judge, Chief Justice John Roberts replied that the federal judiciary does not consist of Obama judges or Trump judges, Bush judges or Clinton judges. Noting the importance of an independent judiciary, Roberts characterized all of his fellow federal jurists as an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.

That statement was entirely appropriate andgiven the current Presidents penchant for personal attacks on anyone who criticizes or disagrees with himcourageous. Trump seeks to delegitimize all institutions that challenge him, including Congress, the press, and the courts. He wants Americans to view the exposure of his use of a White House visit and desperately needed defense funds to extort a political favor from Ukraine as simply political opposition by Democrats; he seeks to dismiss factually accurate but unflattering reportage as fake news; and he hopes to discredit court rulings that hold him accountable to the law as the outputs of partisans. Accordingly, Roberts deserved high praise for standing up to Trumps Obama judge line.

Does the Chief Justices view have broader implications? Article IV, Section 3 of the Delaware Constitution requires that that states judiciary be nearly equally balanced between Democrats and Republicans. Lawyer James Adamsa registered independent who wants to be a judge in Delawaresued the governor on the ground that the selection process unconstitutionally conditions a government job on party affiliation. The U.S. Court of Appeals for the Third Circuit agreed with Adams and invalidated the selection procedure. Last week, the Supreme Court granted review of that ruling.

Much of the rhetoric of the Third Circuit opinion echoes Chief Justice Robertss rebuke of Trump. The court quotes the Delaware Code of Judicial Conduct, which requires state judges to be unswayed by partisan interests. It also quotes the Delaware Supreme Court, which has said that state judges must take the law as they find it, and their personal predilections as to what the law should be have no place in efforts to override properly stated legislative will.

If Delaware state court judges are like their federal counterparts in standing outside of partisanship, then the U.S. Supreme Court should affirm the Third Circuits invalidation of Delawares partisan balance requirement, right? Not necessarily. As I explain below, unlike Trumps efforts to delegitimize the judiciary, Delawares recognition of the role of partisan affiliation can and probably should be understood as a permissible means of limiting the role of politics in judicial appointments and judging.

As it comes to the Supreme Court, Carney v. Adams poses a threshold question and a potential remedial question that I shall set aside here. The threshold question is whether Adams has legal standing to challenge part or all of the relevant Delaware constitutional provisions. Should Adams prevail on standing and the merits, his case will pose the further question of how much of the appointment process to invalidate, a question that the Third Circuit deemed one of severability.

On the merits, the case appears to fall within a line of Supreme Court cases that limit states ability to use the so-called spoils system under which plum government jobs are reserved for members of the party in power. In 1976 in Elrod v. Burns, the Supreme Court held that treating government jobs as patronage typically violates the First Amendment right of expressive association. The core logic of Elrod and the later cases is simple: Affiliating with a political party is a form of political speech; hence, reserving jobs for people who affiliate with a particular party is a viewpoint-based restriction on speech and therefore presumptively unconstitutional.

The Supreme Courts patronage-limiting cases recognize an exception for so-called policymaking positions. Delaware Governor John Carneys brief in support of Supreme Court review and the briefs of supporting amici argue that judges are policy makers, so the exception applies here.

The Third Circuit rejected that argument. That court said that while policy considerations can figure into judicial decisions, they do not play the right kind of role to count for the policymaking exception. The exception is justified by the fact that a governor (or President in the federal system) needs people in top positionspolicymaking positionswho support the governors (or Presidents) own policy priorities. Thus, it does not violate the First Amendment for a Republican governor (or President) to require that top lieutenants be Republicans. However, the Third Circuit went on to explain, judges do not carry out anyone elses political or other agenda. On the contrary, once on the bench, they are supposed to be independent.

Governor Carney and his supporting amici counter that the policymaking exception to the Elrod line of cases has a broader rationale. A brief by law professors in support of the governor notes that in many areas of the law, judges have substantial room to give effect to their policy views, and that this is especially true in Delaware, where the courts make corporate law that typically has nationwide effect. Party affiliation, this brief and others say, is a fair proxy for policy views, which are surely relevant to considering who should be a judge.

The Supreme Court could reverse the Third Circuits ruling based on the notion that the policymaking exception extends beyond officials answerable to the head of the executive branch. It could also reverse the judgment based on a different rationale. Regulations of free speech can be upheld where they are narrowly tailored to serve a compelling interest. Governor Carney argues that Delawares partisan-balance rule serves the compelling interest in promoting the appearance and reality of an impartial judiciary. A similar rationale might be offered for partisan-balance rules applicable to various federal agencies, including the Federal Deposit Insurance Corporation, the Federal Trade Commission, the Securities and Exchange Commission, the Federal Communications Commission, the Commission on Civil Rights, the Federal Energy Regulatory Commission, and the Federal Election Commission.

The Third Circuit opinion expressed skepticism about whether partisan balance is a compelling interest with respect to the state judiciary. However, that court assumed without deciding that it is and rejected the partisan balance rationale for a different reason. According to the Third Circuit, the Delaware selection provision is not narrowly tailored to advance the goal of impartiality because there is no need to exclude political independents.

In sum, the Supreme Court could reverse the Third Circuit on any of three main grounds. First, it could find that Adams lacked standing. Even if Adams has standing, the Court could find, second, that the policymaking exception to the First Amendments bar on political patronage is broad enough to cover judges. Third, even if the Court rules against Governor Carney on both of those grounds, it could find that the interest in partisan balance is both compelling and necessarily excludes extreme views that do not fall within one of the two major parties in what is, after all, a two-party system.

I wont hazard a prediction regarding any of the possible grounds for reversal. Instead, Ill conclude by noting that Carney v. Adams implicates a profound question.

Any minimally sophisticated observer of the courts understands that party affiliation is a fair proxy for policy views, which play a substantial role in a judges decision in the sorts of contested cases that lead to appellate litigation. Accordingly, President Trump was not entirely wrong to refer to an Obama judge. After all, journalists frequently identify the President who appointed a judge involved in an important ruling as a signal to readers of the likely ideological lean of that judge.

At the same time, however, too-frequent or too-ready identification of judges with political parties is both inaccurate and destructive. It is inaccurate because nearly all judges try in good faith to follow the law, and often the law is sufficiently determinate to afford no room for resolving cases based on their ideological druthers. That is largely what Chief Justice Roberts meant when he criticized the Presidents reference to an Obama judge.

The Chief Justice also sought to undercut a potentially dangerous implication of Trumps statement: If the public comes to see the courts as no different from political actors like legislators and governors, that itself will undercut the rule of law. Indeed, one suspects that Trump refers to judges whose rulings he dislikes by political affiliation for the precise purpose of undercutting the courts as a check on his own power. Yet if Trump acts in bad faith, is there no way for good-faith lawmakers like those who wrote the Delaware constitutional provisions at issue in Carney v. Adams to take account of the political element of judging?

The Third Circuit thought not. Concurring, Judge McKee acknowledged that the challenged provisions were enacted to ensure selection of a judiciary whose political balance would serve notice that judicial decisions were devoid of politics and political motivations but nonetheless concluded that by elevating ones political affiliation to a condition precedent to eligibility for appointment to the bench by the Governor, Delaware has institutionalized the role of political affiliation rather than negated it.

Maybe thats right, but only if one assumes that the People cannot handle the truth. It should be possible for a state to act on the undeniable reality that judging is not completely separate from politics without leading the People to believe that, as Trump and other would-be dictators would have them believe, law is nothing other than politics.

Excerpt from:
If There Are No Obama Judges or Trump Judges, Does the Constitution Permit Delaware to - Justia Verdict

Tue, 12/10/2019 - 16:54pm | By: Dr. Alfred Rankins Jr.

Universities regardless of size, location, or mission serve as places where those who seek new knowledge come together and freely exchange ideas. Faculty teach in their areas of expertise and students come to classes, whether traditional or virtual, to learn and expand their understanding of those subjects. Those of us who have taught will tell you that through the constant exchange in diversity of thought, we also learn from our students. A university is a shining example of a marketplace of ideas.

The free exchange of ideas in this marketplace is most productive, robust and inclusive when everyones opinion is respected and unabatedly expressed. Freedom of speech is protected by the First Amendment and must be nurtured and preserved on university campuses. This means protecting the speech of conservatives, liberals, moderates, in short, everyone, not just those with whom we agree.

We may not all share the same views, but we can all agree on the importance of free speech. Protecting speech for any of us protects it for all of us. The First Amendment affords us all tremendous power the power to freely express our ideas. We should remember that with great power comes great responsibility. We are a better society when we hold the ideas of those who disagree with us in equal regard to our own ideas.

Jackson State University recently became the sixth public university in Mississippi to gain a green light rating from FIRE, the Foundation for Individual Rights in Education. FIRE is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at Americas colleges and universities.

The green light rating signifies that we have earned the highest rating from FIRE on policies regarding speech on our campuses. Jackson State University joins Alcorn State University, Delta State University, Mississippi State University, the University of Mississippi and the University of Southern Mississippi with a green light rating.

With the addition of Jackson State, we become the second state, after Arizona, to have all our universities currently rated by FIRE earn a green light rating. Mississippi University for Women and Mississippi Valley State University also have strong free speech policies, but they have not been rated by FIRE. Mississippi has more green light schools than any other state except North Carolina.

We all have a right to hold our own ideas, viewpoints and beliefs, as well as a responsibility to express them in a civil and respectful manner. It is important to have policies in place to ensure these rights are protected for all. I am pleased with and commend our universities for leading the way.

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The Mississippi Board of Trustees of State Institutions of Higher Learning governs the public universities in Mississippi, including Alcorn State University; Delta State University; Jackson State University; Mississippi State University including the Mississippi State University Division of Agriculture, Forestry and Veterinary Medicine; Mississippi University for Women; Mississippi Valley State University; the University of Mississippi including the University of Mississippi Medical Center; and the University of Southern Mississippi.

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Mississippi Public Universities receive recognition for protecting free speech | The University of Southern Mississippi - Southern Miss Now