Monthly Archives: April 2020

On Monday The FCCs Office of General Counsel and Media Bureau rejected a petition by Free Press demanding a government investigation into broadcasters that have aired statements by President Trump during White House Coronavirus Task Force briefings and related commentary regarding the coronavirus pandemic by other on-air personalities.

The letter order, co-signed by General Counsel Thomas M. Johnson, Jr. and Media Bureau Chief Michelle Carey, notes that Free Press petition seeks remedies that would dangerously curtail the freedom of the press embodied in the First Amendment and misconstrues the Commissions rules. The decision also makes clear that the FCC will neither act as a roving arbiter of broadcasters editorial judgments nor discourage them from airing breaking news events involving government officials in the midst of the current global pandemic.

Following the denial of Free Press petition, Chairman Pai issued this statement:: Under my leadership, the FCC has always stood firmly in defense of Americans First Amendment freedoms, including freedom of the press. And so long as I am Chairman of this agency, we always will. The federal government will notand never shouldinvestigate broadcasters for their editorial judgments simply because a special interest group is angry at the views being expressed on the air as well as those expressing them. In short, we will not censor the news. Instead, consistent with the First Amendment, we leave it to broadcasters to determine for themselves how to cover this national emergency, including live events involving our nations leaders.

See the rest here:
First Amendment Win - Radio Ink

from the silence-is-a-bad-idea dept

We've talked quite a bit about the importance of clear and transparent government during the COVID-19 pandemic, and how China's (ongoing) refusal to allow for people to speak out almost certainly contributed to the pandemic becoming even worse. And now the same situation has been showing up across the US as well. We've talked about hospitals firing doctors and nurses for speaking out about supply shortages, and now there's news that the US Navy fired the captain of the USS Theodore Roosevelt, Brett Crozier, after he sent his bosses a letter pleading for help as COVID-19 was spreading throughout his crew. Rather than recognize that he was pleading for help, they fired him... because his letter got out to the media and it made them look bad.

The Navy fired the captain of the USS Theodore Roosevelt on Thursday, four days after he pleaded for help as the coronavirus ravaged his crew, the Navy announced.

Acting Navy Secretary Thomas Modly announced that Navy Capt. Brett Crozier was relieved for loss of confidence.

"I just know that he exercised extremely poor judgment," Modly said.

But, perhaps the worst of all appears to be the gag order on actual infectious disease experts within the US government. Back in late February, when VP Mike Pence was first put officially in charge of responding to the COVID-19 threat, it was quickly reported that the White House had put in place a media gag order on all government officials, saying that all communication had to go through Pence's office. Indeed, various media appearances were cancelled by top CDC officials.

In response to this, the Knight First Amendment Institute at Columbia had sent a detailed FOIA request asking for any records regarding policies and procedures governing public communications by CDC employees and contractors, as well as a variety of related items, including instructions sent by the CDC's Public Affairs office. Having not received a response, the Knight Institute has now sued the CDC demanding it turn over the information as soon as possible. Given the situation, you can see why this might be pretty damn urgent.

We are in the midst of a global pandemic. The novel coronavirusand thedisease that it causes, COVID-19has spread to all fifty states. According to the Johns HopkinsCoronavirus Resource Center, as of April 2, more than 215,000 people in the United States havebeen diagnosed with COVID-19, and more than 5,000 people have died from it. At a WhiteHouse press conference on March 31, a member of the Coronavirus Task Force stated that theyexpected 100,000 to 240,000 deaths from COVID-19, even with mitigation efforts.

In the face of this public health emergency, the White House has restricted theflow of information from the CDCthe nations public health agencyto the public. Accordingto recent news stories, scientists and health officials at the CDC must now coordinate with theOffice of Vice President Mike Pence before speaking with members of the press or public aboutthe pandemic. These stories have raised concerns that public health experts who know mostabout the risks to the public are not being permitted to speak candidly and that the informationthe government is now conveying may be incomplete, inaccurate, or misleading.

The CDC itself imposes unusually stringent restrictions on the ability of CDCemployees to speak to the press and public. In 2017, Axios published text from a CDC policyannouncing that any and all correspondence with any member of the news media, regardless ofthe nature of the inquiry, must be cleared through CDCs Atlanta Communications Office.

As the lawsuit notes, the CDC denied "expedited" status to the Institute's FOIA request claiming -- somewhat ridiculously -- that the Institute failed to show that there is an imminent threat to the life or physical safety of an individual. Yeah, not an individual, but to fucking everyone. Just... look around, dammit. The fact that we can't get straight answers from people at the CDC is contributing to this mess we're in today where thousands of people are dying and many tens of thousands more are expected to. It seems pretty damn petty for the CDC to quibble over this. But they are doing so, and hence, they're getting sued.

Filed Under: cdc free speech, covid-19, foia, gag orders, mediaCompanies: knight institute

Go here to read the rest:
Knight First Amendment Institute Sues The CDC For Failing To Provide Details Of Its Media Gag Order - Techdirt

The U.S. Supreme Court has issued numerous rulings over the years regarding how the government can curtail certain rights during emergencies.

As the coronavirus pandemic began to unfold, local and state governments restricted certain aspects of life by shutting down non-essential businesses, limiting restaurants to delivery or carry-out only, and prohibiting large public gatherings.

All of this, of course, is being done in the interest of public safety, but some argue such measures violate some basic rights as expressed in the Constitution.

For example, we are granted the right to peacefully assemble under the First Amendment, but the government says we cant really do that right now. So, legally, whats going on here? How does a crisis of this magnitude change how we look at Constitutional rights?

A Compelling Governmental Purpose

Charles Rocky Rhodes, a professor at South Texas College of Law Houston, told Houston Matters host Craig Cohen that the First Amendment can sometimes be overcome in situations where there is whats known in the judicial circles as a compelling governmental purpose.

And this is the highest order the apex of things the government does, things like winning a war, or preventing an imminent attack, protecting children, Rhodes said. And, of course, another one of these is protecting the public health from a pandemic.

Pandemics Arent New Just New To Us

While this global situation is new to most Americans, pandemics used to be much more commonplace. The last one was the Spanish Flu outbreak in 1918, which resulted in our Constitution being tested by local and state regulations. And throughout our nations history the court has issued multiple rulings that have established legal precedent when it comes to distancing and quarantine methods.

One such case was Jacobson v. Massachusetts in 1905. A man named Henning Jacobson wanted to refuse a smallpox vaccine and maintained he had the legal right to do so.

However, the Supreme Court ruled in favor of the state, stating that a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.

Practicing Religion In A Pandemic

As the coronavirus pandemic continues, some churches are using technology to adapt to the stay-at-home order. But others maintain that churches are an essential service and will not close their doors. Gov. Greg Abbott has exempted them from the stay-at-home order, but Harris County and others have banned such gatherings.

A case from 1944 established some legal precedent for such an issue. Prince v. Massachusetts maintained that the right to practice religion freely does not include the liberty to expose the community to communicable disease.

As long as the government is treating all situations that present that risk the same, then that is not going to be a constitutional violation, Rhodes said.

Link:
How The Constitution Gets Tested In Times Of Crisis, Like A Pandemic - Houston Public Media

Dear Editor:

It has come to my attention that St. Marys County churches are being subjected to a program of Sunday morning soft surveillance. Individuals dressed in civilian clothes, arriving in civilian vehicles have been observed surveilling local church services. Is the purpose of this extralegal activity the enforcement the Governors 10-person limit?

The 10-person occupancy rule appears to be an unfortunate governmental over-reach. While there are Coronavirus hotspots in Maryland, such as Baltimore, the on-the-ground realities in many Maryland counties do not seem to warrant such drastic measures. Certainly, St. Marys is one such county.

Under the Governors executive orders, the big box stores remain open, allowing unlimited numbers of patrons, many crammed together much closer than the mandated six feet, with few of them wiping off cart handles, and virtually no one wearing a facemask. Meanwhile, the Governors decrees prohibit restaurants from providing on-site dining. This is discriminatory and grossly unfair to those businesses and their employees who now are deprived of the opportunity to make a living. A significant number of these citizens will soon be unable to pay rent, make mortgage payments, cover the utilities and buy food for their families. Unprecedented levels of business closures are wreaking havoc with the markets and imperiling the health of the banking system.

The 10-person limit has virtually closed down on-site religious services, resulting in reduced congregant contributions. These contributions support essential services to low-income persons, including homeless shelters, food banks, and soup kitchens. Many view this limit as an unconstitutional infringement of the First Amendment right to the free exercise of religion.

Sadly, the executive orders force the curtailment of the operation of doctors offices, resulting in postponement of previously scheduled appointments and necessary medical treatments.

The Governors April 1, 2020 communications outline his attempt to micromanage medical and religious institutions and provide him a ready rationale for the utilization of the State Police for enforcement.

To ensure both reasonable public health protections and constitutional liberties, Governor Hogan should immediately revise his executive orders to allow a local government option for a 50-person occupancy limit. I fear that a continuation of this draconian, one-size-fits-all approach will be perceived by the injured citizens of St. Marys County as an affront to their well-being and solid evidence and reasoning to hold the Governor personally accountable for their various losses.

-Cynthia L. Jones

Valley Lee

St. Marys County Commissioner 2010-2013

Read more:
Letter to the Editor - Is our First Amendment infringed by Governor's mandate - Bay Net

Jesus bore it so that you would not have to. If that recent declaration by the Awaken Church of Jonesboro in Arkansas is true, Jesus might also be viewed as the first coronavirus offender, because the Last Supper hosted three disciples too many under the social gathering limits in most states during this crisis. At the time, of course, Roman Governor Pontius Pilate was trying to contain Christianity itself, which now some church leaders accuse American governors of doing. Some churches plan to defy state public health directives by carrying out large Easter services.

The issue is playing out in several states. In Kansas, Democratic Governor Laura Kelly has barred religious gatherings with more than 10 people. That action prompted the Republican controlled state legislature to then vote to rescind the order as an attack on free exercise of religion. Kelly asked her staff to explore all her legal options. Under the Constitution, she is on strong grounds to issue such an order. While untested, the free exercise clause is not a license for religious spreaders in a pandemic.

This may be the most compelling use of the belief that the Constitution is not a suicide pact. I have been critical of that often repeated reference by those who want to ignore fundamental rights. It was originally attributed to Abraham Lincoln after he had violated the Constitution by unilaterally suspending habeas corpus. It is more often attributed to Supreme Court Justice Robert Jackson, without noting that he used the line in one of his most reprehensible opinions, a dissent to the Supreme Court extending protections to a priest arrested for his controversial speech.

These churches would convert the free exercise clause into a suicide pact of sorts. The interpretation not only puts the faithful at risk of infection but also their communities. No constitutional rights are truly absolute. Rights such as free exercise of religion and free speech can be overcome with a sufficiently compelling purpose of state and the least restrictive means of achieving that purpose. There is nothing more compelling than battling a pandemic, and limiting gathering size is the only effective deterrent to the coronavirus spreading until a vaccine can be made available.

However, that has not stopped defiance. In Florida, Republican Governor Ron DeSantis overruled local orders limiting or barring church gatherings. In Arkansas, Pastor Chad Gonzales of Awaken Church defied demands to end services. His declaration of Jesus as a coronavirus victim was based on the belief that Jesus took away every sin and disease on the cross, a particularly powerful message for Easter. Similarly, Pastor Tony Spell of the Life Tabernacle Church in Louisiana was arrested for holding large services. Spell declared his intention to hold large Easter services and insisted that he will never yield to this dictator law. Even more chilling was his statement that true Christians do not mind dying.

If this were a matter of just congregants dying, a constitutional argument could be made for the right to make a self destructive decision based on faith. Adults can forgo simple medicines or transfusions that would save their lives. Likewise, the snake handlers in West Virginia can still engage in that dangerous practice based on a passage in the Bible that the faithful shall take up serpents and the story of Paul surviving a venomous viper. Yet even in practices that kill only the faithful, many states have outlawed snake handling as dangerous to both humans and snakes.

One of the key factors in any constitutional review is whether free exercise of religion is truly being denied, as suggested by these pastors. There is a curtailing of free exercise of religion, including the important element of congregating together in faith, but these orders only temporarily halt one form of faithful expression and do not stop worshiping. Most faiths have moved online during the lockdown. Just as states can force churches to satisfy building or fire codes, they can bar congregating in churches and temples as public health risks in a pandemic like this one.

The objection from these pastors is not frivolous as there is a substantial curtailment in an expression of faith. But this is not an effort to establish a favored state church. It is content neutral on particular faiths impacted by the limitation on crowd size. Their views are not frivolous, but they are still reckless. Free exercise of religion does not allow dangerous acts, even if they are part of a demonstration of faith. A pastor should not be able to disregard public health limits on congregation size to fight a pandemic threat any more than he can disregard a fire safety threat.

The real issue here may be more about state law. Kansas Attorney General Derek Schmidt declared that Kansas statute and the Kansas Constitution bill of rights each forbid the governor from criminalizing participation in worship gatherings by executive order. Kansas law goes beyond the First Amendment in its protections. However, even the Kansas Preservation of Religious Freedom Act allows for a denial of forms of free exercise when based on a compelling state interest and least intrusive means. Schmidt notes that the orders do not stop grocery shopping and other gatherings. But religious services can be supplied online, while grocery shopping for most people continues to take actual visits to the stores.

This Easter will feel different for many of us. Yet the heart of the holiday, both religious and social, has never been stronger or more defining. This pandemic has drawn millions of Americans, believers and nonbelievers, to rediscover faith, family, and other core values. Our separation during this period is part of our sense of obligation to our neighbors as well as to our health care workers in a time of crisis. I am not so sure about Jesus being a coronavirus sufferer, as Awaken Church says, but I know he is a symbol of collective responsibility and of treating others the way you would wish to be treated. This includes protecting others from the spread of a deadly disease, just as you would wish to be protected by them.

The Constitution does not leave the states as mere bystanders forced to watch as pastors such as Tony Spell bus in hundreds of people for church services. Such services are worse than a suicide pact. They are a pact to serve potential spreaders. Spell may declare that true Christians do not mind dying, but their neighbors might mind a great deal.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

Originally posted here:
Why the government can shut down church gatherings during pandemic | TheHill - The Hill

Our COVID-19 crisis has been escalating quickly and with it, the potential collision with the First Amendment over issues involving religious liberty and the right of assembly.

Last month, we thought that stopping the spread of the virus was a matter of washing our hands thoroughly and avoiding touching our faces.

Now, were unable to assemble in groups and many of us are confined to our homes.

Three weeks ago, President Trump dreamed of packed churches on Easter Sunday. At the time, many medical experts found that overly optimistic (or as one put it, not rooted in reality.) Now, with the U.S. approaching 430,000 cases and the death toll nearing 15,000, it seems like an impossibility. Or at least, it should.

But as recently as this past Saturday, President Trump was floating the possibility of making a special allowance for churches to have Easter services. Hes not the only politician to contemplate loosening the reins for the holidays. South Carolina Gov. Henry McMaster recently issued a stay-at-home order but still recommended that Easter services continue. Kansas, Michigan and New Mexico currently exempt worship services from their orders prohibiting gatherings in large groups.

The fact that some government officials think this is worth the risk reflects the push back weve seen from some religious leaders ever since state and local governments started prohibiting large gatherings and shutting down non-essential businesses, including churches, synagogues and other houses of worship.

For example, Louisiana pastor Tony Spell has continued to lead in-person services, calling the closure of his Life Tabernacle Church religious persecution and questioning why retailers were deemed essential but churches not.

We hold our religious rights dear and we are going to assemble no matter what someone says, Spell said in an interview.

But while Spell is framing the states order as a violation of his First Amendment rights, thats not actually the case. Along with being rooted in the publics best interest, its also important to note that the orders restricting the size of gatherings and shutting down non-essential businesses are, at this time, the least restrictive options available to protect public health.

In short, this means theyre almost certainly constitutional but granting an exemption to one of these orders for houses of worship may not be.

The First Amendments Establishment Clause requires that the government treat secular and religious organizations equally, without favoring one over the other.

As Rachel Laser, president and chief executive officer of Americans United for Separation of Church and State, put it, [W]hen health experts and public officials determine that large gatherings must be cancelled for the public good, we must follow their lead and apply these guidelines to secular and religious gatherings equally. The Constitution not only permits it, but demands it. Such restrictions do not violate religious freedom; they ensure religious freedom is not misused in ways that risk peoples lives.

This week I had the pleasure of moderating a (virtual) Freedom Forum panel on religious freedom in the time of COVID-19 and discussing these issues and more with legal experts Richard Foltin and Maggie Garrett, atheist thought leader Mandisa Thomas and seminary-trained religious liberty advocate Charles Watson Jr.

One question from the audience that stood out to me was from an attendee who wondered if there was more to the conversation than just religious freedom versus public health. Did these two values have to be on opposing sides? Werent there things that religious communities could proactively do in service of public health starting with asking their members to stay at home, of course, but going beyond that to encourage them to volunteer their time and monetary resources, donate blood and generally provide assistance to the most vulnerable members of our population? You can find the full webinar on the Freedom Forums YouTube channel.

It was a reminder to me of the crucial charitable function that religious organizations have often served in crisis situations. As Baylor University professors Byron Johnson and Thomas Kidd point out, When it comes to confronting contemporary social turmoil, communities of faith have always played an important role in working toward solutions.

Many religious organizations are doing this right now. Leaders from the National Association of Evangelicals and Christianity Today published a joint statement reminding people that God cannot be consigned to a place.

They added: It is one thing to risk your own life in order to worship together in person; it is quite another to risk the lives of countless others, when so many churches are finding creative and compelling ways to carry on in worship and community from a distance.

The Church of Jesus Christ of Latter Day Saints suspended all services worldwide on March 12 (a lifetime ago in the COVID-19 timeline). Houses of worship have been providing crucial material and social support to those who suddenly find themselves in need of it.

As the pandemic continues, my hope is that these narratives become more common and stories of church leaders risking the lives of their congregants seem like a distant memory.

Read more from the original source:
First Five: Religious communities can fight pandemic but not by gathering - McDowell News