Daily Archives: September 21, 2020

Letters to the Editor: The First Amendment in Rio Rancho – Albuquerque Journal

Posted: September 21, 2020 at 7:03 pm

.......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... ..........


I memorized the Preamble to the Declaration of Independence as a grade school student: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the Pursuit of Happiness. The Preamble has always been a part of my belief in this country and in our democracy.

Therefore, the recent disruption of the Black New Mexico Movement rally in our community by counter-protesters greatly disturbed me. Not because they showed up, because all of us are protected by First Amendment freedom of speech, peaceful assembly and protest.

What disturb and frightens me is the abusive and confrontational manner in which the counter-protestors treated peaceful folks talking about Black Lives Matter and the importance of registering to vote and filling out the Census forms. They accused them of being Antifa rioters, and some counter-protesters openly showed their guns in holsters.

The counter-protesters shouted, Im fighting for my f city and You guys are not f welcome here.

I am disturbed and frightened by the hate that is being shown all across the nation and right here in Rio Rancho. Hate fuels violence, and violence never has a good ending.


What happened to love thy neighbor, the Golden Rule, civility, fairness and discussion? Why is it acceptable in Rio Rancho to scream and shout and make as much noise as possible so that the rally speakers could not be heard? Where is the statement by our mayor and other elected officials about the incivility, inappropriateness and undemocratic behavior from the counter-protestors?

What is happening in a city I have lived in and loved for many years? It breaks my heart.

Pat Stover

Rio Rancho

Read the rest here:
Letters to the Editor: The First Amendment in Rio Rancho - Albuquerque Journal

Posted in First Amendment | Comments Off on Letters to the Editor: The First Amendment in Rio Rancho – Albuquerque Journal

Texas A&M University Introduces First Amendment Website – Texas A&M University Today

Posted: at 7:03 pm

Texas A&M University published a new First Amendment website this month as part of an ongoing effort to emphasize the importance of First Amendment rights on campus under the U.S. Constitution.

Highlights include:

We created this resource primarily for Texas A&M students to learn more about their First Amendment rights and resources on campus and to serve and involve our faculty and staff, said Vice President for Student Affairs Daniel J. Pugh Sr. The U.S. Supreme Court has said that students do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate. It is our responsibility as a public institution of higher education to safeguard these rights for all students, faculty and staff.

Expressive Activity SpotlightThe new website spotlights expressive activity on campus. The free expression of ideas and the right to associate are American values fiercely protected by the Supreme Court. The First Amendment right to free expression and association at public universities such as Texas A&M has been explored in classic case law as a result of court cases related to the student unrest of the 1960s. These constitutional issues are sometimes difficult for the general public to comprehend because there is often an expectation that university administrators can control student speech and control or prevent student association.

This public perception is often grounded in the false belief that students do not have constitutional rights or that they do not enjoy these rights in their roles as college students. Nothing could be further from the truth at public institutions.

Free expression rights are not absolute on campus: Reasonable time, place and manner restrictions apply to free speech and student protest issues when there is a compelling government interest to support their strategies to balance these student rights against the right of others to attend class, move about campus and to avoid disruptions.

Content on the new website will be managed by Texas A&Ms Expressive Activity Committee, a group of 22 staff members that represents several units across the university including the Office of General Counsel, University Police, the College of Medicine, the Office for Diversity, the Division of Marketing and Communications, and the Division of Student Affairs.

Texas A&Ms FIRE Green Light RatingTexas A&M is the first and only university in the state to earn the highest rating for free speech from the Foundation for Individual Rights in Education (FIRE). In cooperation with FIRE, Texas A&M revised a number of speech codes last year to join an elite group of only 45 universities nationwide that have written policies fully in line with the First Amendment. It was then that Texas A&M University President Michael Young said, As one of the nations premier institutions of higher learning, it is critical that Texas A&M affirms our commitment to free speech. A free exchange of ideas is not only a cornerstone of our democracy, it is the surest path to truth, discovery and scholarly advancement.

Texas A&M University Introduces First Amendment Website - Texas A&M University Today

Posted in First Amendment | Comments Off on Texas A&M University Introduces First Amendment Website – Texas A&M University Today

Attorney on first amendment rights of protesters: The government must protect these rights – RochesterFirst

Posted: at 7:03 pm

ROCHESTER, N.Y. (WROC) As protests continue over the death of Daniel Prude, the first amendment continues to be a topic of discussion. Freedom of speech and assembly in particular have been tested the past couple weeks.

Attorney Mike Burger said the Bill of Rights is at the core of constitutional rights given to each and every citizen of our country. But he said legally, these things can become murky.

Burger said exercising the rights protected under the first amendment is one of the few times citizens rights trump the government.

When people assemble and they want to protest, particularly here in Rochester which has a long tradition of this sort of activity, the government needs to stand shoulder to shoulder with them and protect those rights, said Burger.

However, he said there are circumstances where the government can override those rights but it needs compelling interest to do so.

It cant sweep broadly and say, well we dont want any unrest so were gonna have a curfew and keep everyone inside, that wouldnt be America anymore.

Protesters have said the police are taking a more aggressive path when they could be taking a more peaceful one. Burger said it becomes a grey area when theres violence on either side.

From the police side they may not know where a water bottle comes from, they may find that after a few episodes of violence that the entire crowd being there is making it impossible to locate the people who are engaging in a crime. It becomes a difficult question how far should you go? It seems on the nights where there has been less police interaction there have been fewer claims of violence, but is that correlation or causation?

He said theyre walking a fine line between security and freedom.

If were all shopping in Wegmans and a few people engage in shoplifting, grabbing everyone in Wegmans or pepper spraying the entire store is probably not the right reaction to that, unless we all seem to be acting in concert to help the shoplifters.

Burger said while the government has a responsibility to make sure the protests go smoothly, citizens have the right to free speech in many forms including yelling, screaming, and singing.

View post:
Attorney on first amendment rights of protesters: The government must protect these rights - RochesterFirst

Posted in First Amendment | Comments Off on Attorney on first amendment rights of protesters: The government must protect these rights – RochesterFirst

Polk County GOP chairperson gathering signatures in support of a Second Amendment Designated County – Grand Forks Herald

Posted: at 7:03 pm

Sherry Hoaas, the chairperson of the Polk County GOP, said that, in an anxious, unsettled year, a Polk County Second Amendment Designated County resolution would aim to express a commitment to the U.S. Constitution. The resolution wouldn't do anything by itself, she said - but should the question of Second Amendment rights ever arise in Polk County, the framework laid by the county commission's vote would be there.

"Everybody gets a little nervous, because it just seems like the Constitution is getting chipped away at," Hoaas said. "And we very much want to support the entire Constitution."

Second Amendment Designated Counties, more commonly known as Second Amendment Sanctuary Counties, began gaining traction early this year after representatives of the Minnesota Gun Owners Caucus began urging Minnesotans to stand against gun control laws commonly known as red flag laws.

Red flag laws give law enforcement and concerned relatives the means to petition a court to have guns temporarily removed from a person deemed to be a risk to themselves or others. Such a law passed the Minnesota House of Representatives early this spring, but stalled in the Republican-controlled Senate in March.

By passing Second Amendment Sanctuary resolutions, county commissioners essentially state their intent to refuse to use local resources to restrict the Second Amendment, including enforcement of red flag laws.

Roseau County became the first Second Amendment Sanctuary County on Feb. 12. According to the Minnesota Gun Caucus website, Roseau County was followed by eight other counties in passing similar resolutions. The website states that resolutions have been introduced in five additional counties, and advocates for the Second Amendment are organizing in an additional 35 counties.

Hoaas said such a resolution in Polk County has been in the works since the spring, but like so much else, it was derailed by the pandemic. In the months since, with the George Floyd protests and talk of defunding the Minneapolis Police Department, she said she believed it was time to revisit the Second Amendment Dedicated County petition.

"Law and order is what makes this country," Hoaas said. "Call that a partisan statement or not, it certainly shouldn't be. We live here for our freedom and our liberty. If you start chipping away and taking away the Second Amendment, when the First Amendment has been challenged, with freedom of speech, it feels like people can't say anything, you've gotten to a place where it's kind of getting ugly."

The outdoor event this weekend in Mentor gave them the opportunity to collect signatures for the petition, which Hoaas said she intends to present to the county commissioners to show support for the movement in Polk County.

She said she hadn't had the chance to count how many signatures the petition received over the weekend, but she estimated it was about 100.

The petition has not yet been put on any county commission agenda.

Here is the original post:
Polk County GOP chairperson gathering signatures in support of a Second Amendment Designated County - Grand Forks Herald

Posted in First Amendment | Comments Off on Polk County GOP chairperson gathering signatures in support of a Second Amendment Designated County – Grand Forks Herald

Health officials urge people who attended Trump rally on Saturday to get tested for coronavirus – The Fayetteville Observer

Posted: at 7:03 pm

John Henderson|The Fayetteville Observer

An estimated 5,600 people attended President DonaldTrump's campaign rally in Fayetteville on Saturday, and a majority were not wearing masks or social distancing during the president's speech.

Thatconcernshealth officials, who are urging people who attended the event to be tested for the coronavirus.

Fire Marshal T.J. McLamb said Monday that fire officials counted about 5,600 people coming through the gate at Fayetteville Regional Airport to attend the rally.

More: Our View: Trump Fayetteville rally dives into Supreme Court fight

Fayetteville Observer reporters and photographers at the event estimated that about one-third of those who attended werewearing masks. The Trump campaign passed out masks topeople as they entered the event.

Jennifer Green, Cumberland County's public health director, said Monday in an emailed response to questions thatcrowded settings like the rally can make it difficult to practice social distancingand can increase the risk for transmission of COVID-19.

This is especially true for individuals who are in close contact within six feet for prolonged periods of times and when those individuals dont live in your household. The risk for transmission can increase when singing and shouting occurs, especially if people are not wearing masks.

She added that contact tracing after large events like this can be difficult if someone tests positive because individuals may not be able to readily identify those who were close to them at the event.

We appreciate those who attended the event and wore their face covering and practiced social distancing,she said.

Green said Gov.Roy Coopers Executive Order 163 limits mass gatherings to 25 people indoors and 50 people outdoors but allows exemptions for individuals to exercise their First Amendment rights, including political rallies, but strongly urges exempted groups and individuals to avoid holding mass gatherings.

We strongly recommend organizers of large events limit their crowd sizes and engage attendees in other ways, Green said. Weve seen examples from around the country where large gatherings can turn into super spreader events that impact individuals who did not attend the event. There is still accelerated community spread in Cumberland County. Event planners should continue to take precautions to prevent spread among attendees.'

As of Monday afternoon, there have been 5,079 coronavirus cases in Cumberland County and 79 deaths.

Were still among the lowest in the surrounding region, she said.

Of the people who have died in the county, 80%are age 65 or older,70%are male,57% are African-Americansand 51%have been in congregate living settings.

Green said itstoo early to tell what the impact of the rally will have on theoverall numbers.

Our contact tracing team asks individuals about their attendance at large gatherings during their case investigation interviews,Green said. We encourage anyone (who has) tested positive after attending the rally to communicate this with our contact tracing team. This will help us to identify any spike in cases as a result of the rally.

Green said scientific evidence indicates wearing a face covering greatly reduces the risk for transmitting COVID-19.

However, face coverings are not a replacement for physical distancing. Individuals should wear their face mask and socially distance themselves from others and wash their hands. Doing all three significantly reduces risk. However, these events are not risk-free, even when practicing your Ws. There will always be some associated risk when interacting with other individuals.

She said testing is available and encouraged it for individuals who have attended protests, ralliesor other mass gatherings where it is difficult to practice effective social distancing.

A spokeswoman for the N.C. Department of Health and Human Services also said in a statement Monday that large rallies like those the Trump campaign is holding in the state carry health risks.

While activities constituting the exercise of First Amendment rights are exempt from the requirements of the Governors Executive Orders, large gatherings increase the risk of spreading COVID-19, said Kelly Haight Connor, communications manager for the N.C. Department of Health and Human Services.

The Trump campaign took temperature checks of people entering the eventand passed out free masks and hand sanitizer.

A sign with a legal disclaimer was also posted atan entrance gate that stated:You understand and expressly acknowledge that an inherent risk of exposure to COVID-19 exists in any public place where people are present.

Jackie Taylor, the chairwoman of the Cumberland County Republican Party, said she was ordered by Trump campaign officials to wear a mask at the rally. She was among the group of people that could be seen behind the president on television.

But thousands of others in the audience were not wearing masks.

Taylor said it should be an individual's choice whether to wear a mask, especially since there is debate about whether they are effective.

Most conservatives feel that it is our choice, she said. Thats how I feel. I didwear one because I really wanted to come within five feet of President Trump. But I hate wearing masks, and so domany other people. Lets be honest, we have been told at the beginning that masks dont work.

She said as a 40-year-old she is not worried about contracting coronavirus, but for people who are worried, they have the right to wear a mask or not attend the event.

Conservatives understand that, she said. They try to be respectful,especially in a big crowd. I think anybody that was worried had a mask on, as it should be. If you are worried, don't be there. If you are at risk, don't be there. Wear a mask. Take precautions.

She said it is also unrealistic to think that the staff at the rally could make sure that everyone was wearing a mask.

They had a lot of staff there tons of volunteers but there will never be enough people there to make sure everyone wears their mask and keeps it on, she said.

With the freedom that we have of making choices for our own bodies not everybody is going to comply," Taylor said. But I did see quite a lot of mask-wearers, and not just in my section. I dont think Ive ever seen that many people wearing masks, honestly.

Sharon Johnson, chairwoman of the Cumberland County Democratic Party, said it didnt surprise her that only about a third of the people at the event were wearing masks, which she said is concerning.

Then the other two-thirds are clearly in a position to be spreading the virus, she said Monday. Well never get over this if we dont do what the health professionals tell us to do.

She said she did not believe that Trump wasgaining a competitive advantage over Democratic candidate Joe Biden by continuing to hold these large rallies and Biden not holding them.

I dont think were at a disadvantage, she said. Our candidate Vice President Biden is very prudent. We are engaging in limited activities, but they are (being held with) the interest of safety for all.

She said Biden doesnt need to go tit for tat with Trump in holding large rallies to run a successful campaign.

This is not the first time Trump has held a rally in North Carolina where a large number of people didnt wear masks.

Earlier this month, Trump spoke at Smith Reynolds Airport in Winston-Salem. According to press reports, thousands of supporters crammed together without the 6 feet of social distancing the White House itself has recommended.

Airport Director Mark Davidson told the Winston-Salem Journal somewhere between 7,000 to 9,000 people attended the event, though Trump claimed in his speech to have drawn a crowd of 15,000.

Staff writer John Henderson can be reached at jhenderson@fayobserver.com.

See more here:
Health officials urge people who attended Trump rally on Saturday to get tested for coronavirus - The Fayetteville Observer

Posted in First Amendment | Comments Off on Health officials urge people who attended Trump rally on Saturday to get tested for coronavirus – The Fayetteville Observer

Potsdam ‘toilet gardens’ will stay, for now, as federal judge grants injunction in toilet case – NNY360

Posted: at 7:03 pm

POTSDAM The toilet gardens will stay, at least for now, a judge ruled Monday.

A federal court has ordered that the village may not remove Frederick Hank Robars toilet gardens until his lawsuit is settled.

Senior U.S. District Court Judge Lawrence E. Kahn, Albany, granted Mr. Robars request for a preliminary injunction Monday, requiring the village to cease from removing any items, including his infamous porcelain planters, from all seven of his properties across the village. The judge, in a 42-page decision, denied a request by Mr. Robars attorneys to officially declare that his porcelain gardens are not junk, as defined by village code.

Mr. Robar is immensely relieved to know that his art is protected for the immediate future. The Courts decision is thoughtful and comprehensive. As the Court conclusively found, Mr. Robars art is protected by the First Amendment and Mr. Robar is likely to succeed in this lawsuit, Jon E. Crain, an attorney for Mr. Robar from Whiteman, Osterman and Hanna LLP, Albany, said in a statement Monday.

Last month, Mr. Robar sued the village claiming officials, in ordering him to remove the toilet gardens, were violating his First Amendment and Fourteenth Amendment rights, as well as the Visual Artists Rights Act of 1990. He claims the toilet gardens are protected under his rights to free speech as a form of protest.

The Visual Artists Rights Act grants artists the rights to prevent intentional modification to their art and the destruction of their work of recognized stature, such as the toilet gardens.

In July, the village passed a resolution ordering Mr. Robar to remove all bathroom fixtures, including toilets, from his properties around the village before Sept. 1, though both parties agreed not to take action until the judge granted a formal order on the matter.

On Sept. 7, attorneys for the village moved to request that the court dismiss the lawsuit in its entirety, claiming the case lacks merit to go to trial. The court has preliminarily scheduled a hearing on that motion for Oct. 16.

In late 2018, the village passed a junk storage law, aimed at allowing the village to specifically address properties that are unsightly. The law specifically defined bathroom fixtures, including toilets. Earlier this year, the village code enforcement officer issued Mr. Robar several tickets. He eventually opted, as allowed under the junk storage law, for a public hearing over the matter. In July, the village Board of Trustees passed a resolution ordering he remove all the bathroom fixtures from his properties.

The matter is the latest in a years-long battle between Mr. Robar and the village, dating back to 2005. After being denied a zoning variance on one of his properties, Mr. Robar began displaying toilets as a form of protest. Several previous attempts at forcing Mr. Robar to remove his toilet gardens have been unsuccessful.

A large portion of Mr. Robars suit hinges on claims that the villages adoption of a junk storage law was selectively enforced against his junk art and not others living in the village. The judge wrote that Mr. Robars only evidence of such is nothing more than his sworn statement that he isnt personally aware of any such instances in which the junk storage law has been enforced against other residents who publicly display repurposed junk.

Accordingly, based on the evidence Plaintiff has presented at this time, the Court finds that he has not met his burden to show that the law has been selectively enforced against him, Judge Kahn wrote.

Mr. Robar also said the adoption of the junk storage law was motivated by the villages ill feelings or animus, as stated in the judges decision toward the toilet gardens. The court found there are several facts to undermine this claim as nearly 15 years separate Mr. Robars initial creation of the gardens and the present enforcement.

The junk storage law classifies mobile homes and motor vehicles as junk, which, the court said, suggests the village Board of Trustees thought the law through and considered its application to others in the village besides Mr. Robar.

Another point of contention in Mr. Robars initial complaint is that the village is violating the Visual Arts Rights Act because, as Mr. Robars argues, the village is threatening the destruction of his toilet gardens by their removal a violation of that law. The court found that the village did not threaten to destroy the gardens.

In his reply, Mr. Robar notes the gardens are not site-specific and they can be moved and installed in various locations the gardens can accomplish their artistic message and political protest as long as they are publicly visible, Mr. Robar said.

Judge Kahn went on to further explain that Mr. Robar contradicted himself in his reply as he does not suggest the relocation of the gardens would necessarily damage them and agrees they can be relocated. The court found the relocation cannot in itself be considered destruction.

Mr. Robar also sought a declaration of relief which the court denied that the gardens are not junk, as defined by the junk storage law. Mr. Robar said the gardens are not junk because they are not worn out or discarded material, but instead have their place. He also said the toilets are not of little or no value and are not junk appliance, because the removal of their functionality has transformed them into non-toilets.

The Court respectfully disagrees, Judge Kahn wrote, the porcelain gardens are toilets, albeit ones brimming with constitutionally protected expression.

Visit link:
Potsdam 'toilet gardens' will stay, for now, as federal judge grants injunction in toilet case - NNY360

Posted in First Amendment | Comments Off on Potsdam ‘toilet gardens’ will stay, for now, as federal judge grants injunction in toilet case – NNY360

This Week at The Ninth: Informational Injury and Union Dues – JD Supra

Posted: at 7:03 pm

This week, we examine one Ninth Circuit decision exploring the extent to which the deprivation of information and statutorily-conferred powers can satisfy Article IIIs injury-in-fact requirement, and a second declining to extend the Supreme Courts decision in Janus to former union-members asserting First Amendment right not to pay agreed-upon dues.

SOUTHCENTRAL FOUNDATION v. ANTHCThe Court holds that a board of directors alleged delegation of decision-making authority to an executive committee, and a confidentiality policy that allegedly restricted the flow of information to board members, sufficed to confer Article III standing under a statute entitling plaintiff to a voting representative on the board of directors.

Panel: Judges Gould, Bea, and Murguia, with Judge Murguia writing the opinion.

Key highlight: Because we conclude that Section 325 [of the Department of the Interior and Related Agencies Appropriations Act of 1998] conferred governance and participation rights to [plaintiff], which necessarily includes an entitlement to information necessary to effectively exercise those rights, we reverse the district courts dismissal of [plaintiff]s complaint for lack of Article III standing.

Background: Congress created the Alaska Native Tribal Health Consortium (the Consortium) under Section 325 of the Department of the Interior and Related Agencies Appropriation Act of 1998 to provide health services at the Alaska Native Medical Center in Anchorage, Alaska. Southcentral Foundation (Southcentral) is a nonprofit regional tribal health organization that provides health care to some 65,000 Alaska Natives as a member of the Consortium. Section 325 provides in relevant part that the Consortium shall be governed by a 15-member Board of Directors, which shall be composed of one representative of each of 13 regional tribal health organizations, including Southcentral, and two tribal representatives. The statute also provides that [e]ach member of the Board of Directors shall be entitled to cast one vote. Decisions of the Board of Directors shall be made by consensus whenever possible, and by majority vote in the event that no consensus can be reached.

Southcentral alleged that the Consortiums board, over Southcentrals objection, created an executive committee authorized to take actions without ratification by the full board. The executive committee then allegedly approved lucrative employment contracts for Consortium executives without disclosing the terms of those contracts to the full board. A few years later, the board also adopted a strict confidentiality policy that allegedly gave unidentified Consortium personnel absolute discretion to restrict information from being shared even with the Board of Directors, with a rebuttable presumption against disclosure. Southcentral sought declaratory relief that the Consortium violated Section 325 when it: (1) formed the Executive Committee and delegated the authority of the full board, and (2) erected informational barriers to board member decision-making. The district court dismissed the suit, concluding that Southcentral failed to allege an injury in fact sufficient to confer Article III standing.

Result: The Ninth Circuit reversed. The Court began by laying out the now-familiar requirements for Article III injury-in-fact: to confer standing, an injury must be particularized (affect[ing] the plaintiff in a personal and individual way) and concrete (de facto; that is, it must actually exist.). Applying that standard, the Court first addressed Southcentrals executive committee claim. The statutory language conferring governance and participation rights on representatives of each member health organization made clear that Southcentrals alleged injury was particularized and concrete, the Court reasoned, because the creation of the executive committee deprived Southcentral of precisely those express statutory powers. The Court was not convinced by the Consortiums argument that Section 325s participation rights only applied to providing health care, not management decisions, or its argument that Section 325 grants governance rights only to individual directors, rather than the organizations they represent. Because Congress endowed each specified regional health entity with the right to have a representative on the Board that stands in the shoes of the designating entity by acting on its behalf, Southcentral had alleged sufficient injury to its statutory decision-making power.

As for the confidentiality policy, the Court reached a similar conclusion. Because the Consortiums policy allegedly restricted information necessary to make decisions called for by the statute, the Court said Southcentral had adequately alleged Article III injury. In so holding, the Court rejected the Consortiums argument that to satisfy Article III, an alleged informational injury must stem from an express statutory right to receive such information. Making informed decisions requires having information, the Court reasoned. Because Southcentrals informational injury was inextricably tied to its interest in exercising its governance and participation rights under the statute, the Court concluded that Southcentral had alleged sufficient injury-in-fact. The case was remanded to the trial court for further proceedings.

BELGAU v. INSLEEThe Court holds that former union members who had agreed to allow their employer, the State of Washington, to deduct union dues even if they terminated their union membership had no First Amendment claim when that agreement was enforced.

Panel: Judges McKeown, Christen, and Harpool (W.D. Mo.), with Judge McKeown writing the opinion.

Key Highlight: We join the swelling chorus of courts recognizing that Janus does not extend a First Amendment right to avoid paying union dues.

Background: Plaintiffs were Washington state employees who had joined a union (WSFE) shortly after starting work. They had signed contracts allowing the state to deduct union dues from their paychecks. They subsequently agreed to revised contracts making their consent to the deduction of such dues irrevocable for one year.

In Janus v. American Federation of State, County, and Muni Employees, 138 S. Ct. 2448 (2018), the Supreme Court overturned longstanding precedent and held that public employers cannot automatically deduct union fees from the paycheck of nonunion employees because such deductions compel nonmembers to subsidize union speech. After Janus was issued, the plaintiffs notified their union that they no longer wanted to be members, and the union terminated their memberships. The state, however, continued to deduct their union dues until the irrevocable one-year terms for dues payment had expired.

In response, the plaintiffs filed a putative class action against various state officials and the union, pressing First Amendment claims. The district court granted summary judgment to the defendants.

Result: The Ninth Circuit affirmed. The Court began by holding that the plaintiffs constitutional claims against the union failed for lack of state action. First, the Court reasoned, the plaintiffs could not establish that the claimed constitutional deprivation resulted from the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person from whom the State is responsible; rather, the source of their harm was their contract with the union, not any state statute or policy. Second, and in any event, the plaintiffs also could not establish that the party charged with the deprivation could be described in all fairness as a state actor: the union was plainly a private entity, and it had not been coerced or overseen by the state in shaping or entering the challenged agreements, nor had it acted in concert with the state. As the Court declared, Providing a machinery for implement the private agreement by performing an administrative task does not render Washington and the [union] joint actors.

The Court next turned to the plaintiffs claims against the state, holding that these likewise failed. The Court first addressed whether it had jurisdiction to consider this issue, given that the plaintiffs had sought only prospective relief and the state was no longer deducting fees from their paychecks. It determined that these claims satisfied the capable of repetition yet evading review exception to mootness, as the one-year period of fees-deductions was too short to allow full litigation, and other similarly situated employees might confront the same issue.

On the merits, the Court rejected the plaintiffs contention that the state had violated their First Amendment rights. As the Court explained, plaintiffs complained of obligations that were self-imposed rather than imposed by the State, and the First Amendment provides [no] right to disregard promises that would otherwise be enforced under state law. Although Janus had condemned the practice of automatically deducting agency fees from nonmembers who were not asked and not required to consent before the fees are deducted, the plaintiffs here had experienced no such compulsion. They had voluntarily joined the union and accepted the benefits of membership, and thus had agreed to bear the financial burdens of membership. The First Amendment, the Court held, does not prevent the State from honoring that agreement.

[View source.]

Here is the original post:
This Week at The Ninth: Informational Injury and Union Dues - JD Supra

Posted in First Amendment | Comments Off on This Week at The Ninth: Informational Injury and Union Dues – JD Supra

Even with a Recent Lag, Special Interest PACs Enjoy Big Fundraising Edge Over Parties – InsiderNJ

Posted: at 7:02 pm

More evidence of the decline of the political party system in New Jersey comes from statistics published recently by the Election Law Enforcement Commission (ELEC) that compared fundraising by parties and special interest PACs[1] during the first six months of 2010.

The first six months of 2020 witnessed the big six party entities, which include the two state parties and four legislative leadership committees, raising $1.3 million. While the pandemic undoubtedly took its toll, nevertheless this amount continued the downward trend in party financial activity and is the least raised since 2007.

County party organizations continued their downward slide as well, raising $1.955 million during the first two quarters of 2020, their lowest fundraising total in 20 years.

Compare their combined total of $3.3 million to the fundraising haul reported by 235 union, business, regulated industry, trade association, and professional association PACs for the first half of 2020.

The special interest PACs raised $22.3 million during this period of time, though their financial activity did slow during the second quarter, most likely due to COVID-19.

The $3.3 million combined fundraising total reported by the state and county party entities amounted to 15 percent of the money raised by the special interest PACs during the same period of time.

Looking back a decade ago to 2010, parties also were at a disadvantage even then. But the gap wasnt nearly as large.

The Big Six and county parties raised $4.2 million during the first six months of 2010 versus $12.2 million by special interest PACs. Party fundraising represented 35 percent of the PAC fundraising.

Party Versus PAC Fundraising First Six Months- 2010 versus 2010

It is important to note as well that this ratio of PAC fundraising to party fundraising does not even factor in financial activity of independent spending by special interest groups, which has dwarfed party activity during the last decade.

Unlike traditional political action committees, which are subject to contribution limits and are required to disclose all their contributions and spending, independent spending committees face no such limits and often avoid public disclosure rules.

Independent groups, for instance, spent $48 million during the 2017 Assembly and State Senate contest and about $50 million in the 2018 congressional election in New Jersey. During the 12-year period, 2005-2017, their spending increased exponentially by 11,458 percent just in state elections.

The undeniable message to voters of these statistics, repeatedly chronicled in columns, white papers and analytical reports released by ELEC, is that the driving force in New Jersey elections is no longer political parties, or even the candidates themselves.

Instead, it is conventional PACs and independent groups run by special interests.

While the First Amendment protects participation by interest groups, which is welcome, the current situation by which special interests are the dominant influence in elections does not bode well for democracy.

Some would say, perhaps rightly, that the genie is out of the bottle, and that trying to return parties and candidates to their preeminence is a futile goal.

But the history of campaign finance law suggests otherwise. Changes to campaign finance laws have redirected the flow of money before in New Jersey and transformed its politics. It can do so again.

A recent column in Insidernj,com entitled, NJ Political Parties Have Been Down Before. They Can Come Back Again, traced reform in New Jersey and its connection to transforming electoral politics in the State.

The most recent example was the 2006 pay-to-play reforms. These reforms undermined a robust party system that was brought about by the 1993 Campaign Finance Reforms. The 2006 reforms helped usher in the current period of weak parties and special interest independent group dominance.

Bipartisan proposals put forth by ELEC would try to restore balance within the electoral system by strengthening political parties and offsetting the influence of special interest independent groups.

Commission recommendations include: election-related disclosure by independent groups, including disclosure of donations; including PACs under pay-to-play law and excluding parties from the law; allowing parties to participate in gubernatorial elections; raising general contribution limits for parties; and, mandating that contractors annually disclose their contributions to PACs and independent groups.

Though not a commission proposal, tax credits for contributions to parties and candidates may help as well.

Political parties have always been an integral part of politics in America and restoring their strength and vitality would not only bring them back into the flow of money but also into the flow of politics and elections in New Jersey.

Jeff Brindle is the Executive Director of the New Jersey Election Law Enforcement Commission.

The opinions presented here are his own and not necessarily those of the Commission.

(Visited 70 times, 70 visits today)

Even with a Recent Lag, Special Interest PACs Enjoy Big Fundraising Edge Over Parties - InsiderNJ

Posted in First Amendment | Comments Off on Even with a Recent Lag, Special Interest PACs Enjoy Big Fundraising Edge Over Parties – InsiderNJ

Readers respond: Racists coming out of the woodwork – oregonlive.com

Posted: at 7:02 pm

I was recently in line for gas at a Costco store in Vancouver. In front of me was a car with a sign that cursed George Floyd, Black Lives Matter and anyone who was put off by the sign.

What is happening? This is not OK.

The ugliness of our current times is rearing its monstrous head. Its hateful, mean and divisive.

Im a Black woman, born and raised in Vancouver who graduated from Fort Vancouver High School in the 1970s. I never encountered the hate and overt racism I witness now. Obviously, racists existed then behind closed doors and out of my hearing range. They stayed relatively hidden until this current administration apparently empowered them to come out of the woodwork and openly express themselves.

I get the First Amendment and freedom of speech. If someone wants to post a sign like this sign on their private property in their yard I guess they can, although I prefer they didnt.

However, why is it permissible to drive around with prominent profane signage publicly displayed on a vehicle for all to see? Washington and Oregon dont allow profanity on vanity plates. Its offensive and its not OK.

Rita Griffin Deiz, Vancouver

Visit link:
Readers respond: Racists coming out of the woodwork - oregonlive.com

Posted in First Amendment | Comments Off on Readers respond: Racists coming out of the woodwork – oregonlive.com

WeChat and TikTok Sanctions Not to Came Into Effect Yesterday – JD Supra

Posted: at 7:02 pm

Late last week, a Magistrate Judge for the U.S. District Court for the Northern District of California issued an order granting a motion for a nationwide preliminary injunction forbidding implementation of sanctions against Tencent Holdings Ltd. and its mobile application WeChat as described in our prior alert found here. Based on this preliminary injunction, the prohibitions regarding WeChat will not go into effect at 11:59pm EDT Sunday evening. The judges ruling is predicated on her belief that the plaintiffs have shown serious questions going to the merits of the plaintiffs First Amendment claim, that the balance of hardships tips in the plaintiffs' favor, and that the plaintiffs have established the other elements for preliminary-injunctive relief. The government is expected to challenge the order.

Separately, the Department of Commerce has delayed implementation of the first phase of the TikTok sanctions (prohibiting U.S. online mobile application stores from selling the TikTok application) until no earlier than September 27, 2020 at 11:59 p.m. EDT. As the U.S. government has reportedly, in principle, approved arrangements to mitigate national security concerns regarding TikTok operations in the United States, it seem likely that the TikTok sanctions will never become effective.

Read the original:
WeChat and TikTok Sanctions Not to Came Into Effect Yesterday - JD Supra

Posted in First Amendment | Comments Off on WeChat and TikTok Sanctions Not to Came Into Effect Yesterday – JD Supra