Monthly Archives: February 2022

The First Amendment has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause. The Establishment clause prohibits the government from "establishing" a religion. The precise definition of "establishment" is unclear. Historically, it meant prohibiting state-sponsored churches, such as the Church of England.

Today, what constitutes an "establishment of religion" is often governed under the three-part test set forth by the U.S. Supreme Court inLemon v. Kurtzman, 403 U.S. 602 (1971). Under the "Lemon" test, government can assist religion only if (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state.

The Free Exercise Clause protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of a "public morals" or a "compelling" governmental interest. For instance, inPrince v. Massachusetts, 321 U.S. 158 (1944), the Supreme Court held that a state could force the inoculation of children whose parents would not allow such action for religious reasons. The Court held that the state had an overriding interest in protecting public health and safety.

Sometimes the Establishment Clause and the Free Exercise Clause come into conflict. The federal courts help to resolve such conflicts, with the Supreme Court being the ultimate arbiter.

Check outsimilar casesrelated toEngel v. Vitalethat deal with religion in schools and the Establishment Clause of the First Amendment.

Read more here:
First Amendment and Religion - United States Courts

Why the founding fathers protected the right to protest

The First Amendment protects Americans' right to protest and the right to political dissent.Video provided by Newsy

Newslook

The First Amendment is a mere 45words. Butit's still giving lawmakers and judges fits 227 years after its adoption.

The government can'testablish religion,but federal, state and municipal officials can open meetings with a prayer.

The government can't block religious exercise, but it's tryingtoban travelers from majority-Muslim countries in the name of national security.

It can't restrictfree speech not even hate speech or flag-burning or protests ofmilitary funerals. But don't try shouting "Fire!" in a theater or threatening folkson Facebook.

It can't muzzle the media, unless it concerns outright lies made with malicious intent.

And peaceful protests areprotected,but that doesn't mean the Secret Service can't push you around a little in order to protect the president.

Sound confusing?Here's your guide to the First Amendment, circa 2018:

If white nationalists and neo-Nazis can march through the college town of Charlottesville, Va., and win backing from the American Civil Liberties Union, the rights of demonstrators are in safe hands.

What remains in doubt: whether such protests can be accompanied by displays of weapons, even in states that permit firearms to be carried in public. That raises the potential for violence, which public officials have the authority to prevent.

In a series of cases dating back to the 1960s, the Supreme Court has struck down restrictions on so-called "hate speech" unless it specifically incites violence or is intended to do so.

The First Amendment, the justices have said, protected neo-Nazis seeking to march through heavily Jewish Skokie, Ill., in 1977. It protected a U.S. flag burner from Texas in 1989, three cross burners from Virginia in 2003 and homophobic funeral protesters in 2011.

Even symbols of intimidation, such as torches carried by some marchers in Charlottesville, are protected unless they have specific targets. Justice Clarence Thomas dissented inthe cross-burningcase, reasoning that "those who hate cannot terrorize and intimidate," but he was on the losing end of an 8-1 vote.

If right-wing demonstratorsare protected by the First Amendment, so too are right-wing speakers. The Supreme Court made that clear in 1969 when itprotected a Ku Klux Klan member decrying Jews and blacks in Ohiobecause he did not pose an imminent threat.

Richard Spencer, a white nationalist who hastraveledthe country on a controversial "alt-right" speaking tour, is but the most recent example. He'sbeen allowed to speak, along with counter-demonstrators aligned with aleft-wing coalition known as Antifa.

Richard Spencer is reportedly banned from over 26 European nations

Poland's state-run news agency reports Polish authorities banned Spencer from the Schengen Area, which is comprised of 26 European countries.Video provided by Newsy

Newslook

Spencer is better off giving sparsely attended speeches and facing opponents in Florida, Michigan and Virginiathan he would be overseas. He's been banned from visiting large portions of Europe and Great Britain by government officials who said his speeches fosterhatred.Under the First Amendment, those banswould not stand.

The American free speech tradition holds unequivocally that hate speech is protected, unless it is intended to and likely to incite imminent violence, says Jeffrey Rosen, president of the National Constitution Center in Philadelphia.

Adds Justice Stephen Breyer: "It's there for people whose speech you don't like."

Speech isn't restricted to the spoken or written word. The First Amendment also protects movies and TV, art and music, yard signs and video games, clothing and accessories.

The Supreme Court has ruled in favor of video games depicting the slaughter of animals. It has upheld derogatory trademarks,such as those promoting The Slants, an Asian-American rock band. When a Pennsylvania school district tried to stop students from wearing breastcancer awareness bracelets reading "I (Heart) Boobies," the court refused even to hear the case.

But as usual, there are exceptions. When the speaker is the government, the court has allowed for censorship such as when Texas refused to permit specialty license plates displaying the Confederate flag. The justices reasoned that the government, not the motorist, was doing the talking.

The First Amendment gives you the right to speak out as well as the right "to refrain from speaking at all," Chief Justice Warren Burger wrote in 1977. That signaled a win for a New Hampshire couple who covered up part of their home state's motto, "Live Free or Die," on license plates.

The doctrine is up for grabs in three major Supreme Court cases this term. It appears likely the justices will rule that an Illinois state employee cannot be compelled to contribute to his local union. They also seem inclined to say that California cannot force anti-abortion pregnancy centers to informclients where they can get an abortion.

The third case is a closer call: Must a deeply religious Colorado baker use his creative skills to bake a cake for a same-sex couple's wedding? Here the court seems split.

"The case isn't about same-sex marriage, ultimately. It isn't about religion, ultimately," says Jeremy Tedesco, a lawyer with Alliance Defending Freedom, which represents Jack Phillips. "Its about this broader right to free speech, the right to be free of compelled speech.

Baker: Why I won't make wedding cakes for gay couples

Jack Phillips, a suburban Denver cake shop owner, tells USA TODAY's Richard Wolf that he's fighting an order that would compel him to make cakes for the weddings of gay couples because of religious objections.

Facebook, Twitter and other social media sites can police their own websites to control what's posted. But under the First Amendment, the government has no such right.

Thus did the Supreme Court rule that a North Carolina law criminalizing social media use by sex offenders violated the First Amendment.

The justices also gave a temporary reprieve to an angry, self-styled rapper who rattled his wife, co-workers and others on Facebook. Phrases such as "Hell hath no fury like a crazy man in a kindergarten class" are criminal only if intended as a threat, they ruled, and sent the case back to a lower court, which ruled against him on that basis.

If you want to put free speech rights to work in politics, you're in luck. The Supreme Courtequates campaign spending with speech.

Say you're a wealthy individual, or you run a corporation that wants to spend unlimited amounts in this year's elections. As long as you do not coordinate your spending with a candidate or political committee, you're home free.

And while there are anti-corruption limits on how muchyou can donate directly to a candidate, committee or political party, the court recently ditched restrictionson the total amount you can apportion among those recipients. That means you can give to as many campaigns as you like.

Your First Amendment rightto exercise your religion depends on what other rights it bumps up against. That's why it's a frequent conundrum in court.

When the arts and crafts chain Hobby Lobby wanted out from Obamacare's requirement that employers offer free coverage of contraceptives, the Supreme Court ruled narrowly in its favor. The corporation's First Amendment right "protects the religious liberty of the humans who own and control" it, Justice Samuel Alito said.

Supreme Court rules in favor of Hobby Lobby

Supreme Court says employers with religious objections can refuse to pay for contraception. (June 30)

AP

And when a Lutheran church in Missouri was denied state funds to resurface its playground, the high court said the separation of church and state does not apply to purely secular activities such as swings and slides.

But religious claims are not a slam dunk, as Phillips, the Colorado baker, may discover. At least four justices possibly five are likely to say his speech and religious beliefs must take a back seat topublic accommodations laws requiring that merchants serve all customers.

This is another area where more than two centuries haven't reduced passions on both sides, often leaving courts divided.

Public schools cannot lead children in prayer, a prohibition that has been extended in recent years to graduations and football games. But Congress, state legislatures and local governments can open their sessions with a prayer, provided the audience is not coerced to participate.

The line between what's OK and what's not is even thinner than that. On the same day in 2005, the Supreme Court ruled against displaying the Ten Commandments inside a county courthouse but said it could be memorialized outdoors on statehouse grounds.

Trump: Current Libel Laws a Sham and Disgrace

Addressing his first Cabinet meeting of 2018, President Donald Trump touted his administration's accomplishments and said his White House would address the nation's libel laws, which he called a "sham and a disgrace." (Jan. 10)

AP

President Trump took aim at the press soon after coming into office. Our current libel laws are a sham and a disgrace and do not represent American values or American fairness, he said.

Since the 1960s, the Supreme Court has made clear that the First Amendment protects statements made about public officials unless they are false andintended to defame. Only "reckless disregard for the truth" is unprotected.

Furthermore, the media can publish information from classified documents even if the government says it would threaten national security, a conclusion reached in the Pentagon Papers case featured in the recent film, The Post.

This explainer is part of the Trusting News project. Learn more about it here.

For more information on the First Amendment, check out theNational Constitution Center, theNewseum Instituteand theLegal Information Institute.

See the article here:
First Amendment: What rights it protects and where it stops

Graphic: Katie Nishimura | Loyolan

As we enter into our annual First Amendment Week, reflecting on the First Amendment and its necessary freedoms is of vital importance.

The First Amendment of the U.S. Constitution ensures the freedoms of speech, press, religion, the right to assemble and the right to petition the government. All five elements of the amendment have been and continue to be critical to the promotion of positive change and equality in the United States.

Freedom of speech insulates political discourse and provides each American citizen with the ability to have a say in the nations political needle. It also ensures that minority communities in America have the ability to play a part in political discourse.

For over 70 years, womens rights activists campaigned for womens suffrage by holding conventions, marching in the streets, pressuring lawmakers and even picketing at the White House. While they did not yet have the power to vote, the strength of unified voices across the country forced Congress to listen; finally, in 1920, they succeeded.

The power of free speech was equally transformative during the civil rights movement in the 1950s and 60s. Facing stifling oppression from segregation, voter restriction, police brutality and systemic inequality, Black activists used their voices to demand change. They exercised their First Amendment rights through sit-ins, boycotts, marches and protests, making a visible statement. Their refusal to back down led to groundbreaking legal protections, most notably the Civil Rights Act and the Voting Rights Act.

Free speech is the weapon by which oppressed and marginalized groups can ensure their rights as sovereign citizens.

As todays human rights activists fight for the safety and well-being of marginalized communities, freedom of speech is vital. It allows for those with little power to challenge those who have too much, and has the ability to bring about revolutionary change.

Freedom is not a uniform privilege, it is a spectrum. The American government may not always recognize rights that ought to be recognized, and there will continue to be communities who are comparatively unfree, comparatively unequal. Free speech is the weapon by which oppressed and marginalized groups can ensure their rights as sovereign citizens.

The linking of freedoms is an intentional consequence of the First Amendment. Of course, when talking about freedom of expression, it is necessary to draw comparisons to freedom of religion, which is, for many Americans, an ability that unites congregations and cultivates a sense of fulfillment. Americans are often at their most unified when engaged in group worship or by exercising their right to explore spirituality through varied and protected rituals.

As student journalists, the freedom of the press gives us the opportunity to keep the LMU community informed and hold our institution accountable. A free press is fundamental to the existence of a true democracy, and news organizations across the nation bear the responsibility of factual reporting. The Loyolan is built on the pillars of accuracy, relevancy and responsibility these are standards that we hold ourselves to in each and every article we publish. The LMU community has the right to be informed about what is happening on campus, so it is our responsibility to report the facts.

Here at LMU, First Amendment Week has been an amazing opportunity for all of us at the Loyolan to connect with the rest of the community. We hosted our first Wellness Wednesday table and had students and staff share something that they love, in honor of freedom of speech (and Valentines Day, which conveniently fell in that same week). We also hosted a screening of senior computer science, history, and applied mathematics triple major Veronica Backer-Peral's documentary, Promise and Peril, and will be sponsoring an event with L.A. Times Executive Editor Kevin Merida next week.

The First Amendment is not only still relevant, it is also critical to the health and safety of all American citizens. On a local, state and national scale, those five necessary freedoms are as fundamental to our nation as they were nearly 250 years ago.

See the original post:
Board Ed: Why the First Amendment still matters - Los Angeles Loyolan

In Justin Trudeau's mind, he's always the victim.

Trudeau, the boyish, blackface-wearing prime minister of Canada, views himself as part of an oppressed underclass. His oppressors are Canadian truckers working people with concerns about his vaccine mandates and his long-standing border lockdown. He believes that by staging a protest in his capital city of Ottawa, the truckers are committing treason or something very close to it.

For parking their trucks outside Parliament, making noise, and engaging in civil disobedience, these truckers have been accused by Trudeau and his fellow Liberal Party comrades of "insurrection." He has accused them of attempting to overturn an election. He has threatened violent crackdowns and treated them as if their protest is not a protected activity. He has sent the police out to steal their fuel in hopes that the Canadian winter will do the rest and cause them to pick up and leave.

Trudeau's government is invoking emergency powers that, in the past, have only been used in times of war and against terrorists. Canadians expressing support for the truckers on Facebook are even receiving visits from the provincial police at their homes the People's Republic of Canuckistan is apparently more than just a jokey name.

Some left-wing American journalists and commentators have been even worse, openly urging violence and property destruction as retribution for the truckers' act of civil disobedience against Trudeau's regime. Nothing makes leftists angrier than when their own tactics are used against them.

In American terms, the Left's hypocrisy on this trucker protest can be illustrated through comparisons to the Occupy Wall Street protests of more than a decade ago. Love them or hate them, most decent people did not want to see the police march into the parks and beat the occupiers silly with billy clubs. The media even nauseatingly insisted on taking them seriously even though it was too much for most normal people to be lectured about inequality and economic hardship by a gaggle of privileged, white college kids who had never experienced either.

From a Canadian perspective, however, there is a much more apt comparison than Occupy for what Trudeau is doing now. Most Americans might not remember or know about this, but credit the New York Times editors, of all people, for bringing it up. Specifically, in November 2020, Trudeau spoke out in favor of a farmers' protest in India that had fouled up New Delhi highways for a year. When Indian authorities cracked down, Trudeau was happy to get up on his high horse, volunteering Indians and Prime Minister Narendra Modi to suffer the consequences of road-blocking civil disobedience with the equanimity that a free society requires.

"Canada will always be there to defend the right of peaceful protest," Trudeau even said. Wow, that quotation is really a howler now, isn't it? Peaceful protest is great just don't try it inside Canada, and you'll stay on Comrade Trudeau's good side.

One need not agree with the truckers' cause to understand the danger that Trudeau's dictatorial behavior poses to the rights of free speech and assembly. Clearly, like their southern neighbors, Canadians made a mistake in their last election.

And unfortunately, they do not have the First Amendment to protect them from power-hungry tyrants like Trudeau. They could really use one.

This incident stands as yet another reminder of how important and crucial to a free society the First Amendment really is with its near-absolute support for free speech and free discourse. Those who would weaken such protections, whether in the name of preventing hate speech or limiting campaign contributions, are just little tyrants waiting to show themselves just like Justin Trudeau.

Read more:
Only the First Amendment stands between the US and little dictators like Justin Trudeau - Washington Examiner

The freedom of speech, however, is a natural right. It comes from within each of us. Its essence is that individuals have a natural right to think as we wish and say what we think and listen to whomever we choose, and we dont need the approval of the government or a consensus of the loudest.

To those who want to silence Rogan, just imagine what this mess of a country would be like if the loudest voices could silence all others. Freedom thrives on the clash and free flow of ideas. Since 1969, we have succeeded in keeping the government out of the business of censoring and punishing speech; now we must keep the mob out.

Do the Rogan haters really want those bad old days to return? I ask this because the folks who hate and fear Rogans ideas really hate and fear his freedom and their next step will be to use the government to silence him. It is short steps from hatred to silencing to punishing speech.

Read more at LewRockwell.com

A former judge of the Superior Court of New Jersey, Andrew P. Napolitanois the senior judicial analyst at Fox News Channel. Napolitano has written nine books on the U.S. Constitution. The most recent isSuicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty.

Read this article:
OPINION: Andrew Napolitano - Joe Rogan and the First Amendment - HNN Huntingtonnews.net

February 21, 2022

Today on the Strong Towns Podcast, we wanted to give our listeners an update on the lawsuits that Strong Towns is involved in.

For those new to Strong Towns, here is a brief overview: Charles Marohn, president of Strong Towns, is an engineer and maintains his license even though he stopped doing engineering work in 2012. Briefly in 2018, his license lapsed. Once he realized this, Marohn promptly renewed it, however, the Minnesota Board of Licensure is claiming that he misrepresented himself to the public during the time when his license had expired. They are now demanding that Marohn sign a stipulation order stating that he deceived the public.

In turn, on May 18, 2021, Strong Towns filed a lawsuit against the Minnesota Board of Licensure. The complaint holds that the Board and its individual members have violated the First Amendment free speech rights of Charles Marohn and Strong Towns.

The threatened action by the Board of Licensure is about one thing: using the power of the state to discredit Strong Towns, a reform movement. To silence speech. To retaliate against an individual who challenges the power and financial advantages enjoyed by a certain class of licensed professionals.

This has become even clearer with some new documentation that casts a disturbing light on the situation. Marohn discusses this in detail in the podcast, and you can download the accompanying PDF here. The original article referenced in the documentation can be read here.

See more here:
The Latest Update on the Strong Towns Lawsuit - Strong Towns

The EARN IT Act, recently cleared for floor consideration by the Senate Judiciary Committee, remains a contentious bill, primarily over concerns that it might dissuade tech providers from using encryption. But amid ongoing debate about Section 230 and the role of tech platforms in our public discourse, legislation like EARN IT could, if paired with carefully crafted procedural protections, offer a model for how Congress can address bipartisan concerns about child sexual abuse material (CSAM) and other illegal content online.

Debates about Section 230 and the liability shield it grants to digital platforms typically center either on how to make platforms remove hate speech, misinformation and other disfavored content, or how to prevent them from censoring certain political speech, particularly that of conservatives. But such discussions fundamentally misunderstand what Section 230 was meant to do: define how best to assign liability for content-moderation decisions in order to achieve the ideal balance of expression and potentially harmful content.

No moderation system will ever be perfect. Some harmful content will always exist. But there is no reason to presume that the status quo, rooted in assumptions about the online environment from more than two decades ago, necessarily strike that balance in a way that makes sense today.

To the extent that the law currently allows harms that exceed the benefits of expression, it should be adjusted to deter those harms if doing so can be achieved at sufficiently low cost. Nearly everyone would agree that harmful content should be removed if it can be done without any effect on lawful expression. Thus, the question is finding the right tradeoff: one that would deter harms but not impose such massive legal liability as to drive online platforms out of business. This can be done, but it requires thoughtful consideration.

The EARN IT Act traces the edges of the problem but, without a truly holistic approach, it could do more harm than good. While Section 230 is largely beneficial, its grant of near-total immunity prevents the legal system from adapting to new developments. To be sure, as platforms discover new forms of harm, there are pressures that guide their behavior, such as concerns about image and the ability to grow and maintain a user base. But without legal consequences for making unreasonably bad decisions, such pressures may not provide enough incentive to find optimal solutions.

Rather than a blanket grant of legal immunity, Section 230s protections should be conditioned on platforms demonstrating reasonable behavior. That is to say, an online service provider should have a duty of care to reasonably moderate illegal content. Implicit in the idea of reasonable moderation is the understanding that platforms will not be able to deal with all bad content.

It could be the case that platforms already operate as reasonably as would bepossible, within the bounds of economic efficiency. But determining that should involve at least some oversight from a neutral court.

Analyzing whether a platform has behaved reasonably could include examining its use of encryption, as the EARN IT Act contemplates. Given that many malicious actors seek to steal user data, it may be completely reasonable to encrypt communications. But there may also be marginal cases where a platform unreasonably allowed encryption to be used to hide what it had good reason to believe was criminal behavior. Flexible standards of reasonableness, informed by well-developed industry best practices, can grapple with either of these situations.

Because courts largely have not had the opportunity to weigh these issues through a gradual and iterative process over the quarter-century that Section 230 has been in effect, it would be ill-advised simply to throw all the questions surrounding online moderation to the judicial process in one fell swoop. This would invite a torrent of litigation that threatens to do more harm than good.

To make the transition less chaotic, there should be procedural limitations, such as heightened pleading standards and an explicit safe harbor to cut litigation short at the pleading stages. These reforms also should incorporate industry standards and best practices, and a judicial review mechanism that can provide feedback to the process.

There are legitimate concerns when it comes to federal legislators tinkering with Section 230. Many lawmakers public statements suggest they want regulations that are totally inconsistent with the First Amendment. But there is more that can be done, within the bounds of the Constitution, to address the very real problem of harmful and illegal content online. The EARN IT Act is not perfect, but it sketches a framework that could be developed into a more balanced reform of Section 230.

Kristian Stout is director of Innovation Policy with the International Center for Law & Economics and co-author of the working paper Who Moderates the Moderators?: A Law and Economics Approach to Holding Online Platforms Accountable Without Destroying the Internet.

Excerpt from:
EARN IT could offer framework for better platform moderation | TheHill - The Hill