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The Evolutionary Perspective
Category Archives: First Amendment
Posted: October 17, 2021 at 5:14 pm
Members of the media film four of the original surviving Magna Carta manuscripts that were brought together by the British Library for the first time, during a media preview in London, Monday, Feb. 2, 2015. The event marked the 800th anniversary of the Magna Carta, which established the timeless principle that no individual, even a monarch, is above the law. The original Magna Carta manuscripts were written and sealed in late June and early July 1215, and sent individually throughout the country. (AP Photo/Alastair Grant, used with permission from the Associated Press)
The Magna Carta, or Great Charter, is a series of concessions that English noblemen extracted from King John I at Runnymede, England, in 1215, and that some later monarchs reissued. The documents preamble and 63 clauses remain an important foundation for the rights claimed by English citizens, including those who immigrated to the United States.
Although Britain continues to operate according to the principle of parliamentary sovereignty and has never adopted a single written document, such as one resembling the U.S. Constitution, British citizens still look to the Magna Carta, as well as the later Petition of Right (1628) and English Bill of Rights (1689), as establishing fundamental principles that the government dare not violate. John Locke and William Blackstone were among the English legal theorists who expanded the principles of liberty in the Magna Carta.
In Americas colonial days, the most significant principle of the Magna Carta was that the king had no power to tax persons who were not represented in the government. Colonists cited this principle of no taxation without representation in the Declaration of Independence and in other documents that asserted colonial privileges. Before the Revolutionary War, the colonists viewed the charters issued to them by the king in the same way that they viewed the Magna Cartaas providing protections for their rights. Many of these protections were later incorporated into state constitutions before being expanded and incorporated into the U.S. Constitution and its Bill of Rights.
Clause 29 of the Magna Carta prevented the English government from jailing or punishing an individual except by the lawful judgment of his peers and by the law of the land. This clause is generally understood to provide the foundation of the due process clause of the U.S. Constitutions Fifth and Fourteenth Amendments.
The idea that nobles could meet with the king and present him with a set of grievances arguably foreshadowed both the peaceable assembly and petition provisions of the First Amendment. The provision of the Magna Carta that appears closest to the First Amendment is in Clause 1: The English Church shall be free, and shall have her rights entire, and her liberties inviolate. This text hardly prevents the establishment of a national church (Britain continues to recognize the Episcopal Church as the established church), as does the First Amendment, but it does acknowledge a sphere in which religious claims should be free of state supervision and control. Moreover, claims once associated specifically with the nobility have been widened both within Britain and the United States to include all citizens.
In 2015, the British Library featured a display of the Magna Carta, the U.S. Declaration of Independence, and the U.S. Bill of Rights to mark the 800th anniversary of the Magna Carta.
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.
Posted: at 5:14 pm
Patty Rhule. Photo courtesy Freedom Forum
By PATTY RHULE
The First Amendment isnt just lofty language.
For many Americans, including five we asked about it, its 45 words that they are living every day.
The Freedom Forum surveyed more than 3,000 people in late summer 2020 to find how their values and attitudes shape their feelings about the First Amendment. The First Amendment: Where America Stands finds near-universal support that the freedoms of religion, speech, press, assembly and petition are vital and essential today. We interviewed dozens of survey participants to get more insight into their thoughts about the First Amendment. Here are some thoughts from five of them.
Bora Kimemigrated to the United States from South Korea as a young girl. I was coming from a country and a culture that I should say, maybe didnt value or prioritize the freedom of expression or holding ones own opinion as valued. So when I came to the States being taught to really voice myself and to respect myself as an individual was really validating and empowering.
Today, Kim lives in New York City and advocates for artists and their right to free expression an everyday extension of her First Amendment freedoms. My work in supporting them is in a way allowing that freedom of speech and expression to be possible for these individuals.
Eric Arroyogrew up using his freedoms of assembly and petition as a child of the 60s fighting for civil rights, womens rights and gay rights. There was the youthful movement of saying, This is wrong. Why cant Blacks vote? Why must women be told what to do with their bodies? Why must you have Latinos and Asians being treated as second-class citizens?
I marched, sat in, boycotted all peacefully, said Arroyo, now retired in the Bronx, N.Y., from economic development work. He worked for progressive candidates and tried to effect change. Power was challenged, and unfortunately people were killed. And people sacrificed on behalf of that highest principle that we are in fact equal and should have equal access to the law.
WATCH:The First Amendment: Where America Stands Survey Interviews
ForRuben Morenoof Tucson, Ariz., speech is his most valued freedom. Im a gay American, so I need to be able to express myself doing a Pride parade, during a job interview, for healthcare. Its important that everybody, no matter who they are straight, gay, trans that they are able to be who they are and speak their truth with their authentic selves. If thats taken away, I mean, thats a huge tragedy, not just for Americans, but for America.
Raised in a fundamentalist faith, Moreno now exercises his First Amendment freedoms by opting out of organized religion. Speech is his most valued freedom, but press is a close second. Look, if you want to be like Russia or North Korea or Brazil or any other dictatorships in the world, youre going to want to limit freedom of the press because you dont want free thought to get around, Moreno said. You dont want people thinking on their own.
Rise Briggs, a picture framer and farmer in Roseburg, Ore., is also concerned about freedom of thought. Active on various community boards, Briggs has lately felt that free speech her most treasured freedom is under attack.
I dont expect people to agree with me, but I expect people to think, says Briggs, a Native American. Ive always written the letters to the editor and things like that as I process. It gets people to either get fired up and do something or something along those lines. But I didnt expect a lot of venom and thats what Im getting now.
Still, she opposes the idea of campus safe spaces where speech is limited for college students. You must allow the ideas to be heard, she said. Nor does she believe in the idea of hate speech, defining the term as made up to silence people.
If you believe in the First Amendment, you can say whatever you want. It affords you the ability to be heard and to have conversations and dialogues and resolve issues that may need to be able to have people debate.
Religious freedom is most vital toRobert Gray, whose family fled Germany and Switzerland for Pennsylvania in the late 1600s due to religious persecution they experienced as Mennonites.
Gray, a CEO who lives in Terre Haute, Ind., worries about the lack of responsibility people exhibit in exercising their freedoms today. If I know my speech is going to hurt somebody and take away their rights, maybe I should think a sec and engage my brain before I put my mouth in gear.
For Arroyo, it all comes down to five freedoms. I value the First Amendment because it presents me with five rights that I have to live my life and enjoy my life in the company of my fellow citizens.
Watchmore Americans share their First Amendment views and questions, plus expert answers.
. . .
Patty Rhule is the chief content officer and vice president of the Freedom Forum. She can be reached at[emailprotected].
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FIRST 5: For these 5, First Amendment is everyday essential - Salina Post
Posted: at 5:14 pm
The First Amendment protects citizens against government censorship and limitations of freedom of expression, though it does not prevent private companies from setting their own rules.
And so, any discussion of free speech is irrelevant without bringing online social media platforms into the conversation. Every one of these huge platforms supports bigger government, higher taxes, and government dependency, and they have the power to legally censor or cancel any individual or private entity that does not fit their agenda.
Consequently, an ideologically authoritarian government can easily skirt A1 by using its social media allies to legally censor and cancel all opposing speech and information.
For Constitutionalists like me, this is where the real fight is today, and those at the forefront must have very specific goals:
-Legally enable and encourage universal access to the internet;
-Legally protect online freedom of expression irrespective of ideology;
-Restrict and monitor any and all government efforts to access personal data and censor perceived opposition by politically weaponizing social media; and,
-Establish and financially incentivize smaller social media platforms, and greater ideological diversity.
To summarize, these immensely powerful private companies like Facebook, Twitter and Google currently set their own rules, and control the political discourse of a nation. This is extremely dangerous for a free society, and so these companies must be prevented from arbitrarily limiting the political speech of their users, or risk disbandment through Anti-Trust legislation.
This may seem extreme, but the survival of our republic may well depend upon it, as it did more than a century ago.
Addressing First Amendment limitations - Boothbay Register
Fired Spanish Fort magistrate alleges termination amounts to violation of First Amendment rights – FOX10 News
Posted: at 5:14 pm
MOBILE, Ala. (WALA) Going to court to challenge a firing is an uphill proposition in Alabama, where employers have broad latitude to hire and dismiss workers.
Spanish Forts former court magistrate, Lyndsey Cooper, is making a novel effort to overcome that hurdle. She has filed a lawsuit alleging that her dismissal following a criminal assault complaint she made against Mayor Mike McMillan amounts to a violation of her First Amendment rights.
Her attorney, Elizabeth Citrin, acknowledged that this is an unusual approach to an employment dispute.
It took a bit of research to figure out what type of claim and whether it would be filed in state or federal court, would apply to this particular set of circumstances, she said. There isnt another case like it, exactly, on point. Its unprecedented in terms of this particular set of facts because they are all fact-specific.
The lawsuit, filed in U.S. District Court in Mobile, seeks a court order declaring the citys actions to be a violation of Coopers constitutional rights. She also seeks back pay from the date of her termination, compensation for future lost earnings and reinstatement of her retirement benefits.
The civil complaint names the city of Spanish Fort, McMillan and Lynn Williams, who was the citys clerk-treasurer.
McMillan declined to answer questions about the lawsuit, but City Attorney David Conner told FOX10 News that the allegations are false.
The city plans to vigorously defend the litigation, he said.
The dispute dates to an incident in October 2019 when, according to Coopers allegations, the mayor assaulted her. The lawsuit contends that Cooper was upset that another city employee had deleted a website that she had been working on for five months.
McMillan, the complaint alleges, was trying to explain to Cooper what happened and swiped the computer monitor as if it were a touch-screen device. Cooper laughed at that, prompting McMillan to go into a fit of rage, according to the suit. Cooper accused the mayor of screaming at her to shut up and then slapping her across the face.
Cooper made a criminal complaint to the Baldwin County Sheriffs Office, which ultimately filed a misdemeanor harassment chargeagainst McMillan. But a judge ended up finding him not guilty after a trial in which a prosecutor played a surveillance video of the incident.
The lawsuit contends that city officials decided immediately to get rid of Cooper and alleges that Williams drafted a termination memo. Citrin said the memo was on a server that could be viewed by any city worker.
Rather than firing Cooper right away, Citrin said, the city took a series of steps to make her job miserable. The lawsuit contends city officials isolated her, effectively holding her hostage anytime the mayor was at City Hall and stripped her of her magistrate duties. At one point, the suit states, Williams ordered her to take on the duties of the receptionist.
Finally, according to the suit, the city singled Cooper out to conduct temperature checks of visitors to City Hall during the COVID-19 pandemic. She refused because she did not have the proper medical training and feared for her safety, and then the city moved to terminate her in June 2000, according to the suit.
They started a termination memo right after they got wind of her having reported the (slapping) incident to the Sheriffs Department and then realized that they better create a different reason for terminating her and spent the next eight months creating those reasons to give it a reason other than the violation of the First Amendment rights, Citrin said.
But Conner, the city attorney, told FOX10 News that Cooper was not the only employee asked to help with COVID protocols. He said the city supplied her with gloves and a thermometer to aim at people as they stood outside the door. He said such temperature checks were common measures conducted by many companies and government agencies.
What she was asked to do was what hundreds of thousands of other people are doing around this country every day, he said.
Conner acknowledged that there was a draft termination letter that predated the dispute over the temperature checks. But he said it was unrelated to her firing.
At some point in time, there was some discussion, he said. That was stopped. The letter was never even completed. No further action was taken pending a resolution of the criminal case and the investigation that was going on against the city. There was no action taken against her.
Conner also noted that Cooper had ample opportunity to press charges against McMillan in the criminal case and to appeal her termination.
Shes had due process at the city level. Shes also had due process at the state level, he said.
But Coopers lawsuit depicted that appeal process as a sham.
The appeal was a fiction, akin to a kangaroo court (that) was neither fair nor impartial, the suit states.
Citrin said prior to the alleged slap, there had been no bad blood between her client and the mayor and never any suggestion that she was not performing her job well.
Why it escalated to this point where we ended up where we are today is kind of beyond comprehension, she said.
All content 2021, WALA; Mobile, AL. (A Meredith Corporation Station). All Rights Reserved.
Posted: at 5:14 pm
The Prairie newsroom currently has a group of art students working on an art mural. Associate Professor of Art Jon Revett is the project manager, and May Truong, a studio art major focusing on painting with a minor in printmaking, is the lead art student for the project.
Revett was approached by Assistant Professor of Media Communication Dr. Nancy Garcia to form a team to paint the art mural, which has been a long process of early mornings and late nights for the art students. Often, the art students will be in the art room painting from 7-9 a.m. on weekdays, and 7-10 p.m. on weekends.
Nancy Garcia approached me about doing a mural, Revett said. She really just wanted to do something with the First Amendment because it was that smaller piece on the wall.
The art students have to use mathematics for the design wall, due to getting the text exactly right.
When we work with Revett, most of his art is patterns, Truong said. A circle on top of a circle, when you get the math, you know which circle to apply on the wall. Its easier than projectors, they are a little tricky.
Planning is also a very important part of the process, as there is a process to finding materials and getting the math right. There are also some design challenges with the wall, which can affect the speed of the job.
We planned for it to be student-led, so we did about three designs that werent fitting, Revett said. So, when I went and spoke with Nancy we came up with another plan and so its more of an adaptability.
The ongoing designing process of the art mural, Tuesday, Sept. 28, 7:12 p.m. (Photo/ Victoria Fatiregun)
The art mural students have also worked on other projects at West Texas A&M University, including the mural in the Jack B. Kelley Student Center.
Read more from the original source:
First Amendment Art Mural, The Prairie newsroom - The Prairie
Posted: at 5:14 pm
October 05, 2021
PUBLIC SCHOOLS OF ROBESON COUNTY
Mike Smith, chairman, firstname.lastname@example.org
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N.C. Sen. Danny Earl Britt Jr., R-Raleigh, 300 N. Salisbury Street, Room 525, Raleigh, NC 27603, 919-733-5651, Danny.Britt@ncleg.gov.
N.C. Rep. Brenden H. Jones, R-Tabor City, 16 West Jones Street, Room 1227, Raleigh, NC 27601-1096, 919-733-5821 or 919-733-5821.
N.C. Rep. Charles Graham, D-Lumberton, 300 N. Salisbury St., Room 509, Raleigh, NC 27603-5925. 919-715-0875, or 910-739-3969, Charles.Graham@ncleg.gov.
U.S. Sen. Thom Tillis, 310 New Bern Ave. Suite 122, Raleigh, NC 27601, 919-856-4630, or 113 Dirksen Senate Office Building, Washington, DC 20510, 202-224-6342
U.S. Sen. Richard Burr, R-North Carolina, 217 Russell Senate Office Building, Washington, DC 20510, 202-224-3154.
U.S. Rep. Dan Bishop, Lumberton, 550 N. Chestnut St., Suite 152, Lumberton, NC 28358, 910-671-3000, Ext. 7111 or 1207 Longworth House Office Building, Washington, DC 20515, 202-225-1976. https://danbishop.house.gov/contact/email.
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U.S. Pres. Joe Biden, Comments: 202-456-1111, Switchboard: 202-456-1414, e-mail: https://www.whitehouse.gov/contact/. The White House, 1600 Pennsylvania Avenue, N.W., Washington, DC 20500.
Posted: at 5:14 pm
By Ramishah Maruf, CNN Business
The media treats some aspects of the first amendment such as press freedom as sacred. But when it comes to other crucial protections, including free and fair elections and other basic tenets of democracy, there tends to be a sliding scale. On Reliable Sources Sunday, CNNs chief media correspondent Brian Stelter discussed the changing role of political media and how reporters need to do a better job protecting democracy.
My main critique is that is that the goalposts have been moved for everything other than the press coverage of press freedoms, Marc Elias, the founder of Democracy Docket, said on Reliable Sources Sunday.
A couple of weeks ago there was more coverage about the failing of a news outlet I had never heard of, frankly, Elias said. And less about the backsliding of democracy.
Robert Costa, a reporter at The Washington Post and co-author of Peril, said the role of political journalism has to change in an era of rapid misinformation and polarization.
After working with Watergate reporter Bob Woodward on the book, Costa said he realized democracy itself was in peril in the US and former president Donald Trump is playing a pivotal role.
[Trump] used power when he was in office to test democracy to the extreme, Costa said. Hes doing it again, inside the Republican Party, to pressure Republicans to say the election was stolen.
Costa said journalists can no longer cover politics based on red states vs. blue states or the personalities of candidates or elected officials.
For understanding American politics in this fragile moment you have to see how power is being used, not just in the halls of the Capitol, but outside, Costa said.
As a former reporter for conservative outlet the National Review, Costa said he reported on the rise of birtherism and the Tea Party movement, which at the time represented fringe viewpoints but eventually took center stage in the Republican party.
More reporting is always the answer, Costa said. Its not about not covering [personalities], its about covering them in a way that really gets at who these people are, how they will use power.
Election lies have real consequences. On Reliable Sources, Stelter revealed that he was the victim of a serial harasser while covering the end of the 2020 presidential election. Hes identified as victim one in the criminal case, in which the perpetrator was charged for sending threatening text messages to politicians and journalists.
The harasser found phone numbers and addresses for Stelter and his family members, and threatened his brother. He even sent Stelter a picture of his fathers grave.
Then it got worse, Stelter said. The guy sent me a voice message saying you can either choose to dig the hole deeper or stop digging because were not effing around,'
Stelter realized it wasnt just about scaring him.
This man probably was about something, he thought he was a part of something bigger, he really seemed to believe Trump won. To him every day was January 6th, Stelter said.
Stelter was not aware of the scale of the harassment until the FBI contacted him in March. On Friday, the California man pleaded guilty to one count of making threatening interstate communications relating to ABC News host George Stephanopoulos.
Now that man is behind bars but this is the type of harassment that journalists face every day, Stelter said. It is pervasive.
The-CNN-Wire & 2021 Cable News Network, Inc., a WarnerMedia Company. All rights reserved.
Posted: at 5:14 pm
Story Produced by NH Bar News, a member of
Conventional wisdom in the United States has held that people should never talk about money, politics and especially religion.
So much for conventional wisdom.
Over the past 19 months and counting, pandemic-related contingencies and politics along with cases in the United States Supreme Court and the New Hampshire Supreme Court have forced debates into the open and are testing the waters on a variety of topics that were once considered taboo to speak about openly.
One area where this shift can be seen is the intersection between Covid-19-vaccine mandates and requests for religious exemptions in the workplace.
And connected to this issue is the question of whether an individuals or an institutions religious beliefs can excuse them from compliance with an otherwise valid mandate or law prohibiting conduct that government is free to regulate.
Employment law attorney Beth Deragon represents several clients requesting religious accommodations from their employers involving the COVID-19 vaccine. Prior to the pandemic, she says, religious accommodation requests were rare and mainly limited to employees requesting time off for religious holidays.
Anti-discrimination laws that once created a workplace culture that discouraged discussion about religion while at work, Deragon continues, have given way to a workplace environment where employees who are requesting a religious accommodation now must express and potentially defend their religious beliefs to their employers.
It goes without saying that religious beliefs are deeply personal. Typically, employees do not reveal their religious beliefs in the workplace, she says. In fact, until the vaccination issue, discussion of religious beliefs in the workplace was discouraged due to potential liability under state and federal anti-discrimination laws.
Title VII Civil Rights Act of 1964 prohibits discrimination based religion, among other protected classes. It requires covered employers, upon notice of a request for an accommodation, to reasonably accommodate employees who have sincerely held religious beliefs, practices, or observances that conflict with work requirements, unless the accommodation would create an undue hardship to the employer.
Section 12 of the Equal Employment Opportunity Commissions (EEOCs) guidance on religious discrimination explains that a belief is religious, for Title VII purposes, if it is religious in the persons own scheme of things.
Further, the EEOCs guidance states that an employees belief, observance, or practice can be religious under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individuals belief, observance, or practice, or if few or no other people adhere to it.
While potentially risky, employers can challenge whether an employees religious beliefs are sincerely held. Deragon says she has been advising clients who are requesting a religious accommodation to provide as much information as they are comfortable with to validate the sincerity of their religious beliefs.
This is unchartered territory, she says, referring to one of her recent clients where the employer, after receiving a detailed account of her clients religious beliefs, requested a follow-up panel interview with the employee to discuss the employees religious beliefs. Some health care providers are asking employees who request a religious accommodation from the COVID vaccination, Why didnt you request an exemption for the influenza vaccine when that was offered last year suggesting an inconsistency based on past choices that employee made.
While inconsistent behavior is one factor that an employer can consider in assessing the sincerity of an employees religious beliefs, the EEOC guidance is clear that it is not dispositive.
One stumbling block for health care employers, Deragon says, could involve a scenario where a person with a sincerely held religious belief seeks a religious exemption for the COVID vaccine and the employer concludes that it would be an undue hardship to provide such an accommodation based on health and safety concerns.
Not every employee in the healthcare industry works directly with patients. A blanket denial of a religious accommodation request based on health and safety concerns regardless of the employees position will likely not comply with the law. We went through a pre-vaccine period where employees who had to work in the workplace were wearing PPE with a high degree of success in terms of mitigating transmissibility and where some healthcare positions enabled employees to work remotely, she says. The employer is required to consider the requested accommodation and whether there are other accommodations that are reasonable such as wearing PPE, social distancing and regular testing. If the employer cant provide any accommodation, then it has to be able to articulate what the undue hardship is.
While this issue percolates in the court system, Deragon says employers are left with interpreting the existing legal requirements in the context of vaccination requirements without much guidance.
Media Relations Manager at Dartmouth-Hitchcock, Audra Burns, says that more than 99 percent of Dartmouth-Hitchcock Health (D-HH) employees have complied with D-HHs Immunization and Exemption Requirements policy for COVID vaccination.
Burns said the hospital is not publicly disclosing specific numbers of vaccinations or exemptions but said employees who received exemptions will be required to follow weekly testing and enhanced PPE guidelines.
We respect the time and consideration our employees gave to taking this important step, and we are heartened that the overwhelming majority made the choice to support and continue the critical work to defeat the pandemic, Burns said.
Derek Januszewski, lead pastor of Pachamama Sanctuary in southern New Hampshire, uses the ayahuasca plant, a traditional Amazonian plant medicine containing dimethyltryptamine (DMT), in the ceremonies at his temple.
In the United States, DMT is considered a schedule one drug that can carry jail time and/or steep fines for possession.
While there is no mention of DMT a drug that produces hallucinogenic effects in New Hampshires drug laws, other schedule-one drugs include heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote.
Januszewski says the First Amendment protects his religious freedoms and he doesnt spend a lot of time worrying about the legal repercussions of possessing ayahuasca. Thats because he believes hes acting within his rights under both the United States Constitution and the New Hampshire Constitution.
Im lawyered up, he says. And if I end up having to deal with something I have a lot of people behind me as well as a solid statement of belief and a text called the Ayahuasca Manifesto, and we hold ceremonies in a very specific way.
The First Amendment of the U.S. Constitution contains two provisions regarding religion: the establishment clause and the free exercise clause.
The establishment clause prevents the government from establishing a state religion and the free exercise clause protects peoples right to practice religion the way they please, so long as the practice doesnt go against public morals or a compelling governmental interest.
So, while the text is absolute, the courts place some limits on the exercise of religion. For example, courts would not hold that the First Amendment protects human sacrifice even if a religion required it. The Supreme Court has interpreted this clause so that the freedom to believe is absolute, but the ability to act on those beliefs is not.
In Prince v. Massachusetts (1944) the Supreme Court held that a state could force the inoculation of children whose parents would not allow such action for religious reasons because the state had an overriding interest in protecting public health and safety.
As I understand it the first amendment protects freedom of religion and states have their own laws. Each state has its own protections. Some more restrictive than others, and some make more allowances for plant medicines, Januszewski says.
The New Hampshire Supreme Court decided a case in Dec. 2020, State v. Mack, in the favor of an individual convicted of possessing psilocybin, a schedule one controlled substance.
The defendant in the case, Jeremy Mack, claimed his membership in a Native American church required him to use the drug for sacramental purposes and this was the basis of his appeal with the N.H. Supreme Court.
Tom Barnard, of the New Hampshire Appellate Defender, was appointed counsel for Mack, whod been arrested and convicted in Superior Court.
Barnard says he had never had a case involving religious freedom and illegal drugs but that his argument was clear from the beginning.
The issue this case brought up was obvious, Barnard says. When I looked back through the history and understanding of the founders of the state constitution going back to the late 18th century and the electorate it became clear they had very different values than we have today. They placed a premium on religious freedom and the ability to practice religion without state interference.
Barnard explained that at the time the New Hampshire Constitution was drafted, there was less emphasis on equality of treatment and avoiding discrimination. In fact, he says, there are a lot of exceptions to generally applicable laws, which was what the state relied on in the Mack case, citing a SCOTUS case from 1990.
Employment Division, Department of Human Resources of Oregon v. Smith (1990) found that generally applicable laws could be applied without strict scrutiny.
The case involved two counselors for a private drug rehabilitation organization who ingested peyote as members of the Native American Church. As a result of the employees conduct, they were fired and denied unemployment benefits on the grounds their behavior was work-related misconduct.
After making its way through Oregons courts, the case was sent to the U.S. Supreme Court. In a 6-3 decision, with Antonin Scalia writing for the majority, the Court decided that allowing exceptions to state law in cases affecting religion would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.
In State v. Mack, Barnard says the states Attorney Generals office argued that N.H. should adopt Smith under the state constitution.
It looked like the argument under the state constitution was strong and that Smith was not compatible under the state constitution, Barnard says.
And the N.H. Supreme Court agreed, using the Free Exercise Clause to inform their interpretation of New Hampshires constitution.
When it comes to free exercise rights, Barnard says New Hampshires Constitution is relatively more protective than other state constitutions.
Constitutional Law professor, John Graebe, says it was the Smith decision that led to the Religious Freedom and Restoration Act of 1993.
The RFRA protects the rights of individuals to exercise their religious beliefs even if the burden results from a rule of general applicability. It also requires that strict scrutiny is applied in cases involving religious expression.
In situations such as Januszewskis use of Ayahuasca, or Jeremy Macks use of psycilocibin in religious sacraments where a law that might be found to intrude on free exercise rights, under the RFRA the government needs compelling reasons to enforce a law against religious adherents.
The RFRA is Federal legislation that sought to change what the U.S. Supreme Court had done in Smith, Graebe says.
But with the makeup of the current Supreme Court and recent decisions, Graebe says another case like Smith could be taken up again, and this time the court would likely side with the individuals right to religious expression.
The Smith case was in the 90s and weve seen more and more of a shift in society, and a more sympathetic reception from the Supreme Court with respect to claims by religious persons and religious organizations, he says.
Graebe cited the Masterpiece Cakeshop case in 2017 involving a bakers refusal to bake a cake for a gay couple on religious grounds as an example of a case where people were ready to revisit the Smith.
While the Court held the baker had free exercise and free speech right to refuse to make the cake, Graebe says the Supreme Court ducked the issue a narrow ruling that sparred Smith.
They found a really narrow ground for holding that the Civil Rights Commission in Colorado was tainted by religious bias, he says.
But the court has changed since the Masterpiece Cakeshop case was decided, Graebe explained, and another case decided in June, 2021, Fulton v Philadelphia, had many people believing Smith would be overturned.
People thought, well now well get a majority of the court to overturn Smith and hold that people in these circumstances are entitled to a religious exemption, Graebe says. The big area where this comes up, of course, is complying with anti-discrimination laws that extend protections to LGBTQ+ people. But with Fulton the court issued another narrow ruling.
The Fulton case involved two foster care agencies that the city of Philadelphia hired that would not accept same-sex couples as foster parents. In the end, one of the agencies, Catholic Social Services (CSS), refused to comply with nondiscrimination requirements that are part of all foster-care agency contracts.
The case raised the question whether Smith should be overturned, whether CSSs free exercise rights were violated, and whether the government was breaking the law by making statements that directly contradict an agencys religious beliefs.
The Court decided that Philadelphias refusal to contract with CSS for foster case services, unless they certify same-sex couples as foster parents, was a violation of the Free Exercise Clause.
Graebe believes the Smith case was decided in large part due to the war on drugs and that it is vulnerable today. The problem of overturning it, he says, lies in determining compelling interest.
Freedom of religion is now a much more prominent issue, especially among conservatives, than it was in 1990. And I think that changes the calculus, he says, cautioning that if Smith were overturned the door could be opened for a number of cases involving ludicrous claims.
During the civil rights movement, for instance, there were people who objected to some of the civil rights act provisions of 1964 on religious grounds, claiming that white supremacy was a plank of their religious beliefs.
How do you not go back to people being able to exempt themselves on religious basis for any law they dont want to comply with? Graebe asks. Its a messy area of the lawand the courts, and government, is constrained in how they respond.
These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.
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Testing the waters of conventional wisdom and the law - Manchester Ink Link
Posted: at 5:14 pm
A third round of subpoenas issued last week by House Speaker Nancy Pelosis select committee on the Jan. 6 riot at the U.S. Capitol has revealed the committees investigation for what it is: a brazen attack on the First Amendment rights of peaceful, law-abiding Americans.
Indeed, its not too much to say that the committees targeting of ordinary Americans poses a far greater threat to freedom and democracy than the Capitol riot ever did.
Why? Because the subpoenas were issued to a pair of private citizens, right-wing activist Ali Alexander and a man named Nathan Martin, as well as a group the men were associated with called Stop the Steal, which had applied for and received a permit from the U.S. Capitol Police to hold a rally on the Capitol grounds on Jan. 6.
Ali and Martin didnt take part in the riot and have no connection to it. Both men were indeed present at the Capitol grounds that day, along with hundreds of thousands of other people, to host a rally for which, I repeat, their organization applied for and received a permit from U.S. Capitol Police. But their permitted event never even took place.
As Martin told me back in January, about a week after the riot, he was setting up for the event when he saw people entering the U.S. Capitol building from a side door, which didnt seem right to him. Shortly thereafter, Martin received a text that the event was canceled and he left the Capitol grounds. He didnt find out about the riot and the breach of the Capitol until he got back to his hotel room later that day.
Martin, an Iraq War veteran and city councilman in Shelby, Ohio, was much like the vast majority of people who came to Washington, D.C., to protest the election in January. He wasnt there to cause trouble or incite violence, and he didnt think the protest would change the outcome of the election. His hope, he told me, was that Republican lawmakers would put their objections on the record and go through claims of election fraud line by line, especially from states where instances of fraud and irregularities were well-documented.
I didnt have any delusions of grandeur that Vice President Pence would come swooping in and change the results or anything like that, he said. Although there had been some constitutional talk about whether that was allowed or not, I didnt feel constitutionally that there was room for that.
That is, Martin expected Jan. 6 to be what the overwhelming majority of protesters that day expected it to be: a peaceful, orderly, and permitted demonstration at the U.S. Capitol to make their voices heard. The corporate medias attempt to smear every person who was present on the Capitol grounds that day as an insurrectionist is flatly appalling and utterly fantastical.
But it hasnt stopped them from trying. Martin and other permit applicants for planned rallies on Jan. 6 at the Capitol grounds were badly misrepresented in a BuzzFeed article last month, portrayed as shadowy figures who were evasive or deceptive in their permit applications and conversations with Capitol Police.
By contrast, what the permit applications, which BuzzFeed obtained through a lawsuit against the Capitol Police, and BuzzFeeds own reporting reveal is that a number of unaffiliated groups applied for and received permits to hold various rallies on the sprawling Capitol grounds that day. Martin told BuzzFeed he hadnt seen the permit application and didnt know why his name was on it, and it appears that communications between event organizers was not without some confusion in the weeks leading up to the event which you would expect with a hastily planned event with many moving parts.
But there is so far zero evidence any of these organizers had anything to do with the comparatively small number of people who used the occasion to assault police and breach the U.S. Capitol itself. Tens of thousands of people, possibly more, were on the Capitol grounds that day. Yet nine months after the riot, fewer than 200 people have been charged with assaulting Capitol Police officers and the vast majority of the 650 named defendants are being charged with misdemeanor trespass or other minor violations that carry no prison time.
Nevertheless, last week after news broke of the Select Committees subpoenas, nearly the entire corporate press, as if with one voice, lumped in Martin and Alexander, who have been charged with nothing, with the rioters.
If our news media had any interest in holding power to account, the headlines and coverage would have focused instead on how Democratic lawmakers on the committee, together with NeverTrump GOP Reps. Liz Cheney, R-Wyo., and Adam Kinzinger, R-Ill., are using their subpoena powers to target law-abiding Americans who wished to exercise their right to peacefully assemble and protest.
Lets be clear on this point. Since its inception, the Select Committee has amounted to a show-trial for House Democrats and leading NeverTrumpers who are attempting to make examples out of ordinary citizens who dared to protest the election, just as President Bidens Justice Department is throwing the book at anyone connected to the events of Jan. 6 to make examples of them.
The message is clear: if you protest, if you exercise your First Amendment rights for a cause that those in power have not approved, you will be targeted by the government, smeared and harassed by the media, and made into a spectacle pour encourager les autres.
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The Purpose Of The Jan. 6 Select Committee Is To Suppress Free Speech - The Federalist
Former Trump press secretary says Psaki may have violated Hatch Act with praise for McAuliffe – Washington Times
Posted: at 5:14 pm
President Trumps former press secretary Kayleigh McEnany on Thursday criticized her immediate successor, current White House press secretary Jen Psaki, suggesting she violated a federal law that bans government employees from political campaigning.
Ms. McEnany said in a tweet that Ms. Psakis signaling of support for Democratic Virginia gubernatorial candidate Terry McAuliffe may have violated the Hatch Act. The law prohibits government workers from using their position to support political candidates.
Why does the media not hold @PressSec accountable for potential Hatch Act violations? She has twice advocated for political candidates from the podium, she tweeted.
There is no problem in engaging in First Amendment political activity, but it must be done separate and apart from the podium, Ms. McEnany continued.
Speaking with reporters Thursday, Ms. Psaki said the Biden administration is going to do everything we can to elect Mr. McAuliffe and we believe in the agenda hes representing.
It is not the first time Ms. Psaki may have fun afoul of the Hatch Act. In March, Citizens for Responsibility and Ethics in Washington, a government watchdog group, sent a letter to the Biden administration complaining about her tweets opposing the effort to recall California Gov. Gavin Newsom, a Democrat.
Ms. McEnany also sparked concerns about potential Hatch Act violations during her tenure as press secretary. In late 2020, she served as both White House press secretary and an adviser for Mr. Trumps presidential campaign.