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Category Archives: First Amendment
Posted: May 14, 2020 at 5:12 pm
Last Thursday, Justice Clarence Thomas suggested that a major First Amendment doctrine should be abandoned, and that the right to free speech be significantly shrunk in the process. Its the second time hes done so in a little over a year, and at least the third time Thomas has called for a major slice of Americans free speech rights to be cut away.
His latest call to reduce free speech rights came in United States v. Sineneng-Smith, a case involving an immigration lawyer who fraudulently charged her clients a total of $3.3 million to file for a change in their immigration status that she knew they were ineligible to receive. The Court ruled unanimously, and on narrow procedural grounds, to toss out a ruling benefiting this immigration lawyer.
Though Thomas joined Justice Ruth Bader Ginsburgs unanimous opinion, he also wrote a separate opinion joined by no other justice. In it, he calls for the Court to reconsider its overbreadth doctrine, a First Amendment doctrine that allows courts to cast an especially skeptical eye on laws that restrict free speech. In doing so, Thomas admitted that he is now calling for the Court to reconsider a doctrine that hes supported in the past.
As a general rule, courts are reluctant to accept facial challenges to an allegedly unconstitutional law challenges that seek to invalidate the law in all of its applications rather than simply holding that the court will not apply that particular law to a particular plaintiff. The overbreadth doctrine makes it easier to bring a facial challenge under the First Amendment, and thus provides heightened protection against laws that burden free speech. Thomass opinion would permit many laws that burden free speech to remain on the books, even after a court determines that they would chill a significant amount of free expression.
Its not the first time Thomas has articulated a narrow vision of the First Amendment. In 2019, he attacked his Courts decision in New York Times v. Sullivan (1964), one of the Supreme Courts foundational First Amendment decisions, which protects journalists against malicious libel suits that could stifle a free press.
Likewise, in Brown v. Entertainment Merchants Association (2011), Thomas suggested that children and teenagers have no First Amendment rights whatsoever. The practices and beliefs of the founding generation establish that the freedom of speech, he wrote in his Brown dissent, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors parents or guardians. No other justice joined Thomass opinion in Brown.
These are serious attacks on the right to free speech. Thomass Brown opinion alone, if it were embraced by a majority of his Court, would strip free speech rights from nearly 74 million individuals.
So its striking that there is one other case where Thomas took a very expansive view of the First Amendment. In Citizens United v. Federal Election Commission (2010), the Supreme Court held that the right to free speech includes the right of corporations to spend unlimited money on influencing elections. In a partial dissenting opinion, Thomas complained that Citizens United does not go far enough.
Justice Thomas, in other words, envisions a much weaker First Amendment for children, journalists, and, indeed, for much of the country. But when wealthy donors seek relief from campaign finance restrictions, Thomas takes a maximalist view of their First Amendment rights.
Thomass opinion in Sineneng-Smith involves a fairly technical doctrine, but its worth taking a moment to understand that doctrine, and Thomass critique of it, because that critique is at odds with the view Thomas takes in Citizens United.
As a general rule, federal courts hear two types of constitutional challenges claiming that a federal or state law violates the Constitution. Facial challenges seek to invalidate a specific legal provision in its entirety. If a plaintiff prevails in such a challenge, then the legal provision they challenged ceases to operate altogether.
By contrast, when a court declares that a law is invalid as applied to a particular plaintiff, that means the law cannot be applied in the specific circumstances that arose in that particular case. But there may still be other circumstances where the law can constitutionally be applied to other individuals.
Ordinarily, courts are reluctant to declare a law invalid on its face. As the Supreme Court explained in United States v. Salerno (1987), a facial challenge to a legislative Act is ... the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.
Think of it this way. Suppose a state passes a law providing that bail for all persons charged with theft shall be at least $100,000. Now suppose that two different criminal defendants challenge this law under the Eighth Amendment, which prohibits excessive bail.
The first defendant is a teenager charged with shoplifting a pack of gum from a convenience store. The second is a notorious art thief, with multiple aliases and connections across the globe, who is charged with stealing tens of millions of dollars worth of famous paintings. In these circumstances, a $100,000 bail would clearly be excessive for the first defendant. But, if anything, its probably too low for the second defendant.
Because there are at least some sets of circumstances where a $100,000 bail would be appropriate for a criminal defendant charged with theft, no one could bring a facial challenge to the state law setting this minimum bail amount. But the shoplifiting defendant could bring an as-applied challenge claiming that, as applied to their rather insignificant offense, a bail of $100,000 is excessive.
And that brings us to the overbreadth doctrine. That doctrine provides that Salernos high bar for facial challenges does not apply to First Amendment lawsuits. Rather, as the Supreme Court explained in United States v. Stevens (2010), a law that burdens free speech may sometimes be facially invalidated if a substantial number of its applications are unconstitutional.
The reason for this overbreadth doctrine is that the Court believes free speech rights to be particularly fragile. If courts allow statutes that ban some forms of speech to stand, the mere existence of those laws could frighten individuals away from exercising their First Amendment rights. As the Court explained in Broadrick v. Oklahoma (1973), the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.
Nevertheless, Thomas raises a number of objections to this overbreadth doctrine in his Sineneng-Smith opinion. He claims it is untethered from the text and history of the First Amendment, and that, rather than being rooted in the way the First Amendment was originally understood, the overbreath doctrine first emerged in the mid-20th century.
One of Thomass primary objections to the doctrine is that he believes the Salerno standard should apply universally indeed, Thomas criticizes the very idea that anyone could bring a facial challenge against any law. Our modern practice of strik[ing] down legislation as facially unconstitutional bears little resemblance to the practices of 18th and 19th century courts, according to Thomas.
Fair enough. Read in isolation, the new viewpoint that Thomas announced in Sineneng-Smith could be seen as a call for judicial restraint an assertion that courts should be more cautious before they toss out an act of a legislature altogether.
But in Citizens United, Thomas sang a very different tune.
The thrust of Thomass opinion in Citizens United, the landmark Supreme Court decision that gutted much of Americas campaign finance laws, is that as-applied challenges are insufficient to protect donors whose political spending is disclosed to the public, and that the Supreme Court should have declared a federal campaign finance disclosure law facially invalid.
The bulk of Thomass partial dissent in Citizens United tells horror stories about conservative donors whose donations became public, and who then suffered social or financial consequences. Thomas alleges that a handful of donors to a campaign opposing marriage equality received threats, and he claims that the director of a musical theater company who donated to this campaign was forced to resign after artists complained to his employer. Thomas also claims that a restaurant manager who donated to this anti-LGBTQ campaign was forced to resign after protesters targeted the restaurant.
A majority of the Court concluded that these incidents were insufficient reason to strike down disclosure laws on their face although the Citizens United majority added that as-applied challenges would be available if a group could show a reasonable probability that disclosure of its contributors names will subject them to threats, harassment, or reprisals from either Government officials or private parties.
Thomas, however, rejected this conclusion. The Courts promise that as-applied challenges will adequately protect speech is a hollow assurance, he wrote, adding that the advent of the Internet enables prompt disclosure of expenditures, which provide[s] political opponents with the information needed to intimidate and retaliate against their foes.
In Thomass view, disclosure laws must be struck down on their face, in order to prevent campaign donors from facing harassment.
Whatever the merits of this position which was rejected by all eight of Thomass colleagues in Citizens United it is difficult to reconcile the position Thomas took on disclosure laws in Citizens United with the broad concerns with our modern practice of strik[ing] down legislation as facially unconstitutional that he announced in Sineneng-Smith.
In fairness, Thomas does concede in his Sineneng-Smith opinion that he has previously joined the Court in applying the overbreadth doctrine. So his current opposition to First Amendment facial challenges appears to be a recent development. Perhaps, when Thomas hears another campaign finance case, he will rebuke his own analysis in Citizens United and admit that it is inconsistent with the views he expressed in Sineneng-Smith.
But, at the very least, it is enough to point out that Thomas took a maximalist approach to the First Amendment in Citizens United, and then took such a radically different approach in a more recent opinion.
A common thread running through Thomass First Amendment decisions indeed, a thread that runs through Thomass decisions on many topics is his belief that the Court has departed from the way the Constitution was understood by the generation that framed it. His primary complaint in Sineneng-Smith is that the overbreadth doctrine is untethered from the text and history of the First Amendment. Similarly, in McKee v. Cosby (2019), Thomas argues that a venerable Supreme Court decision protecting journalists from malicious libel suits was wrong because it did not apply the First Amendment as it was understood by the people who ratified it.
One overarching problem with Thomass project of trying to interpret that First Amendment as it was originally understood by the framing generation is that it is far from clear that such a thing is possible. And, if it is possible, there is considerable evidence that the framers understanding of the amendment was so narrow that modern-day Americans would find it unacceptable.
Under the English common law, which informed much of the founding generations understanding of early American law, the freedom of speech and of the press was largely understood as a right not to have the government stop an individual from publishing a particular statement. But once that statement became public, the individual who made it could still face legal consequences for their speech.
Early Supreme Court decisions interpreting the First Amendment accepted this limited view of free speech. As the Supreme Court concluded in Patterson v. Colorado (1907), the main purpose of the First Amendments guarantee of free speech and a free press is to prevent all such previous restraints upon publications as had been practiced by other governments, and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.
Of course, modern Supreme Court decisions reject this narrow view of the First Amendment, but they did not do so because modern-day justices developed a better understanding of how the framers understood the freedom of speech. Many First Amendment scholars have concluded that the task of figuring out that amendments original meaning is impossible. As Judge Robert Bork, the failed Supreme Court nominee and godfather of the conservative originalist movement, wrote in 1971, the framers seem to have had no coherent theory of free speech and appear not to have been overly concerned with the subject.
Yet while there is little clarity regarding the original understanding of the First Amendment, the framing generation does appear to have had very robust ideas about the legal rights of corporations. And these ideas are hard to square with the expansive vision of corporate rights that the Supreme Court, with Thomass enthusiastic support, embraced in Citizens United.
In a 2016 law review article, former Delaware Chief Justice Leo Strine and his former law clerk Nicholas Walter explain that there were no business corporations operating under so called general corporation statutes in the early United States. Rather, corporations were created by the government, and given detailed charters that their managers were obligated to follow with fidelity.
As the Supreme Court held in Dartmouth College v. Woodward (1819), a corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence.
For this reason, Strine and Walter conclude, Citizens United is out of step with the original understanding of the First Amendment, not because it reads the amendment itself too expansively, but because the framers would not have understood the modern Supreme Courts conclusion that a corporation possesses constitutional rights.
Thomas claims to root his opinions in the original understanding of the First Amendment, but its far from clear that the framing generation had a coherent understanding of that amendment. And in the one area where Thomas takes an unusually expansive approach to the First Amendment campaign finance there is considerable evidence that early Americans rejected Thomass understanding of corporate rights.
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Posted: at 5:12 pm
As the COVID-19 crisis stretches on, were seeing more conflict, more protests and particularly more online rancor in the debate over how and if public officials should open up society or government restraints on gatherings, from bowling leagues and bars to religious services and retail stores.
The First Amendments protection for free speech covers most of what we may say, whether its impolite, insulting, biased or uplifting, even commentary or forcefully expressed opinions that most of us would find repulsive or repugnant.
But one area not protected as free speech is called a true threat, words that cause a person to fear for their safety or life. In a crisis, we may find things we say are taken in a different context by police, prosecutors and juries than at other, less stressful times.
Unfortunately for those trying to measure their own remarks, setting out a precise definition for what constitutes a true threat has flummoxed even the U.S. Supreme Court. The result is a division of opinion in federal and state courts across the country.
Toss in the new machinations of social media, which remove the element of face-to-face confrontation, but also provide a degree of anonymity and lack of restraints and the lines dividing protected and unprotected speech blur even more.
Speech threatening bodily harm made to a specific person standing in front of you while you have a weapon for example, holding a knife and saying I have a knife and Im going to cut your throat leaves little doubt that its a true threat.
But what if the person at whom those same words are directed isnt nearby when the remark is made, but sees it hours or days later on social media? What if the speaker sets the words to music, posts the statement as part of a YouTube video and later claims it was just a form of anger control therapy even if the intended target (think you or me) took the threat seriously?
For many years, evidence that a statement could be judged as putting any reasonable person in fear was enough to support a conviction in many courts. But in 2015, the U.S. Supreme Court, in Elonis v. United States, focused on the intent of the person making the statement, effectively saying that consideration was important and perhaps essential when deciding if the speaker was indeed issuing a true threat.
But the high court didnt set out any means of measuring intent, leaving things hanging. Two years later, Justice Sonia Sotomayor wrote, in Perez v. Florida, where the court refused to reconsider the conviction of a man who threatened to blow up a liquor store, that while states must prove more than mere utterance of threatening words, some level of intent is required (and) the Court should also decide precisely what level of intent suffices under the First Amendment, noting that did not happen in Elonis.
All of that leaves many of us subject to state laws that dont include a requirement to consider what we might mean when we say it, just how a reasonable person would feel about our words. Got enough money or time to get to the Supreme Court? Such a conviction would seem likely to be thrown out.
Not the bright line between right and wrong that we should expect to see when it comes to criminal prosecutions.
Case in point: According to Kentuckys Lexington Herald Leader, Louisville lawyer James Gregory Troutman, 53, was charged April 22 with terroristic threatening for two Facebook posts directed at Gov. Andy Beshear.
Maybe some should ask Beshear in a press conference about his thoughts on William Goebel, Troutman was reported by police to have said in a post, For those of you who dont know the history its a good read. Goebel, shot to death in 1900, in is the only serving U.S. governor ever assassinated.
Police said Troutman also later posted, in a Facebook exchange about Beshear ordering photos to be taken of license plates of churchgoers flouting social distancing orders, With any luck the gov will be the one at whom the shooting will be directed.
Police said Troutman was threatening to commit a crime likely to result in death or serious physical injury to the Kentucky governor. But Troutmans lawyer said the man didnt say he was going to kill him.
If you were sitting on a jury considering the charges against Troutman, a 1969 Supreme Court decision in Watts v. United States might help you decide. In that Vietnam War-era case, a protester was charged with threatening President Lyndon Johnson for telling a rally that if they ever make me carry a rifle, the first man I want to get in my sights is LBJ.
The court later decided that Watts had engaged in a crude form of political hyperbole rather than utter a true threat. The justices identified what later came to be known as the Watts factors: The context in which the words were spoken, the reaction of those who heard the remarks and the certainty of the remarks.
They noted that Watts made his statements during a political rally, that those who overheard his remarks laughed and his statement was conditional rather than definitive.
Still today, some lower courts use the Watts factors to determine whether speech crosses the line into the realm of true threats, Freedom Forum First Amendment Fellow David Hudson notes.
Another kind of hyperbole: Wishing that a meteor will fall from the sky and injure or kill a certain person may well be what most of us would find hateful and morally wrong, but its safely protected under the First Amendment.
On the other hand, the Supreme Court found in 2003, in Virginia v. Black perhaps its most direct ruling about true threat that the state of Virginia could prosecute people for cross burning intended to intimidate or instill fear in others. Dissenting voices said cross burning is always unprotected speech since it can have no effect other than intimidating others, but the courts majority did not agree. Again, the intent of the speaker, as in Elonis, rather than the meaning to those receiving the message, was held most significant.
The justices did offer this definition: True threats are those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group.
Adding to the conflicted legal views over true threats was the 2019 refusal by the justices to consider an appeal by Jamal Knox, a Pittsburgh rap music artist convicted over lyrics in a song Fuck the Police, recorded in 2012 while facing weapon and drug charges. The song named arresting officers and included lyrics saying, Lets kill these cops cuz they dont do us no good / pullin out your Glock out cause I live in the hood and Ima jam this rusty knife all in his guts and chop his feet your shift over at 3 and Im gonna fuck up where you sleep.
Critics of Knoxs conviction note that other more widely recognized artists have used similar statements in their music without prosecution and that local courts generally dont understand the role of rap music in urban culture.
Officials cited Knoxs specific identification of the officers and in 2018 the Pennsylvania Supreme Court said his lyrics were threats, not political, social or academic commentary, nor are they facially satirical or ironic.
From armed protestors confronting state police officers in the Michigan capitol building to armed revelers at a Texas bar arrested in a SWAT raid, from angry crowds outside a number of gubernatorial residences to violent words on social media, the potential for threating actions and actual violence today is higher than ever.
So how to judge whether your words, expressive conduct (such as marching with signs or weapons) or violent social media posts are protected speech?
Colleagues at the Freedom Forums education unit provide a lesson plan for free to help you navigate those First Amendment true threat waters: In You Cant Say That?! you will learn about restrictions to freedom of speech in public life and the court cases that determined when and why those limits apply.
Bottom line: In the U.S., the First Amendment certainly protects your right to speak. But theres no absolute protection from the effects of what you say particularly when those words may put a specific person in fear of injury or death.
Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at email@example.com, or follow him on Twitter at @genefac.
Here is the original post:
What words make up a true threat? Well, that depends - The Mercury
Posted: at 5:11 pm
By Trevor Dunnell, For The Daily News
As law enforcement agencies around the state express their stance of not interfering with the church services, the Onslow County Sheriffs Office reminded their residents they will do the same.
Sheriff Hans Miller held a press conference on Tuesday explaining the departments stand on first amendment rights for residents in Onslow. It has not changed since the beginning of the stay-at-home order.
We have received calls from local church pastors about worship services and our answer was very clear from the beginning, we support the first amendment right to worship, said Miller. We support people's right to worship.
Miller added Gov. Roy Coopers guidance for church services during Phase One of reopening the state is that church services should take place outside unless it is impossible to do so.
Editors note: This coverage is being provided for free as part of our coronavirus coverage. Please consider supporting local journalism by purchasing a digital subscription to The Daily News. Our rates start as low as $1 a month.
On Monday, Cooper clarified the Phase One order does not prohibit multiple events from happening, in order to meet social distancing requirements of 10 or less people gathering inside.
According to Miller, deputies will not interfere with churches or limit how many people are allowed inside for worship.
What we suggest is as long as you maintain social distancing, it is perfectly fine to do so whether it is inside or outside, added Miller. If you are a family that lives together, then thats okay for you to to sit together.
Miller explained the main objective during reopening is to ensure everyone is being safe.
If you have people that want to congregate to worship or shop, as one human being to another I would say continue social distancing and advise people to wear any type of mask that can cover up how the virus can spread, added Miller.
Posted: at 5:11 pm
May 14 (UPI) -- There is growing concern in our nation about the unconstitutional overreach of the judiciary in religious affairs. In courtrooms around the country, activist judges are rendering judgments that are collectively eroding the right to religious freedom protected by the First Amendment. The commissions formed to oversee the appointments of these judges are often failing to hold them accountable.
One such travesty is playing out in our nation's capital. Judge Laura Cordero of the Washington, D.C. Superior Court issued an unconstitutional summary judgment ruling in the case 2011 CA 003721 B, which effectively gave legitimacy to one religious faction over another in an ongoing schism within the Unification Movement founded by the Rev. Sun Myung Moon. Entering its ninth year, the case explicitly involves questions of religious polity, structure and theology.
Historically, courts have properly abstained from any involvement in the internal affairs of religious entities, as required by the First Amendment. Yet, despite the facts being disputed by both parties, Cordero issued a ruling that decided the issues in question without a jury trial. At a minimum, Cordero should have held a hearing to consider evidence and arguments of the parties involved and should have followed proper protocol for summary judgment, which requires the party seeking summary judgment to show there is no genuine dispute of any material fact.
Cordero also ignored the appellate court's caution that the case must be dismissed if "it becomes apparent to the trial court that this dispute does in fact turn on matters of doctrinal interpretation or church governance."
As such, Cordero set a dangerous legal precedent by unilaterally ruling on the doctrine, hierarchy and leadership of a religious entity. Not only has she trampled on the First Amendment by involving herself in a religious schism, but she also engaged in religious discrimination by favoring one side's unproven claims over the other's evidence-backed claims.
Compounding this injustice, the D.C. Commission on Judicial Disabilities and Tenure issued its report to President Donald Trump awarding Cordero a "well qualified" reappointment on April 27. This decision was rendered despite numerous factual misrepresentations and 5,000 emails to the commission objecting to her reappointment due to First Amendment violations and her religious bias in the above case. Though thousands of people of faith collectively decried her discrimination against their faith, their voices were callously dismissed by the commission. But the commission's report reveals a government agency contradicting itself and issuing falsehoods to the president.
One example of the report's many contradictions pertains to the 5,000 emails referenced above. The report says the emails the commission received "sharply criticized Judge Cordero's legal reasoning," but that legal reasoning "is not within the commission's purview to consider." Yet, in the very same paragraph, the commission states Cordero's ruling was "quite persuasive," as well as "well-reasoned, clear and concise and meticulous as to the facts and the law."
By what parameters, other than "legal reasoning," can the commission say her opinion was "quite persuasive" and "well-reasoned"? It is contradictory, dishonest and disrespectful for the commission to give this praise to Cordero, while, in the same paragraph, dismissing thousands of emails with the claim that "legal reasoning" is "not within the commission's purview to consider." And, it is simply irresponsible and inappropriate for the commission to praise the opinion issued by a judge against a party in a case that is ongoing.
The report contains many other falsehoods. According to the report, "Judge Cordero originally dismissed the case on lack of subject matter jurisdiction due to religious abstention." This is false. The case was dismissed by Judge Anita Josey-Herring in 2013, not by Cordero. The report claims that Cordero's decision "was affirmed on appeal." This is another outright falsehood. A cursory glance at the docket of the case reveals that Cordero's decision was never appealed. As such, there was no way for it to be "affirmed." Since no punitive action ever took place, there could have been no appeal.
All this information about judicial activity that is blatantly false or misattributed is being utilized to exaggerate the performance of a judge and to give her the highest possible rating.
The report on Cordero's reappointment by the commission reveals the worst elements of cronyism. Not only is the report riddled with contradictions and outright falsehoods, but it demonstrates a willingness to go to any length to rubber-stamp the reappointments of sitting judges, regardless of their performance. The examples here are a few of the misrepresented facts that aided in giving Cordero the highest possible rating; but one can only wonder what other facts were twisted to make her case.
A quick check on this commission's record concerning reappointments shows that 31 judges have come up for review in the last 13 years, and that every single judge was given the "well qualified" designation. According to the commission's own policy, the "well qualified" designation is reserved only for those judges "whose work product, legal scholarship, dedication, efficiency and demeanor are exceptional." If a judge ignores due process and violates the First Amendment and is yet considered "exceptional," what does that say about the integrity of our judicial system?
Judges should uphold the Constitution and follow proper judicial procedure. Oversight commissions should make every effort to conduct due diligence on judges' cases before reappointing them to the bench. We must hold judges and the judicial appointment process accountable so that this nation can continue to be an exemplar of religious freedom and the rule of law.
Howard C. Self is the president of Right To Believe, a not-for-profit organization fighting to protect the right to believe in one's religion without undue governmental interference. He has also held leadership roles at the Family Peace Association and in the Unification Movement, which are affiliated with the ultimate holding company that owns UPI.
Religious freedom is under threat in the courtroom - UPI.com
Posted: at 5:11 pm
High profile Wilmington attorney demands that Governor Carney lifts restrictions onreligious worshipping.
Today, in a six-page demand letter from its attorneys, the Committee To Save Christmas demanded that Governor Carney stop his illegal discrimination against religious worship, as well as peaceable protests by the faith community.
Declaring that fear of imprisonment prevented Christians from attending Church services on Easter Sunday, April 12, 2020, the Committee noted that Carney criminalized the communal celebration of Easter and barred citizens from gathering in their churches for this most holy day of the year. This must never happen again. With eight months now remaining before the communal celebration of Christmas, now is the time for Carney to take proper steps to allow religious worship inside churches, synagogues, and mosques, provided social distancing and other generally applicable health related precautions are responsibly practiced by the religious congregations. Otherwise, Christmas this year also will be criminalized here in Delaware.
More specifically, Carneys orders allow secular activities but not religious worship activities. Grocery stores, law firms, laundromats, liquor stores, and landscaping businesses, among others, continue to operate so long as they follow social distancing and other health-related precautions. But Carneys Orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of the other services. Under his Orders, a person can go out to a liquor store to buy beer but cannot go out to their church to worship God. Such a distinction cannot stand, because if beer is essential, so is Christmas.
While Carneys emergency Orders, criminalizing Easter worship and services within the walls of church sanctuaries, can be viewed as an honest mistake, the Committee urged him to correct that mistake and ensure it is not repeated in the future. Provided churches practice the generally applicable social distancing requirements, religious service attendance must be permitted, it demanded.
While the state has an obvious interest in preventing the spread of infectious disease, its restrictions of the fundamental right to communal worship must be the least restrictive means practically available. And, if the state permits social interaction for commercial or other purposes, as occurred here in Delaware, but denies similar social interaction for religious exercise, this is not using the least restrictive means to regulate First Amendment-protected activity and Carneys Orders are illegal, unconstitutional and cry out for correction.
As one federal court recently held If social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection. Tabernacle Baptist Church, Inc. v. Beshear, F.Supp.3d , 2020 WL 2305307, at *5 (E.D. Ky. May 8, 2020).
The time of emergency is coming to an end, and there are many months to thoughtfully prepare for a Fall surge of the virus. But the illegal hurried infringements of vital constitutional freedoms will remain on the books as precedents unless these past errors are corrected to return to the normal before this crisis arose. Absent those corrections being made the Committee expects legal action would be taken in federal court to prevent the repeat of the discriminatory mistakes of the past.
Read The Letter Here 2020_05_13_Carney demand letter signed
Posted: May 11, 2020 at 11:47 am
Submitted by William Elder.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances, wrote James Madison.
Strong clear words. Words often twisted to serve one political cause or another. These days it is the vociferous far right of the Republican Party, often religious conservatives. Religion, even their Protestant evangelical version of it, is alive and well in todays America, no fear except fear itself, as one President put it
Less clear is the jumbling together of freedom of speech, press, or the right of the people peaceably to assemble. Each could have used its own separate mention, clarification.
The press, reporting as best it can against the administrations all-out attempts to control, silence, or distort its factual examination of our shortcomings, is grappling with the right wings antipathy to fact itself, the truth regarding its failures and misgovernance, the gross incompetence of its leaders, especially top down.
The freedom of speech part, so bantered about by every side of every argument, forgets one key and vital right implied therein, though not implicitly stated: That implied right is: For your speech, however heartfelt, has the concomitant right to be ignored by all thoughtful men and women: We hear you; we understand; we choose to ignore your comments; we thank you! Next!
Petition(ing) the Government for a redress of grievances good or ill, substantive or frivolous if they were shingles they would keep us all dry for a thousand years, with a money-back guarantee for five hundred more! No Constitutional worry there.
This First Amendment is but one of the strong pillars driven into our political landscape by our Founders, not at the time of their Constitutional deliberations but forced upon them, as a required afterthought, an extended measure of not merely our structure of governance, but our invite to humanity come participate equally in it.
Posted: at 11:47 am
Would mandating public exposure of Russian hostile information operations in the United States violate the Constitutions First Amendment guarantee of free speech? At first glance, the question seems absurd how would the Bill of Rights protect Russian intelligence and propaganda operations?
But the issue arises because Russian messages aimed at American audiences may include comments from American sources, raising concerns that exposure would imply that the original authors of the content are part of a Russian disinformation campaign.
This could have a chilling effect on the original American authors right to free speech. They might be branded as fellow travelers a derogatory label from the Cold War or at the very least, useful idiots a term sometimes attributed to Lenin to describe nave individuals who were susceptible to Communist propaganda.
Neither label applies here. Unlike the early days of the Russian Revolution or Cold War era, todays Russian propagandists are not seeking to advance Communist ideology, but rather are intended to weaken its perceived foes. The American authors they cite are not advancing or defending Russian causes.
Russias hostile information operations are continuous and extend to a broad range of domestic issues. Russia aims to create confusion, foment distrust of all institutions, and deepen discord on just about every contentious topic, including national debates on race, immigration, policing gun control, and other issues. Russian efforts seek to amplify extreme positions, often magnifying dissonance and aggravating divisions by promoting the polar expressions of both sides of the issue. This is where domestic content is used.
The First Amendment issue recently came up in continuing discussions among participants in a workshop on Russias Weapons of Mass Deception that examined the threat of hostile Russian information operations and possible countermeasures. This was not new territory for them.
Most had long firsthand experience in this area. They had served in the White House, the State Department, United States Information Agency, the Pentagon, the CIA, the FBI, Voice of America and Radio Free Europe, as well as independent research centers under both Republican and Democratic administrations. They pointed out that the United States has a long history of countering Soviet and Russian disinformation, propaganda, and other influence operations targeting the West.
Among the options discussed, one of the most useful and least controversial countermeasures to Russian influence operations is public exposure. The public has a right to know what the Russians are doing, how they are doing it, and the scale of their activities. Current efforts contribute to awareness of Russian information operations but do not ensure public disclosure.
Exposure is not censorship. It does not prevent or regulate speech. It could be achieved by legally requiring self-disclosure, by mandating government exposure of foreign information operations, or by a combination of the two mandatory self-disclosure of Russian efforts and exposure of those Russian actors who do not comply.
Ample precedents exist for mandating transparency and limiting foreign interference. Persons and organizations operating in the United States on behalf of foreign governments must register as foreign agents. This law was passed in 1938 to preclude censorship.
The constitutional guarantee of free speech is generally considered also to include the right of Americans to receive speech from foreign speakers, including hostile governments. Imposing a disclosure requirement does not prevent this; it enables the public to evaluate the material better.
Other examples of the disclosure include campaign financing, the sponsors of political ads, and the routine voluntary practice by newspapers to label sponsored inserts that are paid for by foreign governments.
The United States rarely shuts down foreign news broadcasting in this country, even though the broadcasts may offer alternate viewpoints or criticism of U.S. policies.
However, the U.S. government has required RT and Sputnik, which are funded by the Russian government, and CGTN, which is funded by the government of China to register as foreign agents. This is not because of foreign-government funding, but because of a judgment that, unlike the BBC and the other foreign broadcasters, these three are responsive to current foreign-government policy goals. They are not independent.
This does not mean they cannot operate in the United States. Indeed, a Midwest radio broadcaster transmits Sputnik news daily. They must identify themselves.
While discussants were comfortable with the government exposing foreign information campaigns, they did not want to see exposure become a means of belittling or vilifying Americans whose content might be repeated in part or in whole, correctly or out of context, by Russian operators. Close oversight of any effort could be required to ensure that selective exposure is not abused to support political agendas. All of the respondents are mindful of the current partisan environment.
The lack of any effective American response could encourage Russia as well as other adversaries of the United States to continue or escalate their campaigns. Exposing Russian activities is a matter of policy and politics, not the Constitution or the law.
First Amendment concerns are important, but they do not protect hostile information campaigns by foreign actors, nor are they a legal excuse for inaction by the United States.
Brian Michael Jenkins is a senior adviser to the president of the nonprofit, nonpartisan RAND Corporation.
Posted: at 11:47 am
Under FCC regulations, political calls can be made to residential numbers. But, the commission argues, cellphones present different privacy interests, and robocalls to them are much more intrusive. At the same time, the number of households that dont have landlines is exploding, so the ability to call landlines is less valuable than it was.
After the 2015 amendment was enacted, the AAPC brought a suit in a federal court in North Carolina, asking the court to strike down the entire robocall ban. Its argument deployed one of the most powerful and elusive concepts in First Amendment law: the idea of a content-based restriction on speech.
Content basis as a legal category originated with a 1972 case called Police Department of the City of Chicago v. Mosley, a challenge to a Chicago ordinance that banned picketing within 150 feet of a schoolunless the picketing was part of a labor dispute. The Supreme Court unanimously struck down the ordinance; in an opinion for seven justices, Justice Thurgood Marshall wrote, Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.
Garrett Epps: The important First Amendment principle now at risk
Since Mosley, the Court has evolved a rule: A content-based restriction on speech is presumptively invalid. This rule would be more useful if it defined what content-based means. For years after Mosley, it seemed to be a useful shorthand for two ideas: subject-matter-based and viewpoint-based. Government can sometimes regulate speech because of what its aboutfor example, it can restrict the office mailboxes of its employees to documents concerning business. Usually, however, it cannot, and it can virtually never restrict speech because it disapproves of the speechs point of view. Thus, a 1988 case, Boos v. Barry, struck down a District of Columbia ordinance that banned any demonstration or sign near a foreign embassyif the demonstration or sign criticized that foreign government.
Viewed this way, the notion of content-based was useful. But the ambiguity of the wording opened it up to play a role in the remarkable evolution of Justice Anthony Kennedy.
Kennedy, for all his endearing traits, was not a subtle thinker. In fact, his jurisprudence calls to mind an ungenerous comment by Justice Oliver Wendell Holmes Jr. about his colleague Justice John Marshall Harlan. Holmes compared Harlans intellect to a powerful vise the jaws of which couldnt be got nearer than two inches to each other.
As early as 1991, Kennedy was signaling that he believed the First Amendment was in essence absolute, no matter how important the interest the government was protecting. Unless the law fell into one of the few categories of unprotected speechdefamation, for example, or incitement to lawless actionthe government could not regulate it at all, regardless of how urgent the need. Even a law that passed strict scrutiny, he wrote in a separate opinion in a case called Simon & Schuster v. Members of New York State Crime Victims Board, should fall, for resort to the test might be read as a concession that States may censor speech whenever they believe there is a compelling justification for doing so.
Divorcing couples have First Amendment right to disparage each other on social media, SJC rules – The Boston Globe
Posted: at 11:47 am
Divorcing couples have a First Amendment right to disparage each other on social media even if probate judges are worried the bitterness will impact the mental health of children caught between their warring parents, the states highest court has ruled.
In a unanimous ruling, the Supreme Judicial Court said free speech rights were wrongly curtailed by a non-disparagement order forbidding the husband or wife from posting about the divorce on Facebook and other social media sites until their child turned 14. At the time the order was issued, the child was a toddler, the SJC said.
We conclude that the nondisparagement orders at issue here operate as an impermissible prior restraint on speech, the SJC ruled. The judge put careful thought into his orders in an effort to protect a child caught in the middle of a legal dispute who was unable to advocate for himself[but since] there was no showing of an exceptional circumstance that would justify the imposition of a prior restraint, the nondisparagement orders issued here are unconstitutional.
The social media ban was crafted by two Norfolk Probate and Family Court judges arising from the divorce between Ronnie Shakand his former wife, Masha M. Shak, who had one son born in 2017 during their 15-month marriage, records show.
In 2018, Ronnie Shak made multiple Facebook postings accessed by members of the former couples synagogue, Masha Shaks relatives, and a Facebook group with more than 700 members. The postings accused Masha Shak of wrongly blocking Ronnie Shak from seeing their son, leading Probate and Family Court Judge Virginia Ward to issue a two-paragraph order that banned both from posting any comments, solicitations,solicitations, references or other information regarding this litigation on social media."
Misha Shak sought a contempt citation when Ronnie Shak posted on Facebook after Wards order. Judge George Phelan then took up the matter and issued an 11-page order banning social media postings until the couples son turned 14. Phelan also put the ban on hold so the SJC could review the constitutionality of his decision, which he said he believed was necessary but raised significant legal issues that the top state court must address.
In a 13-page ruling written by Justice Kimberly S. Budd, the SJC said government has very limited authority to stop someone from publicly expressing their views under the First Amendment and Article 16 of the states constitution. Prior restraint is acceptable when harm is immediate and cannot be prevented by any means other than suppressing the free speech rights, the court noted.
But there was no evidence in this case, the court said in the decision issued Thursday.
The potential impact on a childs mental health at some point in the future does not meet that high legal threshold, especially in this case where the child cannot on his own access social media and when no information has been produced showing a current link between Facebook postings and proof of an emotional harm to the child, the court noted.
Budd added: As important as it is to protect a child from the emotional and psychological harm that might follow from one parents use of vulgar or disparaging words about the other, merely reciting that interest is not enough to satisfy the heavy burden of justifying a prior restraint."
The court noted that probate judges - and litigants - may be able to curtail social media postings under other laws, by reaching a mutually agreed upon non-disparagement order, or by civil lawsuits for emotional harm. Judges can also caution the parents their social media postings will impact custody decisions, the SJC said.
But none of the laws are even necessary, the court noted, if the parents recognize whats most important during divorce litigation - their children.
"The best solution would be for parties in divorce and child custody matters to rise above any acrimonious feelings they may have, and, with the well-being of their children paramount in their minds, simply refrain from making disparaging remarks about one another,'' the SJC said.
John R. Ellement can be reached at firstname.lastname@example.org. Follow him on Twitter @JREbosglobe.
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Divorcing couples have First Amendment right to disparage each other on social media, SJC rules - The Boston Globe
Posted: at 11:47 am
I was rereading one of my favorite opinionsJustice Jackson's dissent in U.S. v. Ballard (1944)and I thought I'd pass it along. The defendants were convicted for using the mails to defraud people into joining (for money) the "I Am" movement. The alleged false claims were,
that Guy W. Ballard, now deceased, alias Saint Germain, Jesus, [and] George Washington, had been selected as a divine messenger; and that the words of the alleged divine entity, Saint Germain, would be transmitted to mankind through the medium of Guy W. Ballard;
that [the Ballards], by reason of their alleged high spiritual attainments and righteous conduct, had been selected as divine messengers through which the words of Saint Germain would be communicated to mankind under the teachings commonly known as the "I Am" movement;
that [the Ballards] had, by reason of supernatural attainments, the power to heal persons of [incurable] diseases , and had in fact cured hundreds of persons .
The court concluded that it was permissible to convict the (surviving) Ballards based on a showing that they didn't sincerely believe what they were saying, though the jury couldn't consider the truth or falsehood of what they were saying. Justice Jackson dissented:
I should say the defendants have done just that for which they are indicted. If I might agree to their conviction without creating a precedent, I cheerfully would do so. I can see in their teachings nothing but humbug, untainted by any trace of truth. But that does not dispose of the constitutional question whether misrepresentation of religious experience or belief is prosecutable; it rather emphasizes the danger of such prosecutions.
In the first place, as a matter of either practice or philosophy I do not see how we can separate an issue as to what is believed from considerations as to what is believable. The most convincing proof that one believes his statements is to show that they have been true in his experience. Likewise, that one knowingly falsified is best proved by showing that what he said happened never did happen.
How can the Government prove these persons knew something to be false which it cannot prove to be false? If we try religious sincerity severed from religious verity, we isolate the dispute from the very considerations which in common experience provide its most reliable answer.
In the second place, any inquiry into intellectual honesty in religion raises profound psychological problems. [I]t is not theology and ceremonies which keep religion going. Its vitality is in the religious experiences of many people [:] " conversations with the unseen, voices and visions, responses to prayer, changes of heart, deliverances from fear, inflowings of help, assurances of support, whenever certain persons set their own internal attitude in certain appropriate ways."
If religious liberty includes, as it must, the right to communicate such experiences to others, it seems to me an impossible task for juries to separate fancied ones from real ones, dreams from happenings, and hallucinations from true clairvoyance. Such experiences, like some tones and colors, have existence for one, but none at all for another. They cannot be verified to the minds of those whose field of consciousness does not include religious insight. When one comes to trial which turns on any aspect of religious belief or representation, unbelievers among his judges are likely not to understand and are almost certain not to believe him.
And then I do not know what degree of skepticism or disbelief in a religious representation amounts to actionable fraud. Belief in what one may demonstrate to the senses is not faith. All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such matters is to a very different plane of credulity than is invoked by representations of secular fact in commerce.
Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop's fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges. It is hard in matters so mystical to say how literally one is bound to believe the doctrine he teaches and even more difficult to say how far it is reliance upon a teacher's literal belief which induces followers to give him money.
If the members of the ["I Am"] sect get comfort from the celestial guidance of their "Saint Germain," however doubtful it seems to me, it is hard to say that they do not get what they pay for. Scores of sects flourish in this country by teaching what to me are queer notions. It is plain that there is wide variety in American religious taste. The Ballards are not alone in catering to it with a pretty dubious product.
The chief wrong which false prophets do to their following is not financial. The collections aggregate a tempting total, but individual payments are not ruinous. I doubt if the vigilance of the law is equal to making money stick by over-credulous people.
But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in their humdrum lives. They live in mental confusion or moral anarchy and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow.
The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.
I do not doubt that religious leaders may be convicted of fraud for making false representations on matters other than faith or experience, as for example if one represents that funds are being used to construct a church when in fact they are being used for personal purposes. But that is not this case, which reaches into wholly dangerous ground.
When does less than full belief in a professed credo become actionable fraud if one is soliciting gifts or legacies? Such inquiries may discomfort orthodox as well as unconventional religious teachers, for even the most regular of them are sometimes accused of taking their orthodoxy with a grain of salt. I would dismiss the indictment and have done with this business of judicially examining other people's faiths.
Originally posted here:
The Price of the First Amendment "Is That We Must Put Up With a Good Deal of Rubbish" - Reason