Category Archives: First Amendment

A conservative birth clinic operates in a building in Brookline; city councillors seek to keep one from opening in Cambridge. (Photo: Google)

The City Council voted unanimously to continue a hearing wrought with passionate debate about whether limited resource pregnancy centers actually provide options to clients or push people away from getting abortions. Tuesdays hearing reviewed an ordinance proposing a ban of LRPCs on the basis that they engage in deceptive practices, similar to legislation that Somervilles City Council passed in March.

The sites, also called crisis pregnancy centers, claim to support pregnant people regardless of their decisions while actually pushing people away from abortions, the ordinance alleges. City Solicitor Nancy Glowa said there is a lack of clarification in the proposed policy order defining deception that would make proceeding with it difficult.

There are no such clinics in Cambridge or Somerville, but at a June meeting, councillors identified at least nine in the state, one being as close as Brookline.

The several speakers who gave public comment, ranging from workers at pregnancy centers to Harvard law students, all opposed the proposal. Diana OToole, the executive director for the Boston Center for Pregnancy Choices, said her center creates a safe space for [people] to really think through their decision whether or not to have the baby and give it up for adoption, whether or not to keep the baby, and we provide resources to enable them to do that. OToole referred to some services the center provides as after-abortion healing counseling.

Nate Bartholomew, a Harvard Law student, said the ordinance would violate the First Amendments freedom of speech clause.

Other speakers falsely said that Planned Parenthood, an organization that unlike LRPCs offers services that include abortion, engage in deception by hiding evidence of trafficking and purposely withholding ultrasound images.

City councillor Patty Nolan said she was infuriated by the lies about Planned Parenthood, which provides a full range of services.

Planned Parenthood provides support for all pregnant people who are seeking options. In fact, I have sat with people in those counseling sessions, and they ask for advice and recommendations, Nolan said. They are not pushed one way. Its here are some options, here are the various things you can be thinking about but that is not what crisis pregnancy centers do.

By comparison, deception is at the heart of the typical [LRPC] business model. This is about deceptive practices, lack of health licensures, no medical staff on site or on payroll, and no requirement to keep patient confidentiality in an extremely volatile time, vice mayor Alanna Mallon said.

Councillor Marc McGovern agreed, saying he has worked with Planned Parenthood in his decades of social work and found them to be nothing but professional. I do find it a little ironic for folks to come up and say theyre being misrepresented and then go on to misrepresent another organization, councillor Marc McGovern said.

I guess my question is, appreciating the First Amendment: Does that mean that people can falsely advertise and deceive to get people in the door to their business, to offer something different than what they are saying they offer publicly? McGovern said. Certainly people have the right to believe and say whatever they want under the First Amendment, but I dont think youre allowed to deceive people as an organization or as a business.

In her response to the ordinance, Glowa said the proposals prohibition of LRPCs would make it a content-based regulation of protected speech, which could violate the First Amendment because it would prevent the issuance of permits or licenses as well as limit the content of written or oral statements by the centers.

To hold up against a legal challenge, the ordinances language would need to be more tightly tailored and need to show that it furthers a compelling interest by using the least restrictive means to achieve that interest, Glowa said.

Council decided to continue the debate in a later meeting and asked Glowa to reach out to the City of Somerville about how it was able to craft an ordinance that passed.

This post was updated Sept. 27, 2022, to correct attribution of some comments to city councillor Patty Nolan andcorrect the spelling of DianaOTooles name.

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First Amendment rights of conservative clinics needs to be addressed before a ban can be voted - Cambridge Day

LocalFramingham City Council is hoping to reduce panhandling on city roadways. (Craig F. Walker/Globe Staff)

Framingham City Council passed an ordinance last week with the goal of stopping beggars from approaching cars, but its not like previous anti-panhandling laws which have been struck down.

Instead of restricting panhandling itself, the law limits pedestrian entry into roadways on most major roads in the city, making it illegal to walk along a road or get within five feet of a car if a sidewalk, island, median, or other such option is available.

Those who break the law would be subject to a $50 fine for the first offense, a $100 fine for the second, and a $300 fine for any subsequent offenses.

The law targets what city councilors have called aggressive solicitation on roadways, which they say is threatening public safety.

Over the past year, there has been a dramatic increase in incidents of aggressive and unsafe solicitation that create public safety hazards, especially the aggressive solicitation of cars in traffic on major roadways throughout Framingham, the Framingham City Council Ordinances and Rules Subcommittee wrote in a June 2022 letter to the larger council.

The new law has been signed by the mayor and goes into effect immediately, according to Framingham SOURCE, but it will need to be reviewed by the Massachusetts attorney general.

Even so, the law was designed to withstand legal challenges that other Massachusetts cities attempts at restricting begging have not.

Back in 2015, both Lowell and Worcester tried to ban panhandling in certain public spaces, but both of the cities ordinances were struck down after the American Civil Liberties Union of Massachusetts (ACLUM) challenged them.

In Lowells case, it tried to ban begging entirely in its downtown district, as well as prohibit aggressive panhandling. But a federal judge deemed it unconstitutional under the First Amendment right to free speech.

Worcester tried to make panhandling illegal outside banks and theaters, outlaw aggressive panhandling, and make it illegal to stand or walk on a traffic island or roadway if you are not crossing. Again, the law was struck down under the First Amendment by a different federal judge.

Then, in 2020, a Fall River law which criminalized begging was challenged by the ACLUM, and was struck down by the states highest court for violating the right to free speech.

This led Brockton City Council to repeal a similar law earlier this year for fear it wouldnt withstand legal challenges.

After proposing an initial ordinance with language much like the laws which had been deemed unconstitutional, Framingham City Council asked both their city solicitor and an independent legal group to evaluate their law.

Both the legal group and the city solicitor wrote back to the council saying that they didnt think the law would withstand legal challenges based on the Lowell, Worcester, and Fall River rulings.

The problem, the lawyers said, is that these laws were content-based, meaning they targeted a particular type of speech, in this case, panhandling.

For such a law to withstand a legal challenge, they said, courts have ruled that cities must define a specific behavior which causes danger to the public and prohibit it in the least restrictive way. Additionally, they must show that current laws that would restrict dangerous behavior, such as assault, are insufficient for addressing the behavior.

In response, city officials crafted a new, content-neutral law they say addresses public safety issues with panhandling while applying the law equally to all pedestrians and maintaining the right to use medians and sidewalks.

Please keep in mind that the proposed Median Safety ordinance may also be subject to challenge. However, it is markedly different than the solicitation ordinance and is intentionally limited in scope and specifically, narrowly tailored to address the public safety interests and issues at stake, City Solicitor Kathryn Fallon wrote to the council in an Aug. 25 letter.

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Framingham passed an anti-begging law, but will it withstand legal challenges? - Boston.com

Next week, the Supreme Court will commence a new Term. The Courts docket provides the conservative super-majority with multiple opportunities to continue to radically remake constitutional law.

For example, in a case from Colorado, the Court will decide whether a website designer has a First Amendment right to take on jobs in support of opposite-sex but not same-sex marriages, despite the states civil rights law barring such discrimination. A case from North Carolina asks the Court to endorse the so-called independent state legislature (ISL) theory, which figured prominently in Donald Trumps scheme to override the 2020 presidential election and could produce similar mischief in upcoming elections. And in another case from North Carolinathis one involving the states flagship universitythe Justices could overrule precedents dating to the 1970s to hold that the Fourteenth Amendments Equal Protection Clause bars all or nearly all race-based affirmative action.

Each of those cases involves constitutional interpretation. It might therefore be thought that there is nothing Congress can do to prevent or mitigate the damage. After all, a constitutional amendment requires passage by two-thirds majorities in each house of Congress and ratification by three quarters of the states. In this view, Mitch McConnells successful blockade of Merrick Garland to steal a Supreme Court seat and the untimely death of Ruth Bader Ginsburg followed by the shameless rush to confirm Amy Coney Barrett combined to bake in the extremely conservative Court we now have.

Yet Congress has tools at its disposal. Most radically, Congress could increase the size of the Court or strip some of its jurisdiction. More modestly but crucially, Congress can combat ISL by exercising its power under Article I, Section 4 to make or alter state laws governing congressional elections and under Article II, Section 1 to determine the time of choosing the electors in a presidential election. And to its great credit, the House of Representatives passed a billH.R. 1that exercises those powers in ways that would substantially strengthen American democracy. To its great discredit, the Senate (mostly due to hesitation by Joe Manchin and Kyrsten Sinema) has not moved forward with H.R. 1.

What about those other cases? There is little Congress can do (short of Court expansion or jurisdiction stripping) to protect federal, state, and local antidiscrimination law against the Courts eagerness to provide exemptions based on speech and religion, so long as those exemptions are ostensibly found in the Constitution. Nor can ordinary legislation stop the Court from perverting the Fourteenth Amendmentadopted during Reconstruction chiefly to empower Congress to enact legislation benefiting formerly enslaved African Americansby turning it into an obstacle to diversity and inclusion.

But if the University of North Carolina and other great state colleges and universities seem doomed to succumb to the SCOTUS conservative supermajoritys hostility to affirmative action, the same fate need not befall private colleges and universities. In addition to hearing the UNC case, the Court will hear a similar challenge to race-based affirmative action in admissions at Harvard College. Congress clearly has the power to affect the outcome of the Harvard case.

Except for the Thirteenth Amendment, the Constitution constrains government and its agents, not private actors. Thus, the Fourteenth Amendments Equal Protection Clause does not impose any limits on Harvard or other private colleges and universities.

Why, then, was Harvard sued? Although the Constitution does not apply to private actors, Title VI of the 1964 Civil Rights Act does. It forbids discrimination on the ground of race, color, or national origin by entities that receive federal funds. Because of the pervasive role of the federal government in funding research and financial aid, Title VI covers nearly every private college and university in the country. And since the Supreme Courts 1978 Bakke ruling, the case law has treated the limits imposed by Title VI as coextensive with those imposed by the Equal Protection Clause on state colleges and universities.

It is conceivable that the Court could change that practice in the Harvard case. After all, if the Court is willing to change course by forbidding nearly all affirmative action, it could surely take the lesser step of changing its view that the statutory and constitutional limits are coextensive. However, that seems extremely unlikely. The text of Title VI is, if anything, easier to read as containing a principle of color-blindness than is the text of the Fourteenth Amendment. Hence, if five or six Justices construe the latter to forbid race-based affirmative action for state colleges and universities, they will almost certainly construe Title VI to have the same impact on private ones.

Yet the story need not end there. In the face of such a rulingor better yet, now, before the Court rulesCongress can amend Title VI to make clear that it does not forbid affirmative action. Doing so would be straightforward. Congress could append the following statement to the existing statute: Consideration of race, color, or national origin for the purpose of achieving the benefits of diversity shall not be deemed to violate this provision. That language would make explicit the standard under which colleges and universities have operated for decades. It would not protect affirmative action programs at state colleges and universities against the stricter standard the Supreme Court will likely adopt in the UNC case, but it would protect Harvard and other private actors.

Note that under my proposed amendment to Title VI, no private college, university, or other recipient of federal funds would be required to practice race-based affirmative action. The amendment would simply clarify that the decision whether to do so rests with the colleges and universities themselves. That fact ought to make the proposal appealing to conservatives who frequently complain about what they consider to be over-regulation. Leaving an important decision about governance to the leadership of private entities enacts a principle of limited government.

Yet one would need to be especially nave to think that any congressional Republicans would support my proposal. Indeed, it is possible that even substantial numbers of Democratic lawmakers would defect.

Unfortunately, race-based affirmative action is sufficiently unpopular that voters have rejected it when it has appeared on the ballot even in blue states. For instance, in 1996, California voters adopted Proposition 209, which drastically curtailed affirmative action at state institutions. They reaffirmed their opposition to affirmative action just two years ago, when they rejected a ballot initiative that would have repealed Prop 209. It is thus difficult to see poll-savvy Democrats in Congress embracing my proposal.

Moreover, to enact my amendment to Title VI, Congress would need either 60 votes in the Senate to overcome a filibuster or for all 50 Democrats (plus Vice President Harris) to change the filibuster rule. (Aficionados of Senate procedure might be wondering whether a mere 50 votes might suffice using the budget reconciliation mechanism; they would not; although Title VI involves federal spending, my proposed amendment does not; thus the parliamentarian would very likely rule it out of order as extraneous matter under the Byrd rule.) There is, alas, no way that even 50, much less 60, Senate votes are forthcoming.

By now readers might be annoyed with me. Why did I propose a bill that I myself acknowledge is politically a non-starter? One answer is that Im a law professor, not a politician. I see my job principally as analyzing the law and sometimes offering suggestions for improving it. If political actors responding to their constituents real or imagined views reject my suggestions, that is their business.

But there is also a practical reason to make impractical suggestions. The window of what is possible shifts over time. For the 49 years between Roe v. Wade and Dobbs v. Jackson Womens Health Org., anti-abortion activists proposed laws that either would not be enacted or, if enacted, would be struck down by the courts. They played a long game, hoping that someday their efforts would bear fruit.

So too for progressives now. With conservatives in power in most states as well as in the U.S. Supreme Court, and facing the very real prospect of losing Congress and, in two more years, the presidency, we can and should make a call for urgent action now. But in doing so, we should also understand that we aim to maintain our lawmaking muscle mass for a day when we have the ability to use it.

Read more here:
Congress Should Protect Voluntary Affirmative Action in Private Colleges and Universities - Justia Verdict

East County News Service

County News Service contributed to this report

September 28, 2022 (San Diego) San Diego Countys Board of Supervisors today approved Vehicle-Miles-Traveled (VMT) guidelines for new development in unincorporated communities aimed at fighting climate change while still allowing approximately 7,700 homes to be built faster and without expensive traffic studies.

The Boards action to adopt a new Transportation Study Guide brings County policies into sync with the state of Californias VMT law. That law aims to reduce greenhouse gas emissions from cars and fight climate change by asking proposed developments how many miles the people living in them would have to drive on average to reach jobs, amenities or transit.

The Boards vote means housing proposed in unincorporated areas where cars would travel at least 15% fewer miles than the average of all drivers in the entire county including city areas could be built without VMT studies and mitigation. That would reduce the cost and streamline the review and consideration process for infill and vehicle-mile-traveled-efficient development in areas that have higher housing densities and are nearer to roads, jobs and transit.

Projects proposed where drivers would have to drive 16% or more miles than the average regional driver could still be proposed, approved and built. But they would have to pay for VMT studies and potential mitigation. That could make it more expensive for developers to build in the Countys unincorporated areas that are often located farther away from jobs and amenities.

However, County staff calculated the new Transportation Study Guide would allow up to 7,693 homes to be built without study and mitigation within two types of unincorporated areas infill areas and VMT efficient areas.

The VMT efficient areas are places where people would drive 15% or fewer miles than drivers within the region. Infill areas are defined as those with already dense housing development with a minimum of 425 houses and 128 intersections per square mile and within 15 miles of job centers.

One of the intents of the states VMT law was to encourage infill development that would improve public health by encouraging people to walk and bike more and reduce car travel and greenhouse gas emissions.

Anderson amendments adopted to explore transit expansion in East County, along with more wineries

Supervisor Joel Anderson advocated for the County to keep as many opportunities for housing in the unincorporated area as possible as the Board implements state guidelines related to vehicle miles traveled (VMT.)

Anderson first supported Supervisor Desmonds substitute motion, which would have reverted to the VMT metric the previous Board used in 2020 and exempted affordable housing from having to meet VMT requirements. The previous VMT metric kept the housing capacity at 18,000 homes, while the new one considered by the Board today reduced the number of potential homes to about 5,870. This motion failed on a party-line vote, with Anderson and Desmond being the only Supervisors to vote in favor of it.

We are on the path to creating the biggest suburb of San Diegans in Riverside County, Supervisor Joel Anderson shared at Wednesdays Board of Supervisors meeting.

Following the failed vote, Anderson then introduced two amendments that would potentially allow for thousands of more units to be built in the unincorporated communities.

The first amendment directed staff to pursue transit opportunities in the unincorporated areas as part of the next phase of VMT implementation. The State VMT guidelines allow more homes to be built if they are near mass transit. This would therefore allow existing communities, such as Ramona or Alpine, to continue to grow to their planned capacity.

Andersons second amendment directed staff to study the potential to allow for new or expanded wineries in areas such as Ramona, Jamul, and the San Pasqual Valley. The VMT guidance as it stood did not provide enough clarity for these types of important agricultural uses.

Chair Fletcher and Vice Chair Vargas shared Andersons concerns for the unincorporated communities and agreed to accept his amendments.

Supervisor Terra Lawson-Remer praised County staff for creating guidelines that would immediately address the climate crisis, create a path to build more affordable homes and withstand legal challenge.

Weve come up with an approach that simultaneously gets us to more housing and protects our climate for future generations, Lawson-Remer said.

With their vote Wednesday, the Board also directed County staff to work with other agencies to see if more Vehicle Miles Traveled efficient areas could be created in unincorporated communities by bringing mass transit to them.

The final vote adopted the Supervisors amendments along with the recommendations and passed on a vote of 4-1, with Supervisor Desmond voting No.

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SUPERVISORS APPROVE VEHICLE MILES TRAVELED: ANDERSON AMENDMENT PUSHES FOR TRANSIT EXPANSION IN EAST COUNTY TO ALLOW MORE HOMEBUILDING - East County...

The judiciary has to make it clear: It is not patriotism, it is not standing up for America to stand up for one man who knows full well that he lost instead of the Constitution he was trying to subvert, said Jackson, who was appointed by former President Barack Obama.

In addition, Jackson said, Trump and his allies are using rhetoric about the multiple criminal probes connected to Trump that contain dangerous undertones.

Some prominent figures in the Republican Party are cagily predicting or even outright calling for violence in the streets if one of the multiple investigations doesnt go his way, Jackson said.

The judges tough remarks came as she delivered a sentence to Jan. 6 defendant Kyle Young, who pleaded guilty to assaulting D.C. Police Officer Michael Fanone in some of the most brutal violence that occurred during the attack on the Capitol. Jackson sentenced Young to 86 months in prison, one of the stiffest sentences handed down, after describing his enthusiastic participation in the mob violence against Fanone, including by passing a taser to another rioter who used it on Fanones neck. Young, she noted, was accompanied amid the mob by his 16-year-old son.

But her most notable comments were directed not at Young but at Trump and GOP leaders themselves, describing them repeatedly as so beholden to one man that it has become heresy for Republicans to contradict his claims of election fraud.

Shes not the first federal judge to rebuke Trump in the context of Jan. 6 riot prosecutions. Judge Amit Mehta lamented that many of the low-level rioters were duped by powerful figures, including Trump, into marching on the Capitol, only to suffer criminal consequences as a result. Judge Reggie Walton called Trump a charlatan for his conduct related to the election. And a federal judge in California, David Carter, determined that Trumps actions related to Jan. 6 likely amounted to a criminal conspiracy to subvert the election.

But Jacksons comments were the most stinging assessment not only of Trump but those in the upper echelons of elected GOP leadership who have echoed him. She also pushed back at claims by some Trump allies that Jan. 6 defendants had been targeted for political reasons.

You were not prosecuted for being a Trump supporter. You were not arrested or charged and you will not be sentenced for exercising your first amendment rights, she said to Young. You are not a political prisoner You were trying to stop the singular thing that makes America America, the peaceful transfer of power. Thats what Stop the Steal meant.

Jackson is no stranger to high-profile Trump-related matters. She oversaw the trial of longtime Trump confidant Roger Stone, who was charged and convicted of lying to lawmakers investigating Russian interference in the 2016 election. In that trial, she castigated Stone after an ally used his social media account to post an image of her that appeared inside crosshairs.

Jackson also presided over one of the criminal cases against former Trump campaign chairman Paul Manafort, who pleaded guilty to financial crimes but was later accused by prosecutors of lying during his cooperation agreement.

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'Afraid of losing their power': Judge decries GOP leaders who back Trump election claims - POLITICO

Arizona State University

Michael Scott

A lawsuit filed by theAmerican Civil Liberties Union (ACLU)and some local media outlets is challenging the constitutionality of a new Arizona law, which prevents people from filming police within 8 feet of the officer.

There is an exception for people who are themselves the subject of the police action. The groups suing argue it violates the First Amendment rights of those who want to record what the police are doing and those who want to see what police are doing.

Without an injunction, the law will take effect later this month.

Attorney General Mark Brnovich, by the way, says he will not defend the law in court. In filings, he said itd be up to county prosecutors, not his office, to decide whether or not to pursue charges, so those offices should be the ones defending the law. Both the Maricopa County Attorney and Sheriffs offices have also said they will not defend the law or oppose the request to block it from taking effect.

Michael Scott says the law seems to be aimed at addressing a challenge police officers face: giving them the space to do what they need to do without undue interference or obstruction. But Scott also says that competes with another legitimate interest the public hasthe ability to observe and record what police are doing.

Scott is a former police officer and a clinical professor in Arizona State Universitys School of Criminology and Criminal Justice.

The Show spoke with him to learn about the conflict.

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Law preventing police filming struggles to balance First Amendment with space for officers' duties - KJZZ

So what does the First Amendment have to say about pronouns? That is the question posed by a couple of recent lawsuits. In one, a professor is suing Southern Utah University for compelling him to use they/them pronouns when referring to a nonbinary student. In another, a Kansas school district is paying $95,000 to settle a lawsuit brought by a teacher who was forced to use students preferred pronouns against her wishes.

The Kansas settlement means good news for the Utah professor, right? Well, not so fast. The two lawsuits are different enough that one may not have much sway in the other.

In the Kansas case, the teacher objected not only to the schools policy requiring her to use the preferred pronouns, but also to the policy that required her to effectively conceal the students preference when addressing parents. The policy required her to use the students legal name when talking with parents. Pamela Ricard, the teacher, argued that the policy conflicted with her deeply held religious beliefs. Ricard referred to a student as Miss despite the students preferred use of he/him pronouns. Ms. Ricard believes God assigns gender at birth and any policy requiring her to use language that is different from the students biological sex actively violates Ms. Ricards religious beliefs. In this instance, the school district decided to avoid the fight and paid up.

But that doesnt mean Southern Utah will do the same. In that case, as far as I can tell, theres no religious exception. The professor just contends that the Universitys mandate on pronoun usage violates his First Amendment right to call people by whatever pronoun he chooses. As a public employee, Richard Bugg, the professor, has First Amendment protection. But its not unlimited. As an employer, Southern Utah can impose workplace rules that limit speech. For example, a public employee cant harass fellow employees and avoid discipline by relying on the First Amendment. The First Amendment allows public employees to speak out on political topics and otherwise engage in discussions around public controversies.

That will be the issue in the Southern Utah suit if it gets to trial. Does the use of pronouns when addressing a student constitute speech on a public controversy? Id say no and Southern Utah should be allowed to enforce its policy. But, as is obvious, I am not the judge.

Excerpt from:
Pronouns and the First Amendment - Lexology

Dahlia Lithwick will give a lecture in the Osher Lifelong Learning Auditorium on Sept. 15 addressing Supreme Court decisions, such as Roe v. Wade and the separation of church and state.

Dahlia Lithwick, an award-winning journalist, writer, and lawyer, is speaking at Florida Atlantic University on Sept. 15 in celebration of Constitution Day. Her goal is to educate the community about Supreme Court decisions, such as Roe v. Wade and the separation of church and state, all of which impact First Amendment freedoms.

FAU students, faculty, and staff can attend the event at the Osher Lifelong Learning Auditorium for free with their FAU ID. The first 200 tickets claimed will come with a copy of Lithwicks book Lady Justice: Women, the Law, and the Battle to Save America, which attendees will have the opportunity to get signed at the event. FAU students, faculty, and staff can get tickets at http://www.fauevents.com, and members of the public can get tickets for $25 by making an account.

Director of the School of Communication and Multimedia Studies (SCMS), Carol Mills, believes Lithwick will help continue the tradition of the SCMS selecting journalists who are knowledgeable on the issues of freedom of the press. The school is responsible for selecting the keynote speaker, and for this year, the school chose Lithwick.

Although students may enter college thinking primarily about their career trajectory, they should also be preparing to be civically engaged citizens in a democratic society, Mills said. Events like Constitution Day, and the Breezeway Dialogue Series, help all students become more aware of the key issues and concerns that shape our world.

Lithwick is a senior editor at Slate, where she has been writing since 1999 and has also been published by The New York Times, Harpers, The New Yorker, The Washington Post, The New Republic, and Commentary. She is also the host of Amicus, Slates award-winning biweekly podcast about the law and the Supreme Court. She also frequently appears as a commentator on MSNBC.

Dahlia Lithwick is a perfect person [for this event], I would say because she is one of the foremost journalists and commentators covering the Supreme Court today, said journalism professor and event organizer Ilene Prusher.

She hopes that people who attend this event will have an easier time being able to connect the dots between Supreme Court decisions and how they will impact First Amendment freedoms.

[Lithwicks] knowledge of [law] is simply extraordinary. She has an incredible knack for being able to break down legal issues that are both understandable and engaging, Prusher said.

As of late, Lithwick has taken a dim view of the direction the current Supreme Court has taken in regard to personal freedoms.

Published on Slates website, Lithwick says, As the conservative supermajority that controls the Roberts court careens through the remainder of this term, take note of which types of people deserve privacy and spiritual dignity, and the right to be let alone, and which do not.

Lithwick and her staff did not respond to requests for comment by the time of publication.

Jessica Abramsky is a contributing writer for the University Press. For more information on this article or others, you can reach Jessica at [emailprotected]

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Award-winning journalist and lawyer to speak at FAU on First Amendment freedoms for Constitution Day - University Press

Under the Inflation Reduction Act, the IRS will receive a staggering $45.6 billion to bolster tax enforcement. That means substantially more manpower for criminal prosecutions, civil judgments, and above all, more audits.

Unfortunately, with this great power comes no accountability. Thanks to a recent Supreme Court decision, any IRS agentas well as almost every other federal officerwho goes rogue and abuses their power cant be sued for violating the Constitution.

In Egbert v. Boule, Robert Boule, who owned a bed-and-breakfast, said he was thrown violently against an SUV by Border Patrol Agent Erik Egbert. After Boule filed a formal complaint with the Border Patrol, Egbert contacted the IRS, which promptly audited the innkeeper. That audit, Boule claimed, was retaliation for exercising his First Amendment rights.

WASHINGTON, DC - AUGUST 07: The U.S. Capitol Building, photographed during a series of amendment ... [+] votes, also called "vote-a-rama, on the Inflation Reduct Act at the U.S. Capitol on Sunday, Aug. 7, 2022 in Washington, DC. (Kent Nishimura / Los Angeles Times via Getty Images)

Though the Supreme Court was split on whether Boule could sue Egbert for excessive force (the majority ruled he couldnt), the court unanimously agreed there is no cause of action for Boules First Amendment retaliation claim. As a result, any disgruntled or thin-skinned government employee is free to weaponize the IRS with impunity.

Egbert shines a spotlight on a devastating loophole in government accountability. Had Egbert worked for a sheriffs department or a police department, Boule could have sued under a federal law that authorizes civil rights lawsuits. Codified today as Section 1983, this law dates all the way back to 1871, when Congress enacted the Ku Klux Klan Act to crack down on horrific assaults and lynchings in the former Confederacy.

But federal officers were not included (and still arent). At the time, this omission made sense. Local and state lawmen were either deliberately indifferent or active participants in many of the atrocities committed in the Reconstruction South.

Meanwhile, federal law enforcement had a minimal presence in 1871. Two of the then largest federal policing agencies, Customs and the Postal Service, collectively had fewer than 130 special agents and investigators on their payroll. And throughout the 19th Century, federal courts routinely ordered rogue federal officers to pay damages to those they had wronged, since that was often the victims only recourse.

Times have changed. The federal government now employs over 132,000 law enforcement officers across more than 80 different agencies. Though the vast majority work for either the Justice Department or the Department of Homeland Security, federal law enforcement agents can also be found at the EPA, FDA, NASA, and the National Institutes of Health. But since they are still inexplicably exempt from Section 1983, federal agents are effectively given blanket immunity from constitutional lawsuits.

Partly in response, in 1971, the Supreme Court recognized a limited cause of action that allowed Fourth Amendment lawsuits against federal officers. Named after the plaintiff in the case, Webster Bivens, who was manacled and strip searched by federal narcotics agents, Bivens actions have helped countless victims vindicate their rights.

But since 1980, the Supreme Court has repeatedly refused to extend Bivens (11 times, according to Justice Clarence Thomas). Ensuring victims would have a legal remedy against federal misconduct became a disfavored judicial activity. This contempt for Bivens culminated in Egbert v. Boule, which saw the High Court dramatically tilt the already tipped scales of justice further in favor of the federal government.

Writing for the majority, Justice Thomas declared that federal courts are not competent to authorize a damages action against any Border Patrol agent, regardless of their conduct. For all other federal officers, under Egbert, courts must now reject any Bivens claim if there is any reason to think that Congress might be better equipped to create a damages remedy. That includes even the mere potential for inappropriate consequences.

For his part, Justice Neil Gorsuch would have overturned Bivens entirely, rather than offer false hope to victims. After all, if the only question is whether a court is better equipped than Congress to weigh the value of a new cause of action, surely the right answer will always be no.

Hamdi Mohamud spent two years in federal prison after a local police officer framed her for a crime ... [+] she did not commit.

Less than a week later, Gorsuchs words were already ringing true. The High Court refused to hear the cases of Kevin Byrd, a Texas small business owner who had a gun pulled on him by a U.S. Department of Homeland Security agent, and Hamdi Mohamud, a Somali immigrant who was thrown in jail for over two years on the baseless accusations of a St. Paul police officer deputized as a US Marshal.

Even though both cases involve garden-variety Fourth Amendment claims that had long been authorized by Bivens, Kevin and Hamdi had their Bivens claims thrown out by lower federal courts, simply because the offending officers were federal employees.

By failing to reverse the rulings made by the Fifth and Eighth Circuits, the Supreme Court has effectively rendered Bivens a dead letter in the 10 states governed by those circuits (Arkansas, Iowa, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, South Dakota, and Texas), according to the Institute for Justice, which represents both Hamdi and Kevin.

Without action from Congress, federal agents canand willcontinue to act with impunity. Thankfully, there is already a bill pending. Re-introduced last December by Reps. Hank Johnson and Jamie Raskin and Sen. Sheldon Whitehouse, the Bivens Act would codify Bivens and overturn Egbert.

Unlike the Inflation Reduction Act and other mammoth bills that dominate the Hill, the Bivens Act is refreshingly short and sweet. The entire bill would add just five words (of the United States or) to Section 1983, a reform that would finally authorize civil rights lawsuits against federal officers. If enacted, the bill would ensure that federal agents dont have any extra protections their state and local counterparts lack.

Despite the clear urgency for the Bivens Act, the bill has languished in both chambers; it hasnt even received a hearing. With the Supreme Court adamant that only Congress can hold federal agents accountable, this lethargy is inexcusable.

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With Just Five Words, Congress Can Rein In IRS And Other Federal Agents - Forbes

Updated at 11:50 a.m. ET on September 7, 2022

Fox News is in legal trouble. The media giant is facing lawsuits from two voting-machine companies over segments it aired with Donald Trump surrogates parroting the former presidents made-up allegations that the 2020 presidential election had been thrown by compromised voting machinesinsinuations that Trumps own advisers told him did not hold water.

Defending their client, Fox Newss attorneys have relied heavily on free-speech doctrines established by the 1964 landmark Supreme Court case New York Times v. Sullivanspecifically, the standard of actual malice. This standard says that when it comes to public figures, a speaker must know their statements are false or display reckless disregard for whether the statements are true in order to meet the requirement for defamation. In that particular case, the Montgomery, Alabama, public-safety commissioner, L. B. Sullivan, sued The New York Times over an ad it had published calling for donations on behalf of the civil-rights leader Martin Luther King Jr. Although the ad made some factual errors regarding the police department Sullivan oversaw, the Court ruled that the Times was not liable, because the purpose of the First Amendment was to guarantee that debate on public issues should be uninhibited, robust, and wide-open, and that such debate may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

This standard has protected the right of Americans of all political persuasions to make absurd, hyperbolic, and sometimes even false statements about their political leaders. This is how it should be. The bar is not unreachable, but it is justifiably high in order to protect public criticism of powerful people. Following former President Trumps calls to open up our libel laws, gutting the free-speech protections of Times v. Sullivan has become a right-wing cause, presumably because some conservatives imagine that the fake-news liberal media will be swiftly bankrupted for saying mean things about the smart and handsome Mr. Trump. But the Fox News lawsuits show that conservatives enthusiasm for gutting Times v. Sullivan would leave right-wing media outlets more vulnerable than perhaps they appreciate.

Read: Do you speak Fox?

In a dissent last year, the conservative federal judge Laurence Silberman called for Times v. Sullivan to be overturned, complaining that the Times and The Washington Post are virtually Democratic Party broadsheets and adding that nearly all televisionnetwork and cableis a Democratic Party trumpet. This is false, but even if it were true, one strains to see what relation it has to defamation law. Like most frustrated news consumers, Silbermans complaints regarding the mainstream press are about framing, emphasis, and story selectionnot facts.

Silbermans position is nevertheless shared by some very powerful people. Three years ago, Justice Clarence Thomas wrote in a concurring opinion that the Supreme Court should overturn New York Times v. Sullivan and rethink the actual-malice standard. That case was a particularly compelling one for his point: It involved a woman who had sued Bill Cosby for libel after the disgraced comedians lawyer accused her of lying about being assaulted by Cosby. The Court declined to take the case, leaving in place a lower-court decision in Cosbys favor on the grounds that the plaintiff had become a limited-purpose public figurea term describing an otherwise private citizen who finds themselves at the center of a public controversyand that the attorneys statements therefore did not meet the actual-malice standard.

New York Times and the Courts decisions extending it were policy-driven decisions masquerading as constitutional law, Thomas wrote. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

In a 2021 case, Thomas reiterated his call for Times v. Sullivan to be overturned and was joined by Justice Neil Gorsuch, who lamented the spread of disinformation on social media and argued that if the actual-malice standard had force in a world with comparatively few platforms for speech, its less obvious what force it has in a world in which everyone carries a soapbox in their hands. Its always interesting to see which contemporary developments originalists decide are relevant to their constitutional interpretations.

Thomass and Gorsuchs arguments are more compelling and sophisticated than Silbermans, but its also clear that Silberman is closer to the mainstream conservative view on the subject, which is that Times v. Sullivan should be overturned in order to discipline the liberal media.

Joshua A. Geltzer and Neal K. Katyal: The true danger of the Trump campaigns defamation lawsuits

The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace, Silberman wrote. And when the media has proven its willingnessif not eagernessto so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press power. Again, this is an editorial, not legal, analysis, an expression of desire to punish the press for its misbehaviora rather ironic frame for a so-called defense of free speech. None of Silbermans concerns, to the extent you take them seriously, would be addressed by overturning Times v. Sullivandiverging ideological interpretations of the same facts would persist without a stronger liability shield. In Britain, where there is no actual-malice standard, major media outlets are widely considered to be more explicitly aligned by ideology and hardly free of distortions.

The irony of Trumps complaints about the permissiveness of American libel law, and right-wing jurists support for gutting the actual-malice standard, is that many conservative media outlets would suffer without itperhaps more than the mainstream press outlets they hope to bring down. Those institutions would survive. But all the right-wing shitposters calling for the medias downfall? Might not be so great for them.

The loss of the concept of a limited-purpose public figure would make things very hard for outlets and personalities who thrive on finding new targets for opprobrium. Beyond the legal trouble facing Fox News, the parents of a child murdered in the Sandy Hook massacre recently successfully sued Alex Jones, the far-right proprietor of Infowars who counts Trump among his admirers, after he alleged that the incident was a false flag operation orchestrated by the government. The verdict was taken in conservative circles as an attack on free speech, notwithstanding the insistence that it should be easier to sue the media for saying things that are false. In 2020, a federal judge dismissed a defamation lawsuit against the Fox News host Tucker Carlson filed by a woman who claimed to have had an affair with Trump. Carlson accused her of extortion on his show, but the judge dismissed the suit on the grounds that the host is not stating actual facts about the topics he discusses and is instead engaging in exaggeration and non-literal commentary.

The actual-malice standard has enabled the creation of an alternate universe of conspiratorial disinformation about political figures conservatives opposesuch as the birther myths around Barack Obama and the dark, elaborate fantasies concocted about the Clintons. In plain English, conservative media have gotten used to being able to say outrageous things without any adverse legal consequences and have built devoted audiences under the umbrella of this protection. Tens of millions of Americans trust and believe the things they hear from these outlets, viewing nonconservative media sources as untrustworthy. These outlets have abused that trust by consciously misleading the population about serious matters, such as the risks of the coronavirus pandemic and the origins of the Capitol riot. Again, this is their First Amendment right, however infuriating their conduct might be.

David French: Free speech for me but not for thee

Even with the current high standard, somesuch as Jonesstill face legal consequences for their actions. But without that standard, conservative outlets that engage in similar conduct would be much more likely to face legal threats. On the other hand, if Britain offers any example, mainstream media outlets such as The New York Times and The Washington Post would survive Times v. Sullivans demise. These organizations can afford strong legal representation and, crucially, maintain much stricter rules about what they publish. That does not make them infallible or above criticism, and it doesnt mean that they never make libelous errors. But their institutional standards ensure that the overwhelming majority of the time, their coverage is rooted in facts. Many of their detractors in the right-wing press are much more reliant on, to use a technical term, bullshit.

Overturning Times v. Sullivan would undoubtedly have a chilling effect on free speech. We can infer this simply from the era before Times v. Sullivan, during which public officialsmany of them segregationistsused libel law to stifle criticism of their official conduct, a practice that weighed heavily on the unanimous majority in Sullivan. Fox Corporations chief executive is suing an outlet in Australia that has been critical of the networks coverage of the 2020 election, taking advantage of the absence of speech protections it is eagerly availing itself of in the United States. This is how good legal representation works, but it also reflects an approach to free speech that is more mercenary than principled.

Even if they were unsuccessful in intimidating large outlets such as the Times or the Post, wealthy and powerful people would likely find it much simpler to use the threat of litigation to silence those without deep pockets or institutional support. It would be little trouble to target the average person shooting their mouth off on social media, but the media outlets that conservatives hate would continue to exist and continue to cover public affairs in a way they disapprove ofthat is, without sounding like the Trump advisers at Fox News.

Without the actual-malice standard, the strong would likely find it easier to silence the weak. It is not hard to understand why the justices, powerful people who are frequently subject to withering public criticism, might be sympathetic to that outcome. But conservatives who believe that the end of the actual-malice standard would fatally injure the mainstream outlets they loathe should probably be careful what they wish for.

This article originally misidentified the entity whose chief executive is suing an outlet in Australia.

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The Right-Wing War on Free Speech Could Backfire - The Atlantic