Category Archives: First Amendment

A Bangor-area school district must pay far-right conservative activist Shawn McBreairty $40,000 to settle a federal lawsuit in which McBreairty accused the districts school board and its chair of violating his First Amendment rights by banning him from attending board meetings and school events.

U.S. District Judge Nancy Torresen ruled in favor of McBreairty in July, finding the school boards ban unconstitutional. The financial settlement was handed down Tuesday.

In May, Regional School Unit 22, which serves Hampden, Newburgh, Winterport and Frankfort, barred McBreairty from participating in school functions and entering school grounds to attend meetings until Dec. 31, 2022. The ban followed an April school board meeting at which McBreairty played an audio recording of a phone conversation that the school district said contained inappropriate language.

In the phone recording, McBreairty used the phrase hardcore anal sex, which the school district said violated its public comment policy that prohibits abusive or vulgar language.

At the time of the ban, RSU 22s lawyer, Timothy Pease, said the district was banning McBreairty for his failure to comply with district rules.

As McBreairty was playing the recording, school board Chair Heath Miller told him that he was violating board policy and to stop playing the recording. When McBreairty refused, Miller asked that he leave the meeting and then moved the meeting into a recess until McBreairty was gone.

Torresen, however, hinted that the school board might have discriminated against McBreairty, banning him for his viewpoints rather than for a failure to adhere to district rules.

It is hard to shake the sense that the school board is restricting the speech because the board disagrees with both McBreairtys opinions and the unpleasantness that accompanies them, Torresen said.

Torresen, who was appointed by former President Barack Obama, also found that McBreairtys reference to hardcore anal sex was not obscene because it was used to make a political point. McBreairty, a far-right activist for parental rights in K-12 public schools, has made frequent claims that schools are teaching critical race theory and providing porn to students. He has harshly criticized books that highlight LGBTQ+ characters and teenagers discovering sexuality, calling them pornographic. He was discussing the presence of books he sees as a form of pornography in school libraries during his public comment at the April meeting.

McBreairty, 51, lives in Hampden but does not have children in the school district. RSU 22 is not the first school district he has sparred with in recent years. He pleaded guilty last year to a misdemeanor charge of improperly influencing a public official after threatening the Cumberland-area school districts then school board chair; he was barred from Cumberland school district grounds after violating district rules; and he is currently being sued by the Hermon school department for allegedly bullying and harassing one of its teachers.

McBreairty also authored an amendment to the Maine Republican Party platform that would discourage teachers from teaching identity politics and kiddie porn, and bring morals and family values back to Maines schools.

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School district to pay far-right conservative Shawn McBreairty $40000 in lawsuit - Kennebec Journal and Morning Sentinel

A federal judge has allowed an inmate to pursue his lawsuit against Colorado prison officials based on allegations they failed to protect him, instructed other prisoners to fight him and retaliated against him for filing grievances.

Although the defendants attempted to characterize Terance DeJuan Wilson as a "frequent filer" who regularly pursues scattershot claims in federal court, Wilson has plausibly alleged employees of Sterling Correctional Facility violated his constitutional rights by reportedly calling him a "snitch" and directing two inmates to jump him.

"(I)structing one inmate to attack another plainly violates the Eighth Amendment," wrote U.S. Magistrate Judge N. Reid Neureiter in his analysis of Wilson's lawsuit.

Wilson is serving a 32-year sentence for killing a member of theSureos gang. He has filed approximately one dozen other civil rights lawsuits during his incarceration, which include claims that prison officials failed to protect him against attacks bySureos members while incarcerated. Such allegations fall under the Eighth Amendment's prohibition on cruel and unusual punishment.

In November 2021, Wilson again sued corrections employees based on a series of incidents in which staff allegedly demonstrated deliberate indifference to his safety. Wilson is a "frequent filer" in the court, responded attorneys for the defendants in asking a judge to toss the case. They said his standard procedure is to "submit pleadings with a host of allegations and complaints, composed with varying degrees of (dis)organization, in hopes ... opposing counsel and the Court will divine a viable legal action from his airing of grievances."

Neureiter found that Wilson, who is representing himself, indeed failed to link certain defendants to any constitutional violation or otherwise neglected to provide sufficient details for certain encounters. But the magistrate judge deemed some of Wilson's allegations of unconstitutional conduct were specific enough to withstand the motion to dismiss.

On April 21, 2021, a prison employee went to Wilson's cell and allegedly began discussing a confidential report Wilson had made pursuant to the Prison Rape Elimination Act. The employee "winked and smiled at plaintiff. Then riled up the pod," Wilson wrote. These actions allegedly led to a white supremacist inmate accosting Wilson, who is Black, and labeling him a "snitch." Wilson reportedly received medical treatment after the inmate assaulted him.

Neureiter, in his July 28 analysis, determined that a corrections official would be acting with deliberate indifference to an inmate's safety by referring to their PREA complaint in front of other prisoners.

"The Tenth Circuit (Court of Appeals) has held that labeling an inmate a snitch and informing other inmates of that label with knowledge of the obvious risk of danger associated with that label violates the Eighth Amendment," Neureiter wrote.

Then in July 2021, prison employees allegedly encouraged two Black inmates to fight each other so they would be removed from the prison. When Wilson reported this to a lieutenant, employees then accused Wilson of "ratting" on them, and instructed the two Black inmates to "get him." Wilson reportedly sustained injuries from the ensuing assault.

Neureiter again found Wilson had plausibly claimed staff had violated his Eighth Amendment rights with their actions. In addition, the officers had engaged in retaliation, given that Wilson exercised his First Amendment right to report the alleged attempts to get inmates to fight.

Finally, Neureiter recommended that Wilson be allowed to proceed with his retaliation claim based on two other incidents. First, prison staff allegedly ransacked his cell 29 times and said it was in response to Wilson's grievances. Second, a corrections officer allegedly issued a retaliatory write-up for Wilson's complaints of assault. The write-up led to Wilson being charged $200 and placed in solitary confinement.

Although Wilson objected in general terms to the magistrate judge's findings, U.S. District Court Senior Judge Christine M. Arguello signed off on Neureiter's recommendation on Aug. 30. In allowing Wilson's Eighth and First Amendment claims to proceed against a total of four corrections employees, Arguello also permitted Wilson to file a new version of his complaint with more specific details about the dismissed claims, including allegations of excessive force.

The case is Wilson v. Long et al.

More here:
Judge allows inmate's lawsuit to proceed against prison officials for failure to protect, retaliation - coloradopolitics.com

MI: Michigan abortion proposal off ballot for now

freep.com

Michigan's elections panel deadlocked along partisan lines on certifying an abortion rights measure for this fall's ballot that proposed adding an explicit right to seek the procedure in the state. The impasse leaves the measure off the ballot. But a spokesperson for Reproductive Freedom for All said the group plans to file an appeal asking the Michigan Supreme Court to put the proposed constitutional amendment before voters.

miamiherald.com

A law passed by Florida Republicans in reaction to the protests that erupted across the U.S. in the summer of 2020 restricts the right to peaceful assembly, according to a report by a United Nations committee tasked with monitoring human rights across the globe.

jsonline.com

Wisconsin voters who have disabilities that prevent them from returning ballots themselves may receive assistance while voting, a federal judge ruled. U.S. District Judge James Peterson said the federal Voting Rights Act allows disabled voters to have friends or family return their ballots despite a recent state Supreme Court decision that barred such practices.

timesunion.com

New York state Sen. Joseph Addabbo, a Democrat, says the law he authored is aimed at prohibiting sales of nitrous oxide canisters, not the entire can of ready-made whipped cream, to those under 21, as some stores have misinterpreted. The law was meant to deter teenagers from improper use of the chargers to get high from inhaling the nitrous oxide gas. The whipped cream itself is fine, he said.

abqjournal.com

In an executive order, New Mexico Democratic Gov. Michelle Lujan Grisham pledged $10 million to build a state-funded clinic providing abortion and other services and directed the state Department of Health to marshal state resources to expand access to reproductive health including abortion in rural parts of the state.

alaskapublic.org

Fewer Alaska children are getting common vaccinations for debilitating and wildly contagious illnesses like polio. State health data show that from 2013 to 2021, the number of children in Alaska who completed the childhood series of vaccinations decreased from about 60% to about 46%, with a steeper drop off starting in 2020, coinciding with the COVID-19 pandemic.

startribune.com

The Minnesota Department of Human Services failed to provide adequate oversight while awarding tens of millions of dollars of grants to support those experiencing homelessness and others in need of housing assistance, according to a state legislative auditor report.

apnews.com

Oklahoma prosecutors should pursue charges against those who perform elective abortions but should give substantial leeway to doctors treating pregnant women for emergency conditions, the states attorney general wrote in a memo to law enforcement.

nebraskaexaminer.com

Cameron the Capitol Cat, a feline fixture at the Nebraska State Capitol, was reported missing and then found at a humane society in Lincoln. The cat is a celebrity on social media and has a fan club.

argusleader.com

More than a quarter of the correctional officer positions with the South Dakota Department of Corrections are unfilled. State officials hope increasing the starting hourly wage by 17% will help.

indystar.com

The Indiana Supreme Court has upheld the Archdiocese of Indianapolis' firing of a high school teacher over his same-sex marriage, saying the decision is protected by the doctrine of church autonomy under the First Amendment.

stltoday.com

Lawmakers seeking ways to address a suicide crisis among Missouri military veterans heard from several advocates who said psychedelic drugs could provide an answer. The House Interim Committee on Veterans Mental Health and Suicide was meeting against the backdrop of Missouri leading the nation in veterans suicides.

northjersey.com

With the virus that causes polio circulating just over the border in New York state, New Jersey's health department has recommended that some fully vaccinated people get polio boosters. New guidance from state health officials advises that health care providers should get a booster if they come into contact with patients who might have polio or handle specimens from those patients.

texastribune.org

Cotton production has been decimated by drought and extreme heat this year, costing Texas High Plains farmers and other agricultural industries at least $2 billion, according to one estimate. A bad year for cotton spells disaster for Texas, which leads the nation in cotton production.

Link:
What We're Reading: Top State Stories 9/1 - The Pew Charitable Trusts

Jack Greiner| Cincinnati Enquirer

Former President Donald Trump is a defendant in an action brought in a trial court in New York (for some reason, the trial court in New York is called the New York Supreme Court I dont get it). The plaintiffs are a group of human rights activists who share a Mexican heritage.They claim they were violently attacked by Trumps security guards as they lawfully assembled in front of Trump Tower in Manhattan.NPR and The Washington Post recently sent a letter to the court asking that they be permitted to attend jury selection in the case. I cant blame them for the request.It should be interesting if not downright entertaining.The court correctly determined that the public and press should be permitted to attend the jury selection. In doing so, the court noted that the United States Supreme Court has recognized that the public has a right to attend criminal trials. And while the Supreme Court has not yet decided whether the public has a right to attend civil trials (like this one), the Supreme Court has noted, historically both civil and criminal trials have been presumptively open. The trial court also noted that the Second Circuit Court of Appeals, which applies to federal cases in New York, has ruled that the public has a First Amendment right of access not only to criminal trials, but to civil trials and their related proceedings and records.The trial court also noted that jury selection is an integral part of the trial. It alluded to a myriad of cases that hold that only a compelling need can justify closing jury selection.The court is obligated to balance the public interest in the jury selection process against any other compelling interest that would justify closing the process to the public.In this case, the trial court had little difficulty finding a public interest in the trial given that it involves the former president of the United States. And it found no compelling reason to shut out the public. It held that [t]he present case concerns allegations of assault and destruction of property, which in themselves do not implicate any privacy concerns which would require restricting public access. It went on to find that "there is no legitimate reason to conclude that public observation of the jury selection or of the trial will result in unfair or unwarranted embarrassment or prejudice to any person."The court also noted, there is no showing that the fact that one of the defendants in this case is the former President will inhibit the candor of the prospective jurors. Instead, it may be fairly stated that the former President engenders strong responses from the public in all that he does, and that the public has no inhibitions in expressing its opinions on the subject of the former President, pro or con.So heres a win for the media.But not a complete victory.While the trial court allowed the media and the public to observe the jury selection, it prohibited "electronic broadcasting or other transmission to the public or radio or television signals from the courtroom, the recording of sound or light in the courtroom for later transmission or reproduction, the taking of motion pictures in the courtroom by the news media, or the taking of still pictures." But even with these restrictions, the public has the ability to be informed about the jury selection here, as it deserves to be.

Jack Greiner is a partner at the Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

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Strictly Legal: Jury selection in Trump trial open to the public - The Cincinnati Enquirer

More than 100 legal scholars and dozens of former judges, prosecutors and police chiefs are decrying Gov. Ron DeSantis suspension of Hillsborough County State Attorney Andrew Warren, arguing that the move runs counter to professional standards, sets a dangerous precedent and violates the constitutional separation of powers.

The scholars on Tuesday submitted a friend-of-the-court brief in a federal lawsuit in which Warren accuses DeSantis of overstepping his authority and violating the twice-elected prosecutors First Amendment rights.

DeSantis on Aug. 4 issued an executive order suspending Warren, a Democrat, accusing him of incompetence and willful defiance of his duties. DeSantis pointed to a letter Warren signed pledging to avoid enforcing a new law preventing abortions after 15 weeks of pregnancy. Also, the governor targeted a statement Warren joined condemning the criminalization of transgender people and gender-affirming care.

But 115 legal scholars from across the country who focus on ethics and the law denounced DeSantis action, saying Warrens suspension runs counter to professional standards of conduct, usurps the will and power of the electorate and eviscerates the carefully crafted separation of powers erected in the Florida Constitution.

The groups brief argued that prosecutors have discretion over how to spend their offices resources.

Elected prosecutors public statements on controversial questions of criminal law or procedure are not unethical or unprofessional but fulfill their professional obligation to promote law reform while enabling constituents to assess their views on policy relevant to their work, the brief said.

Warrens suspension for what can only be characterized as purely partisan reasons runs counter to professional standards of conduct, usurps the will and power of the electorate and eviscerates the carefully crafted separation of powers erected in the Florida Constitution, the scholars wrote,

DeSantis, who is running for re-election this year and is widely seen as a frontrunner for the 2024 Republican presidential nomination, has used his authority to suspend a number of elected officials since he became governor in early 2019.

On Friday, DeSantis suspended four Broward County school board members based on the recommendation of a grand-jury report. In one of his first actions after taking office, DeSantis suspended former Broward County Sheriff Scott Israel for actions related to a mass shooting at Marjory Stoneman Douglas High School in Parkland and a shooting at the Fort Lauderdale-Hollywood International Airport.

DeSantis, appearing at an event in Live Oak on Tuesday, defended his decision to suspend Warren.

In Florida, we actually said we are going to follow the law across the board, state and local. We had a prosecutor over in Tampa that had said he wasnt going to enforce laws that he doesnt like. So, we removed him from his post, and we said thats not going to happen here, DeSantis said.

The Florida Constitution grants the governor the authority to suspend state officers for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony. State attorneys are considered state officers.

The Florida Senate has the power to remove or reinstate suspended officials. Senate President Wilton Simpson, R-Trilby, has put the proceedings in Warrens case on hold while the lawsuit is pending.

In addition to abortion and transgender treatment, Warren has clashed with DeSantis on other fronts. For example, Warren criticized the way the state has carried out a constitutional amendment aimed at restoring voting rights to felons who have completed their sentences.

Warren, in an interview Wednesday with The News Service of Florida, accused the governor of using the suspension to score political points.

Ive spent my career as a prosecutor and in courtrooms and so I still live in a world where facts matter. I know that the governor is now campaigning for president and so he lives in a political world where apparently, in his view, facts dont really matter, Warren said. The reality is that nobody should want elected officials to have the power to remove other elected officials, just because they dont like the job that theyre doing or they dont like who the people are. This is just, from top to bottom, its truly undemocratic and un-American and illegal, and thats why its being challenged in court.

In a separate brief filed Friday, dozens of former judges and law-enforcement officials, including three retired Florida Supreme Court justices, warned that allowing Warrens suspension to stand would undermine the justice system.

The case presents issues of national importance, said the brief. Officials joining the brief included former Florida Justices Harry Lee Anstead, Barbara Pariente and Peggy Quince.

Governors do not have the authority to disregard the autonomy and independence of prosecutors, nor are they entitled to undermine the will of the voters by removing a prosecutor simply because he exercises the discretion vested in him to make charging decisions or expresses his views regarding appropriate priorities of the justice system, the brief said. Allowing governors to do so would upset the careful balance of roles and responsibilities delegated to local as well as state actors by state constitution, delegitimize our justice system and erode public confidence in the operation of government and the integrity of the election process.

U.S. District Judge Robert Hinkle has scheduled a Sept. 19 hearing on Warrens request to block DeSantis order. Warren was first elected in the 13th Judicial Circuit in 2016 and was re-elected in 2020. The circuit includes only Hillsborough County.

Dara Kam, News Service of Florida

More here:
Legal Experts Blast DeSantis Over Suspension of State Attorney - FlaglerLive.com

South Carolina Republican politicians distanced themselves from a widely criticized plan to outlaw offering abortion guidance online a proposal that raised fears about internet censorship after the end of Roe v. Wade.

Lawmakers introduced the proposed abortion ban in June, basing it on model legislation from the National Right to Life Committee (NRLC). Among other provisions, the proposal would have banned hosting or maintaining an internet website, providing access to an internet website, or providing an internet service that told people from the state how to obtain an abortion. Groups like the Knight First Amendment Institute argued that the model legislation raised serious First Amendment questions, and its introduction in South Carolina suggested states were interested in taking it up.

But as reported by The State and The Post and Courier earlier this month and referenced by the Electronic Frontier Foundation late last week, even lawmakers who support outlawing abortion asserted that they didnt support the measure. Theres no support for doing something like that, South Carolina Senate Majority Leader Shane Massey, a Republican, told The Post and Courier.

Massey declared that even people who are supportive of abortion restrictions didnt like the bill. Similarly, Republican Governor Henry McMaster said that everyone has a constitutional right of the First Amendment to say things, to speak, and such a restriction, I think, Im confident would not pass the House or the Senate. And yesterday, the South Carolina House of Representatives passed HB 5399, an abortion ban thats restrictive but doesnt include the language about websites and service providers.

This is no guarantee that the law wont crop up elsewhere. But its a mildly encouraging data point in the fight over speech and abortion even if thats a small part of the larger public health issue.

See more here:
A South Carolina plan to punish abortion aid sites is going nowhere - The Verge

In May, editors at the pro-abortion rights news website Rewiretook the extraordinary step of removing reporters biographies from the web site.

The move was a safety precaution: After theleak of a draftof a majority Supreme Court opinion inDobbs v. Jackson Womens Health Organizationto overturn the constitutional right to abortion, reporters at Rewire grew concerned about a possible uptick in online harassment.

The newsroom has for years kept a repository of harassing messages to track patterns, just in case, said editor-in-chief Galina Espinoza. The threats range from blowing upRewires Virginia headquarters to suggesting the editors should be shot.

I feel very fortunate to say that nothing has ever come of these kinds of threats, Espinoza said. But its obviously not only scary, its mentally taxing and it takes a toll on mental and emotional health.

The changing abortion landscape in America has put some reporters who cover the topic on edge. In addition to concerns about online harassment, reporters told CPJ they are wary of real-world violence and of the ways that shifting laws could leave them and their sources vulnerable to legal threats in the wake of theSupreme Courts decisionin June to overturn Roe v. Wade.

In Kansas, where an anti-abortion activistkilled abortion providerGeorge Tiller in 2009, reporters are highly aware of the potential for violence around the issue.

I would say that Im always cautious of that danger, particularly being in a state where weve seen a doctor murdered in his church, Sherman Smith, editor-in-chief of the nonprofit news organization Kansas Reflector, told CPJ. He said hes not worried about an immediate threat,but its something I think that we have to be cautious about, that when were going out to public events we have to think about it, and certainly when were talking to sources, we have to be cautious about putting them in harms way.

Smith said that though the news organization has no stance on abortion, it was accused of taking sides after it published in Julyleaked audio of a meetingduring which an activist group made clear its intent to ban abortion with aproposed amendmentto nullify the state Supreme Courts abortion protections. The group, Value Them Both, hadpublicly claimedthat it didnt seek to ban the procedure.

When the amendment failed, Value Them Both sent out an email blast claiming that the mainstream media propelled the lefts false narrative, contributing to the confusion that misled Kansans about the amendment. Smith said the newsroom also received vitriolic emails from readers, including one that accused the reporters of having bloodshed on their hands by failing to portray abortion as murder.

From our perspective, were just trying to give people the information they need to make up their mind about this [issue], but if were not carrying water for them, [advocates] see us as the enemy and they can direct their rage toward us, Smith told CPJ. The only other issue around which Smith remembers witnessing so much vitriol toward the media was another dealing with bodily autonomy: COVID-19 vaccine mandates.

Becca Andrews, a reporter at Mother Jones magazine who covers abortion and is based in Nashville, has also noticed a more heated environment, she told CPJ in a phone interview.

When a source who works in abortion rights called to say that anti-abortion activists had damaged her house and car, Andrews, who has a book about abortion rights coming out this fall, began reassessing her own risk profile.

Things just feel a little more charged than they have previously, said Andrews, adding that her identity as a white staff reporter adds a layer of privilege that others do not necessarily enjoy. Id like to say it all [the threats to advocates and sources] doesnt have a chilling effect but its messy.

Shifting legal landscape

The Supreme Court decision to overturn the constitutional right to abortion has also ushered in a new era oflegal uncertaintyfor pro-abortion activists, medical providers, and patients, as well as the journalists who cover them.

Journalist Rosemary Westwood, one of the few reporters in the Deep South on the reproductive health beat, chronicled the closing of Mississippis last abortion clinic at the center of Dobbs v. Jackson Womens Health Organization case in a podcast calledBanned.

She told CPJ in a phone interview that she began to fear that her reporting could be used against her sources after Roe v. Wade fell.

I was reporting on things that were completely legal they were just controversial. And now Im reporting on stuff thats going to be illegal, which is a completely different landscape, Westwood said.

According to Gabe Rottman, director of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press, a non-profit that provides free legal resources for journalists, Westwood is right to be concerned.

People need to know what the fallout of theDobbsdecision looks like on the ground, which creates a professional obligation for journalists to tell the story, he told CPJ in a phone interview. He fears that legislation in states where abortion is newly restricted could compel reporters to compromise their sources.

He pointed toBranzburg v. Hayes, a 1970s case in which prosecutors forced a reporter to hand over source information, arguing that the source, a drug dealer, was committing a crime. A court could, in theory, attempt to use this same argument to compel reporters to turn over identifying source material from their abortion coverage.

There are, of course, First Amendment arguments you could make if that kind of situation arose [around abortion], Rottman said. But the fact that this is even in the realm of possibilities is itself cause for concern [T]he temptation to push the envelope can itself impact newsgathering and reporters ability to report on abortion after Dobbs.

For some news organizations, the possibility of legislation that increasingly could limit speech around abortion has also stoked concerns.

The National Right to Life Committee (NRLC), an anti-abortion activist group, drafted proposed state-levellegislation that would make it illegal to host or maintain a website that encourages or facilitates efforts to obtain an illegal abortion, though the phrasing leaves it unclear if journalists covering the procedure and where it is offered could be implicated.

In South Carolina, lawmakers introducedlegislationthat echoes that proposed by the NRLC, and which would make it illegal to host a website or [provide] an internet service with information that could direct people to an abortion. The bill drewnationalattention when it was introduced in June, but South Carolinas Republican governor, Henry McMaster,said in Augustthat the restriction on speech about abortion was unconstitutional and is not going to see the light of day.

Though the First Amendment should, in theory, protect reporters, [j]ust because something like this seems like it shouldnt hold up in court doesnt mean that it wont, said Ashton Lattimore, the editor-in-chief of the independent non-profit news outletPrism, which focuses on justice reporting and has supported abortion access.

There are plenty of times in the past when a newsroom has been sued into non-existence by a bad faith actor who got ahold of some law or piece of reporting, Lattimore said. Lawsuits are a handy way to distract us from doing work and tie up the financial resources that we would need to stay afloat. Thats one of our biggest concerns.

As legal debates around abortion access continue, journalists covering protests both in favor of and against restrictions have also faced threats. The U.S. Press Freedom Tracker, which CPJ co-founded, has documented atleast 14 incidents since the Dobbs decision was leakedin which journalists were detained or assaulted covering abortion-related protests.

Based on staff feedback, Rewire decided to shrink the size of its press badges, a trend that CPJ hasdocumentedin other U.S. newsrooms due to the increased targeting of journalists by law enforcement and demonstrators at protests.

U.S. journalists are not alone in the need for precautions when covering abortion and the issues attendant protests. In Poland, journalists wereharassed, and somearrested,covering womens marches held in protest of the countrys abortion ban in 2020. And in Brazilin 2019, a feminist outlet, AzMina faced retaliation after publishing information about abortion access.

While it remains to be seen just how severely the new abortion landscape will impact the right to report in the U.S., journalists and newsrooms are paying attention more keenly than ever.

My experience in the South is that the bulk of the anti-abortion movement, the religious and political groups, have so much power that threatening my physical safety has been nowhere on their list of ways to get what they want. They have so many other tools and avenues to advance their cause, said Westwood. I think its still too early to know where all of that energy and focus and anger thats been directed at abortion is going to go.

Excerpt from:
U.S. reporters wary of online, legal threats in the wake of the overturn of Roe v. Wade - CPJ Press Freedom Online

In Franklin, Tennessee, the sun may be setting on residents' ability to participate in public demonstrations free of government interference. As part of city guidance that is "intended to facilitate the safe exercise of First Amendment rights," Franklin officials explain, they are significantly restricting when, where, and how residents may participate in any "public gathering and expression event."

Per an ordinance passed unanimously by the Franklin Board of Mayor and Aldermen (BOMA) last week, the city will not grant permits for any public gathering and expression events taking place after dark, nor will any event that does not require a permit be allowed to take place in the city after dark. The ordinance also prohibits expression events from taking place in the Downtown District between 5 p.m. on Fridays and 7 a.m. on Saturdays, as well as between 5 p.m. on Saturdays and 7 a.m. on Sundays.

Franklin's code defines public gathering and expression events as instances of "noncommercial public assembly" that take place on public property, are "likely to obstruct" vehicular or pedestrian traffic, or have over 20 participants. The ordinance also introduces restrictions targeting "events which require amplification or which occur more than once per month (regardless of size)," according to a background document prepared by city officials. Violations of the ordinance will carry a misdemeanor charge resulting in a citation.

"We as the city have the ability to navigate and to manage time, place and manner that those demonstrations happen," City Administrator Eric Stuckey said in June when the rule changes were first being considered. The city's background document claims that the ordinance will ensure Franklin "provides protection to all who wish to exercise" their First Amendment rights.

In 2019, BOMAadopted a structure to permit public gathering and expression events. That move followed white supremacist rallies in Charlottesville, Virginia, and nearby Shelbyville, Tennessee. "We saw it as a way to facilitate the exercise of First Amendment rights," said Stuckey of the permitting structure.

Franklin officials first floated the new restrictions on expression events at a June 14 meeting. City Attorney Shauna Billingsley outlined the ban on demonstrations after dark, saying, "We really don't think that's a safe thing for really anyone." The proposed restrictions originally included a ban on expression events from 5 p.m. on Fridays through 7 a.m. on Mondays in the downtown historic district, though this was ultimately scaled back.

"The reason for that" weekend ban, Billingsley explained, was that "it seems as though after work on Friday, our downtown turns into something different. It's much more shopping and eating, more social events and those kinds of things. So we're not sure that protests in the heart of downtown during the weekend should be permitted." She also stressed that "safety is important," noting that "police officers can't really watch over people in the dark."

As much as city officials stress this ordinance will protect First Amendment rights, it raises obvious concerns on that front. "Threatening misdemeanors for expressive activity after dark is going to put Franklin [on] a collision course with the First Amendment," says Adam Steinbaugh, attorney at the Foundation for Individual Rights and Expression. "Municipalities can impose content-neutral limits on the time, place, or manner of expression, but those limits have to be reasonable and this isn't." For one, he explains, "not everyone can protest during the workday and a lot of expressive activity necessarily occurs in the evening."

What's more, the ordinance's broad wording may come to target completely innocuous expression events. "You want to tell me the city of Franklin wants to issue misdemeanors for Christmas carolers or people holding a candlelight vigil?" asks Steinbaugh. The potential for uneven enforcement also lingers. Steinbaugh offers a hypothetical: Will Franklin police be more likely to write up 21 Christmas carolers or 21 people protesting the police if both groups are violating the ordinance?

"The sun doesn't set on the First Amendment," says Steinbaugh. "Franklin's leaders should reconsider."

Follow this link:
Tennessee Town Restricts Protests, Says It's Protecting First Amendment - Reason

H.Res.1305 proposes to place a special designation on a religion. As the House of Representatives has never placed a favored status on any religion, this bill would constitute a violation of our Constitution.

August 30, 2022The Honorable Al Green9th Congressional District of Texas2347 Rayburn House Office BuildingWashington, DC 20515

CC: Speaker Nancy Pelosi, Minority Leader Kevin McCarthy, Minority Whip Steve Scalise

Dear Representative Green,

On behalf of the 2.3 million members of AMAC the Association of Mature American Citizens, including over 1,200 residing in TX-09, I write to express our opposition to H.Res.1305.

H.Res.1305 proposes to place a special designation on a religion. As the House of Representatives has never placed a favored status on any religion, this bill would constitute a violation of our Constitution.The First Amendment of the Constitution of the United States prohibits the House from advancing this kind of resolution, see the text below:

First Amendment: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.

If the House of Representatives were to recognize any religion as one of the great religions of the world that action would constitute a violation of the First Amendment Establishment Clause.The Establishment Clause prohibits the government from instituting a national religion, but it also prohibits government from favoring, or promoting one religion over another.

For your reference, a letter regarding Federal Law Protections for Religious Liberty from the Attorney General of the United States, posted in the Federal Register (82 FR 49668), addresses this specifically in the following excerpt:

Government may not officially favor or disfavor particular religious groups. Together, the Free Exercise Clause and the Establishment Clause prohibit government from officially preferring one religious group to another.

We respectfully ask you, Representative Green, and your cosponsors, to honor the intent of our founders, to support and defend our Constitution, and to remember that the First Amendment protects all Americans, practicing any religion, from government interference in the free exercise of their faith; by withdrawing H.Res.1305.

Sincerely,Bob CarlstromPresidentAMAC Action

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Opposes House Resolution that Violates the First Amendment - AMAC - The Association of Mature American Citizens - AMAC

On June 29, 2022, the United States Court of Appeals for the Third Circuit upheld the preliminary injunction of the United States District Court rescinding discipline placed on Port Authority employees who wore Black Lives Matter masks in violation of Port Authority policy.

Around April 2020, early in the COVID-19 pandemic, Port Authority of Allegheny County (Port Authority) required all uniformed employees to wear face masks to work. Some of the masks worn by the employees included social and political messages, and in July 2020, Port Authority prohibited face masks inscribed with social and political messages, including statements supporting the Black Lives Matter protests, statements supporting the police, or statements opposing the then-ongoing mask mandates. Decision at p. 4. When several employees continued to wear masks expressing support for Black Lives Matter, Port Authority disciplined the employees for violating policy and, in September 2020, imposed additional mask restrictions, limiting the types of masks that employees were required to wear. Id.

The employees, together with their union, Amalgamated Transit Union Local 85, sued Port Authority, arguing that the policy violated the employees First Amendment rights. The United States District Court for the Western District of Pennsylvania then entered a preliminary injunction, rescinding Port Authoritys discipline of the employees and stopping Port Authority from enforcing the policy against Black Lives Matter masks. Port Authority appealed to the United States Court of Appeals for the Third Circuit, asking for the appellate court to reverse the District Courts granting of a preliminary injunction.

In a unanimous decision, the U.S. Court of Appeals upheld the District Courts preliminary injunction, determining that, at this early stage of the litigation, Port Authority was unlikely to succeed on the argument that it did not violate their employees First Amendment rights.

Government Employee Speech

It is true that government employees receive less First Amendment protection than private citizens. As the U.S. Court of Appeals noted in its decision, public employees historically had no right to object to conditions placed upon the terms of employment including those which restricted the exercise of constitutional rights. Decision at pg. 8 (citing Connick v. Myers, 461 U.S. 138, 143 (1983)). However, with the risk that the restrictions of public employment may chill the speech of government employees due to the fear of being fired, courts have since adopted a balancing test, weighing an employees interest in speaking against a government employers interest in quelling that speech. Id. A chilling effect occurs where a policy punishes protected speech before it is actually spoken. This has the effect of chilling individuals from making their constitutionally protected speech due to fear of repercussions.

That said, a government employees speech, however, must meet two threshold criteria in order to qualify for the interest balancing analysis: (1) an employee must speak as a private citizen rather than as someone exercising their official duties and (2) the employees must be speaking on a matter of public concern, rather than on their personal interests. Id. (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 168 (3d Cir. 2008).

Upon review, the U.S. Court of Appeals determined that the employees speech met these criteria. Their speech was not pursuant to their official duties and their speech was certainly on matters of public concern.

Employee Discipline

The Court considered two issues related to the expressive speech: (1) Port Authoritys discipline of the employees, and (2) whether Port Authoritys mask policy had a chilling effect on employee speech. These two issues are decided on different standards.

The first issue, the employee discipline, applies the analysis in Pickering v. Board of Education, 391 U.S. 563 (1968). In Pickering, a court considering a restriction of employee speech must balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Pickering, 391 U.S. at 568.

In this analysis, the Court determined that the employees had a strong interest in making the speech, citing precedent which found that speech involving government impropriety occupies the highest rung of First Amendment protection. Decision at pg. 11 (citing Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 472 (3rd Cir. 2015)). On the other hand, the Court determined that Port Authority could only demonstrate a minimal risk that the speech would cause workplace disruptions, only citing one employee complaint, electronic messages expressing differing opinions on the Black Lives Matter movement, and three race-related incidents which all preceded, and were unrelated to, the mask policy. Decision at pg. 11. The Court also noted that Port Authority itself expressed support of the Black Lives Matter movement after the July policy was put into place, it had previously expressed support for African American heritage celebrations, and has, in the past, allowed employees to wear political buttons and hats despite these buttons and hats being a violation of uniform policy. Id.

Thus, applying the balancing analysis, the Court determined that Port Authority was not likely to succeed on the merits given its minimal showing of risk.

The Masking Policy

When considering whether a policy is likely to have a chilling effect, courts apply the standard laid out in United States v. National Treasury Employees Union (NTEU), 513 U.S. 454 (1995).

Under this standard, when a policy chills potential speech before it happens . The Governments burden is greater than with respect to an isolated disciplinary action. NTEU, 513 U.S. at 468. This analysis does not only require a court to examine a specific speech in question, but the broad range of present and future expression that the rule chills and the interests of present and future speakers and audiences. Decision at pg. 10 (citing NTEU, 513 U.S. at 468).

This standard requires that the government, and in this case, Port Authority, bear the burden of showing that the impact that the employee speech has on the actual operation of the government outweighs the employees interest in the speech. Decision at pg. 12. In order to make this showing, the government must show (1) that there is a real, and not merely conjectural harm, and (2) its policy was narrowly tailored to address these real harms. Id (citing NTEU, 513 U.S. at 475).

Upon review, the Court determined that Port Authority had shown a real harm, as the views expressed on the masks led to employees engaging in heated arguments, with management becoming involved because of an employee complaint of a Black Lives Matter mask. Decision at pg. 12. The protests and riots that followed the Black Lives Matter demonstrations made Port Authority concerned that severe disruption would likely follow mask-related controversy. Id. Further, Port Authority also noted that other political speech had disrupted Port Authoritys operations in the past. Id at pg. 13. However, the Court also noted that employees have worn political buttons in the past which were not disruptive to Port Authority operations. Further, the court also noted that employee dissension due to the expressive speech made by Port Authority did not disrupt Port Authority operations in the past. Id. Thus, while the Court determined that the disruption posed by controversial masks was more than merely conjectural, it also found that Port Authority could not show that the broad range of expressions that the mask policy banned was meant to stop actual harm. Id.

Second, the Court determined that Port Authority did not meet its burden of showing that the policy was narrowly tailored to the preventing the disruption to their operations. Id at pgs. 16-17. Specifically, the Court determined that the policy was overbroad, in that it banned a wide variety of expressive social-issue and political speech that employees have long engaged without causing disruption. Id at 14. The Court also determined that the policy was underinclusive, in that it forbade expressive political speech on masks, but did not restrict verbal or written speech, which the court notes, also has the potential for disruption. Id. at 15.

The Court, therefore, determined that Port Authority did not meet its burden showing that its policy was narrowly tailored to the harm that it identified. The facts, the Court wrote, suggest that prevailing political conditions, rather than employees mode of speech, dictates how contentious employees workplace political debates will be. Port Authority makes no showing that preventing mask-related disputes will redress the disruption it fees. Id. Even balancing this with the factors in Port Authoritys favor still weighed against Port Authority.

Thus, the Court determined that Port Authority was unlikely to prevail on the merits as both the discipline of the employees and the policys chilling effect on the speech were likely in violation of the First Amendment. The Court of Appeals went on to review the other factors necessary to decide a preliminary injunction and affirmed the District Courts order.

It is important to note that the Court of Appeals decision was narrow to the facts at hand, leaving open the door that [a]nother policy, another message, a uniform requirement, or another set of interests may be different. Decision at pg. 22. Nevertheless, the decision of the Court of Appeals reiterates the importance of public employees First Amendment rights and the standards that government employers must meet in order to craft policies necessary for their operation while also recognizing employee rights.

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Third Circuit Upholds Preliminary Injunction in Government Employee First Amendment Masking Case - JD Supra