Category Archives: First Amendment

On Aug. 8, a federal judgeagreedto halt enforcement of a Florida law that prohibits businesses from requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or services from the business operations in this state. The company that owns Norwegian Cruise Line brought the claim, arguing, among other things, that the law violates the First Amendment.

While the case may seem attenuated from both media law and technology, it actually grapples with an emerging issue weve been covering the extent to which nominally economic regulations that unduly burden protected speech are constitutional. That question wasfront-and-centerin the Trump administrations efforts to use emergency economic powers to shutter the communications platforms TikTok and WeChat by effectively prohibiting other businesses from providing them certain services.

The cruise line decision, by Judge Kathleen M. Williams of the U.S. District Court for the Southern District of Florida, is a pretty by-the-book application of First Amendment doctrine. She first determines that the law is content-based because businesses are free to require COVID-19testresults and othernon-COVID vaccination information, among other things.

She then rejects Floridas argument that, because the law only prohibits a single act, conditioning service on presenting a vaccine document, it is merely a bar on business-related conduct, not a restriction on speech. As noted, thats effectively the argument the federal government made in the TikTok case that prohibiting internet services from, for instance, hosting TikTok content, was merely a business-to-business restriction that did not trigger First Amendment scrutiny. (In ourfriend-of-the-court brief, we noted that business-to-business transactions, like buying paper or ink, are a matter of survival for media entities.)

Judge Williams then directly addresses exactly that concern that simply labeling a law as economic regulation could permit the state to disfavor certain types of speech, which has always been of significant concern for press rights, particularly in a string of U.S. Supreme Court cases dealing with discriminatory taxation schemes and beginning with the Huey Long-eraGrosjean v. American Press Co.

By characterizing certain laws as regulation of economic conduct, Judge Williams wrote, laws that restrict bookstores fromsellingbiographies or prohibit video rental shops fromrentingdocumentaries also could evade First Amendment scrutiny under the logic that they merely affect what businesses cannotdo and not what they may or may not say, despite the significant burdens they impose on protected expression.

That is exactly the concern we identified in the TikTok and WeChat cases, and one that continues to percolate in various proposals to regulate content moderation online.

Well continue to follow this one.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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Cruise ships, COVID, TikTok and the First Amendment - Reporters Committee for Freedom of the Press

(Reuters) - A free-speech advocate and Pennsylvania attorney has renewed his bid to block the adoption of a now-revised anti-harassment and discrimination rule for lawyers, which is set to go into effect Wednesday.

Attorney Zachary Greenberg filed an amended complaint Thursday in Philadelphia federal court following the Pennsylvania Supreme Court's adoption of an amended Rule 8.4(g).

Greenberg had successfully challenged the state's adoption of the American Bar Association-backed Rule 8.4(g) last year -- a federal judge blocked its implementation in December, finding it would chill an attorney's right to free speech outside of the courtroom or a pending case.

After abandoning an appeal to the 3rd U.S. Circuit Court of Appeals in March, the state amended Rule 8.4(g) in July.

"It's different, but it still suffers from the fatal flaws that caused the earlier version to violate the First Amendment," said Ted Frank, whose Hamilton Lincoln Law Institute is representing Greenberg.

Greenberg has asserted that the rule's broad scope puts him unfairly at risk of violations due to his job as a program officer for the non-profit Foundation for Individual Rights in Education, which involves presenting and writing about offensive and derogatory language, including racial and homophobic slurs.

Even if the state promised not to pursue disciplinary charges against him, Greenberg said he would have to censor himself out of fear of inadvertently offending someone, who in turn might file a complaint against him.

The old version of the rule said attorneys must not "by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination," while the new rule prohibits attorneys from "knowingly [engaging]" in that conduct. The new Rule 8.4(g) also further defines the practice of law, harassment and discrimination.

Despite the revisions, the new Rule 8.4(g) restricts freedom of speech and expression at speeches, debates and CLE presentations, Greenberg alleges. The new rule also has "novel, expansive, and vague definitions" of harassment and discrimination that are not tied to state or federal law, his new complaint says.

U.S. District Judge Chad Kenney in December held that the old Rule 8.4(g) "will hang over Pennsylvania attorneys like the sword of Damocles." He criticized the rule as promoting a "government-favored, viewpoint monologue" that "creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends."

The defendants in the case are members of the state Supreme Court's disciplinary board and its prosecutorial arm, the office of disciplinary counsel. Spokespersons for the Administrative Office of Pennsylvania Courts, which is representing the defendants, declined to comment.

The case is Greenberg v. Haggerty, et al, U.S. District Court for the Eastern District of Pennsylvania, No. 20-cv-03822.

For Greenberg: Adam Schulman of Hamilton Lincoln Law Institute

For defendants: Michael Daley and Megan L. Davis of Administrative Office of Pennsylvania Courts

Read More:

Pa. drops appeal over attorney conduct rule that drew free speech activists' ire

Pennsylvania turns to 3rd Circuit in fight over ABA-backed professional rule

Judge blocks anti-harassment rule for Pa. lawyers, citing its 'constant threat' to free speech

Pennsylvania lawsuit sets up fight over anti-harassment rule for lawyers

David Thomas reports on the business of law, including law firm strategy, hiring, mergers and litigation. He is based out of Chicago. He can be reached at d.thomas@thomsonreuters.com and on Twitter @DaveThomas5150.

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Pa. attorney sues to stop resurrected anti-discrimination rule - Reuters

COLUMBUS, Ohio, Aug. 19, 2021 /PRNewswire/ --Isaac Wiles & Burkholder, LLC (Isaac Wiles), a full-service law firm in Columbus Ohio, is proud to announce that thirteen of their attorneys have been recognized as Best Lawyers in America2022 in Columbus, OH and their Managing Partner, Mark Landes, has been named "Lawyer of The Year" 2022, First Amendment Law, in Columbus by Best Lawyers, the prominent legal peer review and rating organization.

Isaac Wiles Best Lawyers in America 2022 includes the following attorneys and the specialized practice areas they are recognized for:

Donald C. Brey

Administrative / Regulatory LawCommercial LitigationLitigation - First Amendment

David M. Whittaker

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization LawLitigation Bankruptcy

Maribeth Meluch

Commercial LitigationLitigation - Intellectual Property

Bruce H. Burkholder

Construction LawLitigation - Real EstateReal Estate Law

Gregory M. Travalio

Consumer Law

Timothy E. Miller

Corporate Law

William J. Browning

Elder Law

Jeffrey A. Stankunas

Employment Law - ManagementLabor Law - ManagementLitigation - Labor and Employment

Christopher J. Geer

Family Law

Frederick M. Isaac

Family Law

Thomas L. Hart

Land Use and Zoning LawLitigation - Land Use and ZoningReal Estate Law

Mark Landes

Litigation First Amendment, "Lawyer of the Year 2022"Litigation - Labor and EmploymentLitigation - Municipal

Philip K. Stovall

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization LawLitigation Bankruptcy, "Ones to Watch 2022"

Recognition byBest Lawyers is based entirely on peer review in the legal industry. Their methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services. Recognized attorneys have earned the respect of their peers within their specialized practice areas.

Additional recognitions are also awarded to individual lawyers with the highest overall peer-feedback for a specific practice area and geographic region. Only one lawyer is recognized as the "Lawyer of the Year" for each practice area specialty and location.

Isaac Wiles holds a unique position among Ohio law firms. Built to serve the needs of middle-market businesses as well as closely held companies and high-income individuals, our full-service firm leverages strong ties to Ohio's legal and business community. Always approachable, honest and hard-working, we're true to our Midwestern roots. The result is a firm with an entrepreneurial mindset, a collaborative team of sharp thinkers that's always invested in our clients' success.

SOURCE Isaac Wiles Law Firm

http://www.isaacwiles.com

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Thirteen Isaac Wiles Attorneys Recognized as Best Lawyers in America 2022 and Managing Partner, Mark Landes is Recognized as "Lawyer of The...

Kathy Weaver| Columnist

The United States of America is not a Christian nation;our Constitution is not based on the Bible.In fact during the Constitutional Convention when Benjamin Franklin motioned they open meetings with a prayer, no vote was taken, the motion died and the Convention openwithoutprayer.

Our Founding Fathers in their wisdom excluded any mention of"God,theAlmighty or any euphemism for a higher powerinthe Preamble or our Constitution.Religious freedom was so important, it came first in our Constitution's Bill of Rights.

Amendment I; "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"It forbids the government from promoting one religion over another and says everyone has theright to practice his or her own religion, or no religion at all.

The current challenge to religious freedom is from Christian nationalism (white cultural conservatives) who want to establish a theocracy. They fear white Christians are losing their majority with the increase of a more diverse population as reported by the current United States' census.

WhiteChristians have had a long history of association with white supremacists. During the Jim Crow era, they were the defenders of lynching Negros and considered it an "act of their Christian duty, consecrated as Gods will against racial transgression."They've used their interpretation of the Bible to call Black people an inferior race, approve of the practice of slavery, oppose inter-racial and same-sex marriages and demonizing the LGBTQ community.

They claim victimhood when they aren't allowed to discriminate in hiring or firing employees', adoptions, and foster careagainst people of color, immigrants, those of other religions, same sex couples, gender and sexual minorities in their Christian business dealings and tax payer funded social services.They use their religious freedom as a sword, against these minorities who become the real victims of discrimination.

Supported by Christian nationalists, during the last 4 1/2 years we've seen Trump with federal and state Republicans approving unconstitutional laws that infringe on our freedoms:

Laws banning Muslims from traveling to our country and opposing immigration from countries with black and brown majority populations;

Laws requiring bible based creationism be taught in public schools, rejecting the science of evolution;

Laws limiting the teaching in our public schools of America's history of racial injustice, a political white wash of history;

Laws prohibiting transgender women/girls from participating in public school sports;

Laws promoting school-led prayers, moments of silence and Bible studies in public schools (our children never lost their rights' to pray and read their Biblesto themselves in public school);

Laws restricting women's right to contraceptives and their right to an abortion;

Laws banning requirements for face masks and proof of vaccinations while allowing churches to reject health safety guidelinesduring a pandemic;

Laws restricting the voting rights of Black and brown communities, responding to non-existent voter fraud;

Laws criminalizing peaceful protesters and legalizing vehicular homicide after Black Lives Matterprotests.

On Jan.6, Christian nationalists joined domestic terrorists in the violent insurrectionist attack on our nation's Capitol and the Capitol police. They joined white nationalist, white supremacists, anti-Semites, neo-Nazis, Proud Boys and the Oath Keepers in this treasonous coup to overthrow our democracy, attemptingto stop Congress's certification of President-elect Biden's Electoral College victory. They supported Trump, the wannabe authoritarian ruler who lost the election.Following their belief, this is a holy war against the anti-Christ, Joe Biden, and other U.S. government leaders.

Many Christian clergy and laypeople oppose Christian nationalism's mixing of church and state, distorting both Christian faith and our constitutional democracy which gives everyone the freedom to participate in our country's many diverse religious denominations.

White Christian nationalists, backed by elected officials and a conservative justice system, will continue to pass laws that restrict the rights of women and minorities.

Voters need to recognize white Christian nationalists aren't saving souls through religious freedom but using politics in an attempt to establish their theocracy, end our First Amendment rights to religious freedom and our constitutional democracy.

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From the Left: The United States has never been a Christian nation, for good reason - Daily Commercial

Great news: Google has turned us into armchair experts on everything. In just a few minutes, we can know better than experts who have committed their entire careers to complicated scientific subjects.

Thanks to social media, each of us is now our own talking head in a 24/7 outrage news cycle. Reporting live from an undisclosed echo chamber: I have some stuff to say about stuff.

That athlete wore what? For me, its Spandex or nothing!

A school board in another state is allowing hoverboards? How dare they?! Hoverboards have been known to cause toe cramps, which can lead directly to higher high school dropout rates! I read about it on my moms former doctors Facebook page.

Unprecedented instant access to information and misinformation has blurred the lines on what constitutes a fact. As a result, we can confirm any of our biases simply by re-posting headlines of articles we havent even read.

Do we really need to have an opinion on everything?

We are a fired-up people. We have hot takes on everything from health to sports to politics everything is fair game in our no-holds-barred arena of digitally shielded keyboard warriors. And any post can serve as an online hand grenade or myopic mic drop moment.

Heres an un-researched fact: No one has ever changed her mind in the comments section of a Facebook post. In the history of Twitter, a hot-take argument has never made someone go, You know what? I was wrong; Earth may be round after all.

I realize the irony here. Im writing my hot take on hot takes. Youre probably reading this online, and you can feel free to disagree vehemently with your own hot take on my hot take on hot takes. Take it or leave it.

The point is, just because we have the opportunity or freedom to tee off with our half-baked opinions doesnt mean we should. After all, if everything is important, nothing is important.

We have the right to free speech protected by the First Amendment right? This was the capital F, capital A First Amendment! Number one! Your neighbor has a right to air his unpopular, morally repugnant opinion on Facebook doesnt he?

You may be surprised to learn that the answer is a big, fat nope. The First Amendment only protects us from the government. As private companies, Facebook, Twitter, et al. have no obligation to allow their users to say whatever they want. In the same way that a newspaper or other media entity has no obligation to publish your article (or mine, for that matter), a social media company does not have to allow any of us to offer our opinions on its platform. You are subject to its policies, terms and conditions.

Furthermore, you can actually get fired for the way you express your free speech. With a few exceptions, your employer can give you the boot for the views you articulate on social media. In addition, your social media timeline could prevent you from getting hired by a potential employer. This is something to consider.

I have no doubt that social media has accelerated the ideological and cultural divides in the U.S. We need to learn how to discern credible sources from run-of-the-mill hokum. We need to actually read the articles were posting that enforce our decidedly unbudging views. Frankly, we need to be a hell of a lot kinder to each other. If we aim to teach our kids and grandkids to be nicer, we need to model the civility we want to see the next generations of American leaders to express.

Maybe just maybe the world doesnt need our hot takes on the outrage du jour. I miss the version of the internet that was mostly videos of cats falling off furniture and babies making funny faces. Lets all take a deep breath, watch a funny cat video or two and then decide whether or not our diatribe is worth the rise in everyones collective blood pressure.

Curtis Honeycutt is a syndicated humor columnist. He is the author of Good Grammar is the Life of the Party: Tips for a Wildly Successful Life. Find more at curtishoneycutt.com.

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Curtis Honeycutt: Pump the brakes on the hot takes - Berkshire Eagle

The U.S. Department of Educationannounced Aug. 19 that it anticipates rescinding parts of a rule enacted by the Trump administration that forces universities to financially support religious student groups that discriminate.

This November 2020 reinterpretation of the Free Inquiry Rule has been challenged in court by Americans United for Separation of Church and State and American Atheists, on behalf of the Secular Student Alliance and a California university student.

The legal challenge, Secular Student Alliance v. U.S. Department of Education, was filed on Jan. 19, 2021, the final day of the Trump administration.

According to the Trump administration change, public colleges and universities are required to exempt religious student clubs from nondiscrimination requirements that apply to all other student clubs officially recognized by the schools and funded by activity fees paid by all students. The rule gives student clubs the right to use religion to discriminate while still receiving official university recognition and funding.

The rule gives student clubs the right to use religion to discriminate while still receiving official university recognition and funding.

Often, this discrimination targets students who are LGBTQ, differently abled, religious minorities or nonreligious. Already, faith-based schools are allowed to apply to the Department of Education for exemptions to federal anti-discrimination laws and that, too, is being challenged in court by another class-action lawsuit.

The lawsuit regarding the Free Inquiry Rule argues that former Secretary of Education Betsy DeVos did not have authority to issue the new interpretation, ignored the harms that the rule will cause to students and their schools, and imposed requirements that directly conflict with the U.S. Constitution as well as statutory nondiscrimination laws.

In announcing the review and likely reversal of the Trump administration rule, Michelle Asha Cooper, acting assistant secretary for the Office of Postsecondary Education, said, all institutions of higher education receiving Federal financial assistancemust comply with applicable federal statutes and regulations that prohibit discrimination.

While review the last-minute Trump regulations, the current Department of Education staff will keep in mind the importance of First Amendment protections, nondiscrimination requirements and the promotion of inclusive learning environments for all students, she said. Following completion of our review, we anticipate publishing a notice of proposed rulemaking in the Federal Register to propose rescinding parts of the Free Inquiry Rule.

Compliance with nondiscrimination requirements must be in a manner consistent with the First Amendment.

That would, in turn, open a period of public comment before the changes could be finalized.

But Cooper asserted: Throughout this process and beyond, public colleges and universities must ensure protection of First Amendment freedoms, including religious freedom and freedom of association, which long predate the Free Inquiry Rule. Compliance with nondiscrimination requirements must be in a manner consistent with the First Amendment.

Americans United and the other advocates in the lawsuit welcomed this news and said they will ask the U.S. District Court for the District of Columbia to stay the lawsuit to give the department time to rescind its regulation.

We applaud the Department of Education for its willingness to reconsider this harmful regulation, and for sending the message to colleges, universities and their students that this wrong may soon be righted, said Richard Katskee, vice president and legal director of Americans United. We anticipate that the Biden administration will agree with us that discrimination has no place in our public colleges and universities even if religion is used to justify it.

Related articles:

Trump executive order diverts federal funds to private school vouchers under cover of COVID-19

25 faith-based schools named in LGBTQ discrimination case against Department of Education

Baptist schools seek waiver from LBGT discrimination ban

LGBTQ-friendly student group, alumni vow to fight for inclusion at Baylor

From Massachusetts to Missouri, faith-based schools seek to shield governance under religious exemptions

Excerpt from:
Biden Education Department hopes to reverse last-minute Trump allowance of campus discrimination based on religious beliefs - Baptist News Global

A teacher in the Alpine School District is no longer working there after a recording of her surfaced talking about the need for people to get the COVID-19 vaccine, her disdain of former President Donald Trump and telling students they can get out if they dont believe in climate change.

The video was shared widely on social media, with many comments calling for the teachers removal.

District spokesperson David Stephenson said he couldnt comment whether the teacher had been fired or resigned, but referred to Alpines Code of Conduct, which states employees and volunteers are expected to act professionally communicating in a civil manner and not promoting personal opinions, issues or political positions as part of the instructional process.

We expect professional conduct and decorum from all of our teachers, Stephenson said in an email. Behavior otherwise that is in violation of the code of conduct will not be tolerated.

Brad Asay, president of the Utah chapter of the American Federation of Teachers, said the incident was unfortunate, but unusual in his experience.

He said teachers have always had to navigate politically-sensitive territory, but it can be especially tricky in the current climate. As the New York Times wrote, nearly all of the major issues dividing the country have dropped like an anvil on U.S. schools, from debates around mask mandates and other public health measures to conservations around race and educational equity.

That's my worry, is that folks out there, especially those that believe that students are being indoctrinated, that they have this belief that's happening all the time throughout our school system, Asay said. What we saw [in the video] was not the norm. This just does not happen often at all.

The American Civil Liberties Union of Utah notes there are many limitations to teachers First Amendment rights in the classroom as it can be considered speech on behalf of the school district. Specific policies can vary widely by district.

The issue gets blurry, however, when it comes to things like public health measures around COVID-19, which may not be political issues at their core but have become so over the last year.

We are in a lot of gray area right now of what can you discuss in a classroom, especially when it comes to COVID, Asay said. A lot of districts are saying don't even mention it.

When sensitive topics inevitably come up, he said the usual approach is that teachers try to keep the discussion open, encourage students to voice their opinions but bring the focus back to the curriculum or subject at hand.

He said he often advises teachers to assume they will be recorded and watched closely, though its less of a warning than a reminder that students are looking to them as examples.

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Navigating Free Speech In The Classroom Is Getting Harder For Teachers When Schools Are At The Centers Of Political Debates - KUER 90.1

Federal leaders are on alert for increased threats of terrorism here at home.

This month, the Department of Homeland Security recently issued a warning about heightened threat levels leading up to the 20th anniversary of the 9/11 attacks.

Federal authorities are pointing to incidents like Thursdays bomb threat near the Library of Congress.

US Capitol Police investigators say bomb threat suspect Floyd Ray Roseberry was acting alone when he threatened to have explosives in this pickup truck.

But in a Facebook live video, Roseberry said there were others like him.

Weve seen an increasing drumbeat of conspiracy theories in the United States, some funneled by nations like Russia and China who are trying to stoke those disputes here in the United States, said Jamil N. Jaffer, who teaches classes on counterterrorism, intelligence, surveillance and cybersecurity at the Antonin Scalia Law School at George Mason University.

Jaffer is also the founder and executive director of the National Security Institute on campus. He said domestic extremists are getting bolder, often using social media to motivate others to act.

He said the real challenge is watching how people respond to those posts.

How do they act on it? How do they respond to it? If Americans reject this kind of behavior, reject this kind of stuff on social media and they hold them accountable, well see some of this stuff go away, he said.

The Department of Homeland issued this new National Terrorism Advisory System (NTAS) Bulletin aboutheightened threat environment across the United States.

DHS remains committed to sharing timely information with the public about the heightened threat environment in order to protectcommunities acrossourcountry,said Secretary of Homeland Security, Alejandro N. Mayorkas in a written statement.Todays NTAS Bulletin advisesthe public about theheightenedthreat landscape we faceand howDHSis working with our partners, at every level of government and in the community, tocombatdomestic terrorism and targeted violence in all its forms. We are committed to ensuring every initiative undertaken by DHSin response to the threatis consistent with privacy protections, civil rights and civil liberties, First Amendment-protected rights, and other applicablelaws.

Jaffer said the international terror threat changed overnight as Afghanistan fell to Taliban control.

Its critical for the Presidents national security team to really keep up that fight against the terrorists and if they need to go back into Afghanistan or anywhere else, they need to do that if it keeps Americans safe, said Jaffer.

DHS is also on alert for people who are inspired by foreign terrorists.

2021 Cox Media Group

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Heightened threat alert for domestic terrorism ahead of 9/11 anniversary - ActionNewsJax.com

The state of Iowa has agreed to pay $70,000 and improve First Amendment training for state troopers in order to settle a lawsuit filed last year by five protesters who were banned from the Iowa Capitol Complex.

Jalesha Johnson, Louise Bequeaith, Brad Penna, Brandi Ramus, and Haley Jo Dikkers were among seventeen people whom state troopers had banned from the capitol grounds following a July 1, 2020 Black Lives Matter protest that led to numerous arrests. They filed suit last October against Iowa Department of Public Safety Commissioner Stephen Bayens and several Iowa State Patrol officials, saying the bans violated their rights under the First, Fifth, Ninth, and Fourteenth Amendments.

Under a settlement U.S. District Court Judge Rebecca Goodgame Ebinger approved on August 17, the Iowa Department of Public Safety and Iowa State Patrol agreed to withdraw all verbal and written bans, sometimes called trespass warnings, issued to each plaintiff and other persons receiving such notices on and after July 1, 2020. The state will inform affected individuals in writing that the bans were rescinded and that they may continue to enter and use the Iowa Capitol Complex on the same basis and under the same terms as any other law abiding member of the public.

The state will pay each plaintiff $5,000 and $45,000 to Des Moines attorney Nate Mundy, who along with the ACLU of Iowa represented the protesters. The Iowa State Patrol also agreed to continue First Amendment training for officers assigned to the capitol complex.

Attorneys for the state and ACLU agreed in June on terms to settle the lawsuit. The three-member State Appeal Board unanimously approved the settlement agreement earlier this month, and the federal courts action finalized the resolution.

Judge Goodgame Ebinger had ruled last December that the bans likely burden more speech than is necessary to achieve the significant state interests of preventing violence and ensuring public safety, since there was no way for protesters to petition to exercise their First Amendment rights at the Capitol or on the Capitol Complex grounds.

The ACLU of Iowas legal director Rita Bettis Austen said in a written statement on August 17,

The Capitol Complex is approximately 24 city blocks and includes many traditional public forumsplaces where Iowans often go to express their rights of free speech like the West Capitol Terrace, outdoor green spaces, sidewalks, streets, paths, and areas around public monuments. There is perhaps no more important traditional public forum in Iowa than the State Capitol.

The area is intentionally designed for Iowans to gather and speak to an audience of leaders from all three branches of state government. Before we obtained a preliminary injunction in this case, the ban meant that the protestors were unable to participate in demonstrations organized by BLM or other groups on the grounds. The ban also would have prevented the banned protesters from communicating directly with legislators and the Governors office during the upcoming 2021 legislative session. This outcome was important to protect the First Amendment rights of our clients and all other Iowans to speak, assemble, and petition their government for redress of grievances.

Appendix: Full text of August 17 news release from the ACLU of Iowa:

Des Moines, Iowa Today the federal District Court for the Southern District of Iowaapproved and adopted a settlement in which the Iowa Department of Public Safety and Iowa State Patrol (ISP) agreed to withdraw bans that the ISP issued to 17 BLM protesters last summer, including five ACLU clients. The bans forbade the protesters from going to the Iowa Capitol Complex grounds for six months or a year.

Earlier this month, the Iowa State Appeals board voted to approve a recommendation by state lawyers to settle the lawsuit out of court. The settlement included the law enforcement agencies agreeing to not issue similar bans in the future, to continue to provide training on First Amendment rights to the Iowa State Patrol Post 16 (which is responsible for law enforcement on the Iowa Capitol Complex grounds), to pay a financial settlement to the ACLUs five clients, and attorney fees.

Rita Bettis Austen, ACLU of Iowa Legal Director, said, We are very pleased with this outcome. We are grateful to our clients for challenging the constitutionality of these bans. They are protecting their fellow protesters and everyone else who wasnt a plaintiff in this case by getting the bans of all protesters withdrawn. Thestate also agreed to not to issue the same type of ban in the future.

We also appreciate the state for working to come to an agreement with us in this case, both to resolve this dispute and to protect the First Amendment rights of Iowans at the Capitol moving forward. Thats the optimal outcome, Bettis Austen said.

The bans were issued to protesters who were arrested while protesting in July 2020, even though most of the charges against the ACLUs clients were dropped.

In October 2020, the ACLU filed the lawsuit on behalf of five of the 17 Des Moines BLM protesters who the ISP banned verbally and in writing from the State Capitol. The ISP informed the protestors that if they entered the Capitol Complex grounds in the next six months or a year (depending on the protester), they would be arrested.

However, the law that the ISP cited to issue those bans (Iowa Code section 716.8(1)) does not actually authorize any such bans.

In December 2020, a federal court issued a preliminary injunction, saying the ban indeed was likely violating the protestors First Amendment rights. In June 2021, the parties reached an agreement that required approval by the State Appeal Board and the district court to take effect. On August 2, the Appeal Board approved the settlement. Today, the court dismissed the case and approval of the settlement, making the agreement becomes fully effective, resolving the dispute, and ending the case.

Bettis Austen said the activists were banned from a key area for public free speech. The Capitol Complex is approximately 24 city blocks and includes many traditional public forumsplaces where Iowans often go to express their rights of free speech like the West Capitol Terrace, outdoor green spaces, sidewalks, streets, paths, and areas around public monuments. There is perhaps no more important traditional public forum in Iowa than the State Capitol.

The area is intentionally designed for Iowans to gather and speak to an audience of leaders from all three branches of state government. Before we obtained a preliminary injunction in this case, the ban meant that the protestors were unable to participate in demonstrations organized by BLM or other groups on the grounds. The ban also would have prevented the banned protesters from communicating directly with legislators and the Governors office during the upcoming 2021 legislative session. This outcome was important to protect the First Amendment rights of our clients and all other Iowans to speak, assemble, and petition their government for redress of grievances, Bettis Austen said.

Jalesha Johnson, an employee of a Des Moines Public Schools creative arts program, said the win was important not just for her, but for the larger community of protestors.

The most important work we did happened on the Capitol grounds. I feel hopeful and inspired that well be able to frequent the Capitol again. When the ban was in place, it meant I was at risk of arrest by police for nothing more than protesting lawfully at the Capitol. I am relieved that I dont have to feel that way anymore, Johnson said.

Louise Bequeaith, a college student and Des Moines native, said the win was bittersweet. Its hard because this shouldnt have happened in the first place. The Capitol and government are meant to be there for us and to listen. People being punished for protecting our communities and wanting our voices to be heard felt ridiculous. But this is the result that feels like the most justice in this moment.

Haley Jo Dikkers, an educational assistant to elementary school children, said, I think protesting is still an important and vital way to interact with our government, especially if they dont give us other outlets to do so. Im excited to get back to the streets. When youre up against the police that have all this qualified immunity and societal power, I feel like they can get away with pretty much anything. So its really great that now they wont be able to ban people from the Capitol, and I hope they wont try to ban people from protesting in public spaces in the future.

Brad Penna, who owns a coffee shop in Des Moines, said the win is a huge step towards making the most political space in the city and even the whole state accessible to people. They cant ban people following protests now and they know its part of a larger movement.

Before the temporary injunction allowed us back into the area, as a business owner, I would have liked to go to the Capitol when policies about COVID-19 were being discussed. I felt like I didnt have a voice during that time. Now I feel encouraged to once again advocate for our community, Penna said.

Brandi Ramus, who owns a Des Moines vegan bakery, said, I feel like that was a really unreasonable thing that happened to me and the rest of us. Im glad that theyre saying that they were wrong, even though it just seemed like common sense to me. People should be able to protest in public spaces.

I think theres still a lot of work to do here in Iowa as far as protestors and how our state continues to treat us. This is making an example, showing that overreach of law enforcement to silence protestors is wrong. Thats not their place. The police claim they protect and serve the community, but what they are actually doing is battling against it, Ramus said.

The ACLU of Iowa legal team was joined by cooperating Des Moines civil rights attorneys Nathan A. Mundy of Mundy Law Office, P.C., and Glen Downey of The Law Offices of Glen S. Downey, LLC, who also worked tirelessly to represent the five clients in successfully defending against separate criminal charges brought against them after they were arrested while protesting.

Top photos all obtained from the ACLU of Iowa. Top row, from left: Jalesha Johnson, Louise Bequeaith. Bottom row, from left: Brad Penna, Brandi Ramus, and Haley Jo Dikkers.

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Bleeding Heartland - bleedingheartland.com

Legal battles over masks in schools are being fought across the country, including in Arkansas, California, Florida, Kentucky, Michigan, Oklahoma, Nevada and Texas.

Rather than clarifying policy, these legal challenges have led to more confusion.

As a new school year begins and COVID-19 hospitalizations rise across the country, the Centers for Disease Control and Prevention and the American Academy of Pediatrics recommend that students wear masks in school to help slow the spread of the coronavirus.

This guidance, and schools responses to it, has resulted in an intense debate. Some parents argue that they should be able to decide when and where their children wear masks, whereas others argue collective health and safety concerns take priority over individual choices. These arguments fall sharply along partisan lines, with 88% of Democrats supporting mask mandates and 69% of Republicans against the requirements.

State rules reflect this division. In eight states, as of Aug. 16, 2021, laws were enacted or governors issued orders banning public schools from requiring students to wear masks. On the opposite side of the debate, 12 states and the District of Columbia are requiring students to wear masks indoors.

Further complicating matters, some school districts have acted in outright defiance of their states regulations. These conflicts pose one key question: Who has the power to control the health and safety measures schools take state leaders or local officials?

Texas provides a good example of this conflict. Even after Texas Gov. Greg Abbott issued an executive order banning school mask mandates, local officials in several school districts adopted policies that required students to wear masks.

Simultaneous legal battles across multiple state court districts ensued and resulted in inconsistent rulings on whether banning masks in schools is constitutional.

On Aug. 15, the Texas Supreme Court weighed in, siding with the governor and saying that schools cannot require masks. Yet some schools still do, defying both the governor and the states highest court.

With all of the partisan rhetoric, lawsuits and conflict, many parents are left bewildered about how to proceed with the school year.

This is not the first time legal battles have erupted in the wake of a public health emergency. During the influenza pandemic of 1918, state and local governments enacted a variety of restrictions to combat the spread of the virus. As they must now, officials had to make hard decisions about whether to close schools or prevent public gatherings. Mask mandates even existed in some areas. State and local judges routinely upheld these measures.

Many of the same constitutional questions debated over 100 years ago arise today about mask mandates and other pandemic-related regulations.

Long-standing U.S. Supreme Court precedent recognizes that states have broad powers to regulate the health and safety of their citizens during a public health crisis.

But no right is absolute. When evaluating a states actions in a pandemic, courts weigh the governments interest in protecting the health and safety of its citizens against an individuals civil liberties.

Common challenges against COVID-19-related regulations argue that some requirements violate the First Amendment or an individuals right to liberty, including the right to make choices about ones own health.

Over the past year, the challenges that have been most successful in the courts argued that certain COVID-19 rules violated the First Amendment right to freely exercise ones religion.

For example, the U.S. Supreme Court recently blocked the state of California from enforcing COVID-19 restrictions on an at-home Bible study group and prevented New York state from enforcing occupancy limits on religious services.

But with respect to mask mandates, legal precedent supporting similar challenges is not as strong.

For example, in Maryland, a federal district court recently suggested in a decision that litigants were unlikely to succeed with claims that challenged mask mandates as unconstitutional violations of the First Amendment.

Arguments that mask mandates violate an individuals constitutional right to liberty defined by a leading legal resource as freedom from arbitrary and unreasonable restraint upon an individual face an even greater uphill battle. Courts have interpreted the Constitution as giving elected officials leeway when it comes to social policy, particularly in areas fraught with medical and scientific uncertainties.

This does not bode well for challenges like one recently filed in Nevada, which claims mask mandates infringe upon the fundamental right of parents to make child-rearing decisions.

On the other side of the debate, in some states litigants have gone to court to advocate for more stringent COVID-19 regulations.

In Florida, two different lawsuits seek to overturn the governors ban on school mask requirements. They claim that the Florida Constitution guarantees a safe school environment and grants local governments the authority to govern schools.

Some of the more successful lawsuits have focused on the fact that, by law, most states can regulate mask wearing in only public schools. This means that state laws and orders that ban mask requirements do not extend to private schools. In Arizona, Arkansas and Oklahoma, lawsuits claim that this creates unconstitutional distinctions between public and private students rights to a safe educational environment and therefore, they say, the state cannot ban mask mandates in schools at all.

All of this fighting within and among the states led the Biden administration to step into the fray. While the federal government cannot constitutionally command the states to do something, it can create incentives for them with money.

In response to the governors orders in Florida and Texas that prohibit mask mandates in schools, U.S. Secretary of Education Miguel Cardona reminded both states governors that federal CDC guidance recommends students wear masks. Cardona also suggested that the Biden administration would closely monitor whether the states were meeting requirements for federal relief funding under the American Rescue Plan Act of 2021. That law requires states to adhere to CDC guidance, including implementing mitigation strategies such as contact tracing or mask requirements, in order to receive the federal money the act provides.

President Joe Biden followed up Cardonas letters to the governors with a phone call of support to one of the superintendents who adopted mask mandates in violation of his governors executive order.

If it all sounds confusing and as if the law is all over the place regarding school mask mandates, thats because it is. The nations schools are subject to a complex web of local, state and federal laws that make it difficult to impose uniform standards.

Add in an intense political battle over the appropriate policies to adopt in the wake of the delta variant and you have precisely the kind of situation that may well end up at the U.S. Supreme Court.

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Who has the power to say kids do or don't have to wear masks in school the governor or the school district? It's not clear - The Conversation US