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The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rightsa written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton, gathered in Philadelphia to draft a new U.S. Constitution.

Antifederalists, led by the first governor of Virginia, Patrick Henry, opposed the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for peoples individual rights.

The debate over whether to ratify the Constitution in several states hinged on the adoption of a Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists, promised a concession to the antifederalistsa Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 the first two years that President George Washington was in office.

The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.

The First Amendment text reads:

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.

While the First Amendment protected freedoms of speech, religion, press, assembly and petition, subsequent amendments under the Bill of Rights dealt with the protection of other American values including the Second Amendment right to bear arms and the Sixth Amendment right to a trial by jury.

The First Amendment guarantees freedom of speech. Freedom of speech gives Americans the right to express themselves without having to worry about government interference. Its the most basic component of freedom of expression.

The U.S. Supreme Court often has struggled to determine what types of speech is protected. Legally, material labeled as obscene has historically been excluded from First Amendment protection, for example, but deciding what qualifies as obscene has been problematic. Speech provoking actions that would harm otherstrue incitement and/or threatsis also not protected, but again determining what words have qualified as true incitement has been decided on a case-by-case basis.

This freedom is similar to freedom of speech, in that it allows people to express themselves through publication.

There are certain limits to freedom of the press. False or defamatory statementscalled libelarent protected under the First Amendment.

The First Amendment, in guaranteeing freedom of religion, prohibits the government from establishing a state religion and from favoring one religion over any other.

While not explicitly stated, this amendment establishes the long-established separation of church and state.

The First Amendment protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes. It also protects the right to protest the government.

The right to petition can mean signing a petition or even filing a lawsuit against the government.

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Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech &Freedom of the Press:

Schenck v. United States, 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I.

The Schenck decision helped define limits of freedom of speech, creating the clear and present danger standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistance as dangerous to national security.

New York Times Co. v. United States, 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman, Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson, 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the administration of President Ronald Reagan.

The Supreme Court reversed a Texas courts decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the Lemon Test for determining when a state or federal law violates the Establishment Clausethats the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry, the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU, the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the state and subpoenaed the NAACP for records including their membership list, the NAACP brought the matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II writing: This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.

Edwards v. South Carolina (1962): On March 2, 1961, 187 Black students marched from Zion Baptist Church to the South Carolina State House, where they were arrested and convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on the free speech, free assembly and freedom to petition of the students.

The Bill of Rights; White House.History of the First Amendment; The University of Tennessee, Knoxville.Schenck v. United States; C-Span.

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First Amendment - Rights, U.S. Constitution & Freedoms - HISTORY

First Amendment, amendment (1791) to the Constitution of the United States that is part of the Bill of Rights and reads,

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.

The clauses of the amendment are often called the establishment clause, the free exercise clause, the free speech clause, the free press clause, the assembly clause, and the petition clause.

The First Amendment, like the rest of the Bill of Rights, originally restricted only what the federal government may do and did not bind the states. Most state constitutions had their own bills of rights, and those generally included provisions similar to those found in the First Amendment. But the state provisions could be enforced only by state courts.

In 1868, however, the Fourteenth Amendment was added to the U.S. Constitution, and it prohibited states from denying people liberty without due process. Since then the U.S. Supreme Court has gradually used the due process clause to apply most of the Bill of Rights to state governments. In particular, from the 1920s to the 40s the Supreme Court applied all the clauses of the First Amendment to the states. Thus, the First Amendment now covers actions by federal, state, and local governments. The First Amendment also applies to all branches of government, including legislatures, courts, juries, and executive officials and agencies. This includes public employers, public university systems, and public school systems.

The First Amendment, however, applies only to restrictions imposed by the government, since the First and Fourteenth amendments refer only to government action. As a result, if a private employer fires an employee because of the employees speech, there is no First Amendment violation. There is likewise no violation if a private university expels a student for what the student said, if a commercial landlord restricts what bumper stickers are sold on the property it owns, or if an Internet service provider refuses to host certain Web sites.

Legislatures sometimes enact laws that protect speakers or religious observers from retaliation by private organizations. For example, Title VII of the federal Civil Rights Act of 1964 bans religious discrimination even by private employers. Similarly, laws in some states prohibit employers from firing employees for off-duty political activity. But such prohibitions are imposed by legislative choice rather than by the First Amendment.

The freedoms of speech, of the press, of assembly, and to petitiondiscussed here together as freedom of expressionbroadly protect expression from governmental restrictions. Thus, for instance, the government may not outlaw antiwar speech, speech praising violence, racist speech, pro-communist speech, and the like. Nor may the government impose special taxes on speech on certain topics or limit demonstrations that express certain views. The government also may not authorize civil lawsuits based on peoples speech, unless the speech falls within a traditionally recognized First Amendment exception. This is why, for example, people may not sue for emotional distress inflicted by offensive magazine articles about them, unless the articles are not just offensive but include false statements that fall within the defamation exception (see below Permissible restrictions on expression).

The free expression guarantees are not limited to political speech. They also cover speech about science, religion, morality, and social issues as well as art and even personal gossip.

Freedom of the press confirms that the government may not restrict mass communication. It does not, however, give media businesses any additional constitutional rights beyond what nonprofessional speakers have.

Freedom of petition protects the right to communicate with government officials. This includes lobbying government officials and petitioning the courts by filing lawsuits, unless the court concludes that the lawsuit clearly lacks any legal basis.

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First Amendment | Contents, Freedoms, Rights, & Facts

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The need for the Constitution grew out of problems with the Articles of Confederation, which established a firm league of friendship between the States, and vested most power in a Congress of the Confederation. This power was, however, extremely limitedthe central government conducted diplomacy and made war, set weights and measures, and was the final arbiter of disputes between the States. Crucially, it could not raise any funds itself, and was entirely dependent on the States themselves for the money necessary to operate. Each State sent a delegation of between two and seven members to the Congress, and they voted as a bloc with each State getting one vote. But any decision of consequence required a unanimous vote, which led to a government that was paralyzed and ineffectual.

A movement to reform the Articles began, and invitations to attend a convention in Philadelphia to discuss changes to the Articles were sent to the State legislatures in 1787. In May of that year, delegates from 12 of the 13 States (Rhode Island sent no representatives) convened in Philadelphia to begin the work of redesigning government. The delegates to the Constitutional Convention quickly began work on drafting a new Constitution for the United States.

A chief aim of the Constitution as drafted by the Convention was to create a government with enough power to act on a national level, but without so much power that fundamental rights would be at risk. One way that this was accomplished was to separate the power of government into three branches, and then to include checks and balances on those powers to assure that no one branch of government gained supremacy. This concern arose largely out of the experience that the delegates had with the King of England and his powerful Parliament. The powers of each branch are enumerated in the Constitution, with powers not assigned to them reserved to the States.

Much of the debate, which was conducted in secret to ensure that delegates spoke their minds, focused on the form that the new legislature would take. Two plans competed to become the new government: the Virginia Plan, which apportioned representation based on the population of each State, and the New Jersey plan, which gave each State an equal vote in Congress. The Virginia Plan was supported by the larger States, and the New Jersey plan preferred by the smaller. In the end, they settled on the Great Compromise (sometimes called the Connecticut Compromise), in which the House of Representatives would represent the people as apportioned by population; the Senate would represent the States apportioned equally; and the President would be elected by the Electoral College. The plan also called for an independent judiciary.

The founders also took pains to establish the relationship between the States. States are required to give full faith and credit to the laws, records, contracts, and judicial proceedings of the other States, although Congress may regulate the manner in which the States share records, and define the scope of this clause. States are barred from discriminating against citizens of other States in any way, and cannot enact tariffs against one another. States must also extradite those accused of crimes to other States for trial.

The founders also specified a process by which the Constitution may be amended, and since its ratification, the Constitution has been amended 27 times. In order to prevent arbitrary changes, the process for making amendments is quite onerous. An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification. In modern times, amendments have traditionally specified a time frame in which this must be accomplished, usually a period of several years. Additionally, the Constitution specifies that no amendment can deny a State equal representation in the Senate without that States consent.

With the details and language of the Constitution decided, the Convention got down to the work of actually setting the Constitution to paper. It is written in the hand of a delegate from Pennsylvania, Gouverneur Morris, whose job allowed him some reign over the actual punctuation of a few clauses in the Constitution. He is also credited with the famous preamble, quoted at the top of this page. On September 17, 1787, 39 of the 55 delegates signed the new document, with many of those who refused to sign objecting to the lack of a bill of rights. At least one delegate refused to sign because the Constitution codified and protected slavery and the slave trade.

The process set out in the Constitution for its ratification provided for much popular debate in the States. The Constitution would take effect once it had been ratified by nine of the thirteen State legislatures; unanimity was not required. During the debate over the Constitution, two factions emerged: the Federalists, who supported adoption, and the Anti-Federalists, who opposed it.

James Madison, Alexander Hamilton, and John Jay set out an eloquent defense of the new Constitution in what came to be called the Federalist Papers. Published anonymously in the newspapers The Independent Journal and The New York Packet under the name Publius between October 1787 and August 1788, the 85 articles that comprise the Federalist Papers remain to this day an invaluable resource for understanding some of the framers intentions for the Constitution. The most famous of the articles are No. 10, which warns of the dangers of factions and advocates a large republic, and No. 51, which explains the structure of the Constitution, its checks and balances, and how it protects the rights of the people.

The States proceeded to begin ratification, with some debating more intensely than others. Delaware was the first State to ratify, on December 7, 1787. After New Hampshire became the ninth State to ratify, on June 22, 1788, the Confederation Congress established March 9, 1789 as the date to begin operating under the Constitution. By this time, all the States except North Carolina and Rhode Island had ratifiedthe Ocean State was the last to ratify on May 29, 1790.

One of the principal points of contention between the Federalists and Anti-Federalists was the lack of an enumeration of basic civil rights in the Constitution. Many Federalists argued, as in Federalist No. 84, that the people surrendered no rights in adopting the Constitution. In several States, however, the ratification debate in some States hinged on the adoption of a bill of rights. The solution was known as the Massachusetts Compromise, in which four States ratified the Constitution but at the same time sent recommendations for amendments to the Congress.

James Madison introduced 12 amendments to the First Congress in 1789. Ten of these would go on to become what we now consider to be the Bill of Rights. One was never passed, while another dealing with Congressional salaries was not ratified until 1992, when it became the 27th Amendment. Based on the Virginia Declaration of Rights, the English Bill of Rights, the writings of the Enlightenment, and the rights defined in the Magna Carta, the Bill of Rights contains rights that many today consider to be fundamental to America.

The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.

The Second Amendment gives citizens the right to bear arms.

The Third Amendment prohibits the government from quartering troops in private homes, a major grievance during the American Revolution.

The Fourth Amendment protects citizens from unreasonable search and seizure. The government may not conduct any searches without a warrant, and such warrants must be issued by a judge and based on probable cause.

The Fifth Amendment provides that citizens not be subject to criminal prosecution and punishment without due process. Citizens may not be tried on the same set of facts twice and are protected from self-incrimination (the right to remain silent). The amendment also establishes the power of eminent domain, ensuring that private property is not seized for public use without just compensation.

The Sixth Amendment assures the right to a speedy trial by a jury of ones peers, to be informed of the crimes with which one is charged, and to confront the witnesses brought forward by the government. The amendment also provides the accused the right to compel testimony from witnesses, as well as the right to legal representation.

The Seventh Amendment provides that civil cases preserve the right to trial by jury.

The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments.

The Ninth Amendment states that the list of rights enumerated in the Constitution is not exhaustive, and that the people retain all rights not enumerated.

The Tenth Amendment assigns all powers not delegated to the United States, or prohibited to the States, to either the States or to the people.

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Auditors vow to descend on CT if law passed putting rules on First Amendment  FOX61 Hartford

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Auditors vow to descend on CT if law passed putting rules on First Amendment - FOX61 Hartford

There is no horseshoes and hand grenades exception in the First Amendment and latest SCOTUS case proves it  Fox News

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There is no horseshoes and hand grenades exception in the First Amendment and latest SCOTUS case proves it - Fox News

Ex-College Soccer Player Scores Win in First Amendment Suit Against Coach Who Benched Her After She Refused to Take a Knee  Law & Crime

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Ex-College Soccer Player Scores Win in First Amendment Suit Against Coach Who Benched Her After She Refused to Take a Knee - Law & Crime

Duke attorney discusses Elon Musk, Twitter and what the First Amendment really controls  CBS17.com

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Duke attorney discusses Elon Musk, Twitter and what the First Amendment really controls - CBS17.com

Law students settle First Amendment suit with University of Idaho  Idaho Press

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Law students settle First Amendment suit with University of Idaho - Idaho Press

1. It's Time to Reaffirm Our First Amendment Right to Boycott | News & Commentary | American Civil Liberties Union  ACLU
2. ACLU of Arkansas urging Supreme Court to hear case on First Amendment right to boycott  KATV
3. ACLU asks supreme court to overturn Arkansas anti-boycott law against Israel  The Guardian US
4. U.S. Court of Appeals Gets Case Involving Legality of Israel Boycotts  The Peoples Vanguard of Davis
5. ACLU Urges SCOTUS To Affirm First Amendment Right To Boycott  Black Star News
6. View Full Coverage on Google News

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It's Time to Reaffirm Our First Amendment Right to Boycott | News & Commentary | American Civil Liberties Union - ACLU

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First Amendment to the Constitution | Community | hometownsource.com - ECM Publishers

Several Texas abortion funds which are charities that help people who cant afford to get an abortion pay for their travel, lodging and medical bills paused disbursements on June 24, 2022, after the Supreme Court ruled that Americans have no constitutional right to the procedure.

The Lilith, Equal Access, Frontera and other funds said they were taking this step to assess the legal consequences of the courts ruling in Texas, which already had some of the nations strictest abortion laws. Abortion funds in some other states, including Oklahoma, were also reportedly halting their work.

Some funds active in Texas made this decision based on concerns that their financial assistance to women seeking abortions may now be illegal in that state, as well as fears that their donors could also be sued for violating Texas law.

But as an expert on reproductive rights and First Amendment law who has argued before the Supreme Court, I believe that donating to abortion funds even in places where helping people get abortions is illegal is protected by the U.S. Constitution.

The Supreme Court has ruled on several occasions that fundraising, whether its by charitable organizations or political candidates, is a form of speech protected by the First Amendment.

The court handed down the first relevant ruling in 1980, with its Schaumburg v. Citizens for a Better Environment decision. The court struck down an Illinois city ordinance that had prohibited charitable organizations from soliciting contributions unless 75% or more of their revenue was used directly for charitable purposes, rather than for salaries, administration and overhead costs.

The city of Schaumburg had defended that ordinance by contending it regulated conduct involving commercial transactions and was necessary to prevent fundraising for fraudulent causes. The Supreme Court rejected this characterization, asserting that fundraising is a form of protected speech because it is intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues.

The court further noted that without the right to seek and receive donations, the flow of information and advocacy would likely cease.

Several campaign finance rulings have reinforced the Schaumberg ruling.

The best-known among them is Citizens United v. Federal Election Commission. Two other key rulings are Buckley v. Valeo, which preceded the Schaumberg case, and McCutcheon v. Federal Election Commission. All three established that contributions to political candidates, and spending by those candidates, is a form of speech protected by the First Amendment.

In the eyes of the law, seeking donations and making contributions are two sides of the same coin. The Supreme Court has said that both are important ways to show support for political preferences, advance ideas and advocate for policy changes.

The First Amendment right to solicit or give funds is not limited to charitable organizations or candidates. Simply panhandling on the street, the most basic form of soliciting funds, is entitled to First Amendment protection, according to several lower federal courts.

The Supreme Court has also held that the freedom of association principle embodied in the First Amendment protects the right to support a cause by making donations or paying dues.

Based on the freedom of association, which includes the right to join together with others for social or political purposes, the court has been very protective of the right of donors to remain anonymous. That has especially been the case for donors who support controversial causes and when revealing their identity might subject them to harassment, threats, public hostility or other forms of reprisal.

In 1958, the Supreme Court ruled in NAACP v. Alabama that the First Amendment barred Alabama from forcing the NAACP to disclose the names of its members or donors who resided in the state. The court pragmatically recognized that compelling disclosure of supporters of a civil rights group in Alabama in the 1950s could endanger the donors.

This First Amendment principle of protecting the speech and the rights of donors to fund charitable causes guards both sides of the political spectrum.

In July 2021, for example, the Supreme Court decided a case brought by two organizations considered to be conservative: the Americans for Prosperity Foundation and the Thomas More Law Center. The two organizations challenged a California law that required them to disclose the names of their donors who gave more than $5,000.

California tried to justify this law as necessary to prevent fraud by registered charities the same preventing fraud rationale that Schaumburg had unsuccessfully asserted as the reason it needed to restrict charitable solicitation.

Relying on the NAACP case among others, the Court held in Americans for Prosperity Foundation v. Bonta that the compelled disclosure requirement violated the donors right to freedom of association.

Based on this body of law, the First Amendment protects the right of abortion funds to seek contributions and to make contributions to individuals in Texas and other states where abortion is illegal to support their activities. The First Amendment also protects the right of people to make donations to abortion funds.

A 2021 Texas law known as Senate Bill 8 prohibits aiding and abetting an abortion after six weeks into pregnancy. The measure specifically mentions providing financial assistance as a form of aiding and abetting.

The law authorizes any person in the world to bring a civil damages lawsuit against anyone who aids and abets an abortion, and to recover attorneys fees in addition to at least $10,000.

One reason why abortion funds might be leery right now is that Texas law permits someone to seek a court order to force others to hand over information that might provide a basis for suing them.

Two individuals have already sought such an order to require the Lilith Fund to disclose information about its funding and donors in order to determine if they violated the 2021 restriction on aiding and abetting an abortion by giving money.

The Thomas More Law Society the same organization that successfully asked the Supreme Court to protect it from having to disclose its donors is representing the people seeking donor information from the Lilith Fund, and tweeted that Lilith Fund donors could face legal action for violating the Texas abortion laws aiding and abetting prohibition.

A Texas trial court judge has found that the provisions authorizing anyone to sue someone who provides or aids and abets an abortion likely violate the Texas Constitution, and has temporarily enjoined the law, meaning that it is on hold pending appeal.

The case is likely to go to the Texas Supreme Court. How that court rules will have a great impact on the liability risk faced by the Lilith Fund for providing financial assistance to women to help them get an abortion. While the legal process is playing out, the Lilith Fund is trying to minimize its legal risk by suspending the distribution of money to women.

If the Texas appellate courts eventually uphold S.B.8, the ban on providing financial assistance to Texas women could be enforced. In that event, the Lilith Fund would be able to make a strong case that they dont need to reveal any information because of First Amendment protections.

If states try to punish abortion funds or individuals for providing a woman with financial assistance to get an abortion in another state where it remains legal, including the money required to travel there, that would likely violate the Constitution.

Giving money to people who want to obtain a legal abortion would not be aiding and abetting a crime. Moreover, the Constitution protects the right to interstate travel. The freedom to cross state lines is a right deeply embedded in U.S. history dating to the Articles of Confederation, prior to the Bill of Rights.

Assisting someone with obtaining a legal abortion by giving them money also could be protected as a form of free speech because it can be one aspect of advocating for and supporting the right to legal abortion. Disbursing these funds could also be protected under the Constitution as an aspect of the freedom to associate with women who seek legal abortions by giving them financial support.

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Donating to help women get abortions is a First Amendment right protected by Supreme Court precedents - The Conversation

Did George Washington in his first act as president violate the first principle soon to be enshrined in the First Amendment?

Did the Congress that approved the First Amendment compel him to do so?

On April 7, 1789, three weeks before Washington was inaugurated, the Journal of the Senate reported that the Senate had ordered "a committee ... to take under consideration the manner of electing Chaplains, and to confer thereupon with a committee of the House of Representatives."

On April 15, 1789, the committee reported back: "That two Chaplains, of different denominations, be appointed to Congress, for the present session, the Senate to appoint one, and give notice thereof to the House of Representatives, who shall, thereupon, appoint the other; which Chaplains shall commence their services in the Houses that appoint them, but shall interchange weekly."

Two days later, the House concurred.

Then, on April 25, 1789, the Journal of the Senate reported: "The Senate proceeded to the appointment of a Chaplain, in the manner agreed upon the 15th of April; and (t)he right reverend Samuel Provoost was elected."

Two days after that, the House resolved: "That this House will, on Friday next, proceed by ballot to the appointment of a Chaplain to Congress on the part of this House."

Two days after that, the House agreed to a resolution, already adopted by the Senate, that said: "That after the oath shall have been administered to the President, the Vice-President and members of the Senate, the Speaker and members of the House of Representatives, will accompany him to St. Paul's Chapel to hear divine service performed by the Chaplains of Congress."

The Congress was then meeting at Federal Hall in New York City.

On April 30, 1789, Washington stood on the balcony of that hall and was sworn in as this nation's first president.

"Washington took the oath with his hand on the Bible, and kissed the Bible after taking the oath," says the Mount Vernon website.

The Journal of the Senate includes the text of his inaugural address.

"(I)t would be peculiarly improper to omit, in this first official act," said Washington, "my fervent supplications to that Almighty Being who rules over the universe who presides in the councils of nations and whose providential aids can supply every human defect, that his benediction may consecrate to the liberties and happiness of the people of the United States, a government instituted by themselves for these essential purposes: and may enable every instrument employed in its administration to execute with success, the functions allotted to his charge.

"In tendering this homage to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own; nor those of my fellow citizens at large, less than either," Washington continued.

"No people can be bound to acknowledge and adore the invisible hand, which conducts the affairs of men, more than the people of the United States," he said.

Washington then followed through on the resolution Congress had passed earlier that week.

"The President, the Vice President, the Senate, and House of Representatives," reports the Journal of the Senate, "then proceeded to St. Paul's Chapel, where divine service was performed by the Chaplain of Congress, after which the President was reconducted to his house by the committee appointed for that purpose."

In 1983, the Supreme Court heard the case of Marsh v. Chambers. The issue then was whether the Nebraska state legislature had violated the First Amendment and established a religion by having a chaplain begin its sessions with a prayer.

The court voted 6-3 that it had not. Chief Justice Warren Burger wrote the opinion for the majority. In this opinion, Burger pointed to the historical fact that the House and Senate first elected their chaplains in April 1789 and voted later that same year to pay them a salary.

"A statute providing for the payment of these chaplains was enacted into law on September 22, 1789," he noted.

"On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights," said Burger. "Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress."

Burger noted that James Madison personally supported the payment of congressional chaplains.

"It bears note," said Burger, "that James Madison, one of the principal advocates of religious freedom in the Colonies and a drafter of the Establishment Clause ... voted for the bill authorizing payment of the chaplains."

The Establishment Clause says: "Congress shall make no law respecting an establishment of religion."

If the men who wrote the Establishment Clause also voted to pay for a chaplain to work for the very Congress in which they served, how can an assistant football coach at a public school violate the Establishment Clause by personally saying a prayer after a game?

He cannot.

The Supreme Court this week decided this question correctly. But three justices Sonia Sotomayor, Elena Kagan and the retiring Stephen Breyer voted the wrong way.

Which side would incoming Justice Ketanji Brown Jackson have taken?

We now live in a nation where fundamental rights remain just two or three votes shy of cancellation.

Terence P. Jeffrey is the editor-in-chief of CNSnews.com. To find out more about him, visit the Creators Syndicate webpage at http://www.creators.com.

Photo credit: MikeGoad at Pixabay

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Did George Washington Violate the First Amendment?, by Terence P. Jeffrey - Creators Syndicate

America First Legal (AFL), a right-wing group whose team includes several former Trump administration officials, is urging the Supreme Court to do even more to shatter whats left of the wall between church and state.

On Tuesday, June 28, the group issued a statement essentially calling for a total overhaul of the First Amendments establishment clause, a key provision separating church and state. The statement arrived one day after the Supreme Court cracked part of the clauses foundation with its ruling in Kennedy v. Bremerton. In that case, the courts far-right majority ruled that public school officials in Bremerton, Washington, violated the First Amendment rights of high school football coach Joseph Kennedy when they fired him following a controversy stemming from his ritual of praying at the 50-yard line during football games. The 6-3 decision effectively overruled a 1971 precedent for interpreting the First Amendments establishment clause.

While the establishment clause exists to keep the government from establishing an official religion in the United States, or doing anything that might favor one religion over another, the AFL is now hopeful that the Supreme Court will eventually disincorporate the establishment clause in a future case. Doing so, the AFL suggests, would allow states to decide whether and to what extent they will establish religion within their borders.

The AFLs vice president and general counsel Gene Hamilton a former Trump official in the Departments of Justice and Homeland Security, whose hits include axing DACA and helping create the infamous family separation policy argued in a statement that the original intent of the establishment clause was to let the states decide just how much they want to separate church and state.

We are pleased that the Supreme Court decided in Coach Kennedys favor, Hamilton said. Perhaps the Court will, in a future case, finally restore the original meaning of the Establishment Clause and disincorporate it as to the states. But for today, we celebrate with Coach Kennedy and all Americans who value religious freedom.

Allowing individual states to establish their own official religions is just one possible tidal wave-sized ripple that could follow Kennedy v. Bremerton. Considering the current Courts apparent disdain for established precedent, it could also pave the way for overturning the landmark 1962 case that ruled prayer in public schools was unconstitutional.

Kennedy v. Bremerton is also just one of two major SCOTUS rulings this term to take a crack at the long-established boundaries between church and state. Earlier in June, the right-wing majority ruled in Carson v. Makin that taxpayer money from a tuition assistance program in Maine could be used to send kids to private religious schools.

More:

Trumpists Call on Supreme Court to Let States Establish Religion Within Their Borders - Rolling Stone

from the fix-the-damn-bill dept

Over the last few weeks, weve written quite a bit about the American Innovation and Choice Online Act (AICOA), which has become the central push by a bunch of folks in Congress to create a special antitrust bill for big tech. There are some good ideas in the bill, but, as weve been highlighting, a major problem is that the language in the bill is such that it could be abused by politically motivated politicians and law enforcement to go after perfectly reasonable content moderation decisions.

Indeed, Republicans have made it clear that they very much believe this bill will enable them to go after tech companies over content moderation decisions they dislike. Most recently, theyve said that if the bill is clarified to say that it should not impact content moderation, that they will walk away from supporting the bill. That should, at the very least, give pause to everyone who keeps insisting that the bill cant be abused to go after content moderation decisions.

We recently wrote about four Senators, led by Brian Schatz (with Ron Wyden, Tammy Baldwin, and Ben Ray Lujan), suggesting a very, very slight amendment to the bill, which would just make it explicit that the law shouldnt be read to impact regular content moderation decisions.

In response to that Schatz letter, Rep. David Cicilline (who is spearheading the House version of the bill, while Senator Amy Klobuchar is handling the Senate side), sent back a letter insisting that Section 230 and the 1st Amendment already would prevent AICOA from being abused this way. Heres a snippet of his letter.

Moreover, even if a covered platforms discriminatory application of its terms of servicematerially harmed competition, the Act preserves platforms content-moderation-relateddefenses under current law. Section 5 of S. 2992 states expressly that [n]othing in this Act maybe construed to limit ... the application of any law.

One such law is Section 230(c) of the Communications Decency Act. Under thatprovision, social-media platforms may not be treated as the publisher or speaker of anyinformation provided by another information content provider. They also may not be heldcivilly liable on account of any action voluntarily taken in good faith to restrict access to oravailability of material that the provider or user considers to be obscene, lewd, lascivious, filthy,excessively violent, harassing, or otherwise objectionable, whether or not such material isconstitutionally protected. Accordingly, as with other liability statutes enacted since thepassage of Section 230, Section 230 provides an affirmative defense to liability under [the Act]for ... the narrow set of defendants and conduct to which Section 230 applies. Another stillapplicable law is the First Amendment to the U.S. Constitution, which the Act does notandindeed, cannotabrogate.

He then goes on in more detail as to why he believes the bill really cannot be abused. And while he does note that that he remains committed to doing what is necessary to strengthen and improve the bill and that he is happy to keep working with these Senators on it, the very clear message from his letter is that hes pretty sure the bill is just fine as is, and that Section 230 and the 1st Amendment already protect against abuse.

Finally, your proposed language for the Actalthough well intentionedis alreadyreflected in the base text of the bill. As detailed above, among other things, section 5 of S. 2992preserves the continued applicability of current laws, including 47 U.S.C. 230(c), that protectsocial-media platforms from liability for good-faith content moderation. Although I agree thatlegislation is necessary to address concerns with misinformation and content-moderationpractices by dominant social-media platforms, I have consistently said that this legislation is notthe avenue for doing so. As such, this legislation is narrowly tailored to address specificanticompetitive practices by dominant technology firms online. And as the Department of Justicehas noted, it is a complement to and clarification of the antitrust laws as they apply to digitalmarkets. As such, it does not supersede other laws.

Except Cicilline is wrong. Very wrong. We at the Copia Institute this week signed onto a letter from TechFreedom and Free Press (two organizations that rarely agree with each other on policy issues) along with some expert academics explaining why.

The letter explains why Cicillines faith in Section 230 and the 1st Amendment is misplaced. It walks through, step by step, ways in which motivated state AGs (or even the DOJ) might get around those concerns, by claiming that moderation decisions were not actually content-based decisions, but business conduct, focused on anti-competitive behavior.

We dont have to look far to see how that played out: the Malwarebytes case was an example of that in action. That was a case where a company was able to avoid Section 230 by claiming that a moderation decision (calling an app malware), was actually done for anti-competitive reasons. But with AICOA, we could get that on steroids. As the letter notes:

There is a substantial risk that courts will extend the Malwarebytes reasoning to exclude AICOA claims from Section 230 protectionincluding politically motivated claims aimed at content moderation. Specifically, courts may try to harmonize the two statutesi.e., strive to give effect to bothby accepting some showing of anticompetitive results as sufficient to circumvent Section 230(c)(2)(A) in non-discrimination claims.

Anticompetitive animus is not required by the plain text of AICOA 3(a)(3). Allowing only AICOA claims that allege (and, ultimately, prove) anticompetitive motivation to bypass Section 230s protection would infer an intent requirement where Congress chose not to include one. While courts do sometimes infer intent requirements, they may reasonably conclude that doing so here would effectively read Section 3(a)(3) out of the statute. How could a platform with no direct stake in the market where competitive harm is alleged ever have an anticompetitive intent? Thus, how could any plaintiff ever bring a Section 3(a)(3) claim regarding harm to competition between downstream business users that would survive Section 230(c)(2)(A)? For Rep. Cicillines presumptions about Section 230 to be correct, courts would have to effectively render Section 3(a)(3) a nullity by holding that only claims of self-preferencingbut not discrimination between other business usersare actionable. This is an implausible reading that clearly contradicts what the present draft of AICOA says.

The Malwarebytes court relied heavily on Section 230s history and purpose as evincing Congressional intent to protect competition. Here, there is explicit statutory language and legislative history from which a court could conclude that AICOAs purpose is to prohibit anticompetitive results, regardless of motiveand thus to carve those claims out from Section 230. This result would apparently be statutorily required if another bill co-sponsored by Sen. Klobuchar becomes law: The SAFE TECH Act (S. 299) would amend Section 230 to exempt any action brought under Federal or State antitrust law.

Theres a lot more in the letter, but the point is clear. The idea that 230 will magically stop the abuse of this bill seems contradicted by the way the law is currently drafted, and actual cases on the books.

Filed Under: 1st amendment, aicoa, amy klobuchar, ben ray lujan, brian schatz, content moderation, david cicilline, ron wyden, section 230, tammy baldwin

The rest is here:

Do Not Expect Section 230 And The 1st Amendment To Save Antitrust Bills From Abuse - Techdirt

A federal judge ruled today that four people at a George Floyd vigil on the Common on May 31, 2020 can try to convince a jury that Boston Police officers violated their First Amendment rights by attacking them with pepper spray, fists and a bicycle afterwards and that the city created a culture where such a thing could happen.

Among other reasons to seek dismissal, the cops alleged they did not violate the protesters' First Amendment rights because they did not know the four were on Tremont Street because of the Common protest and so did not know they had a First Amendment right to be there.

That assertion "strains credulity," US District Court Judge Alison Burroughs wrote in a decision today that rejected requests by the cops and the city to reject the First Amendment and civil-rights allegations by the four protesters for what happened after police broke up the vigil and ordered nearby T stops shut, on a night that ended with violence and looting across downtown, the Back Bay and the South End.

Here, the chronology of events, the location of each incident, and all other surrounding circumstances, plainly allow for a reasonable inference that each of the Officer Defendants would have known the Plaintiffs were protestors and that they used force against them for that reason. ... Nothing in the record thus far, which includes photos of the Plaintiffs with their arms up and backing away from officers, provides a plausible non-retaliatory motive for the Officer Defendants use of physical force against the Plaintiffs. Further, because the uses of force against Ackers, Hall, and Chambers-Maher occurred while the officers were being openly recorded, it would be reasonable to infer that the civilians filming of the officers formed an unlawful retaliatory motive for the use of force. ... Put simply, the Officer Defendants argument that they could not have known that the Plaintiffs participated in the protest is untenable. Based on the record currently before the Court, it is evident that each one of these incidents occurred while the BPD was seeking to disperse protesters.

Burroughs added, however, that the officers will be able to better rebut the allegation than they have to date during pre-trial discovery and then at trial;

The point of discovery and then trial will be to sort out whether these particular uses of force did or did not implicate the First Amendment.

But, she continued:

Courts around the country, flooded with First Amendments claims pleaded on similar facts following the May 2020 protests, have agreed that the use of force against non-violent protestors can support the inference that officers meant to intimidate protestors and deter antipolice messaging.

Burroughs also allowed the four to continue their lawsuit against the city itself for allegedly creating an atmosphere that allowed and even encouraged misbehavior by police, in large part by ignoring complaints against officers in the past, but also through "a custom of using excessive force." But as she did with the police on the First Amendment issue, she cautioned the four protesters haven't really made a good, detailed case of this to date - something they will have to do at trial to win against the city.

To be sure, Plaintiffs support for this claim is presently thin, particularly since Plaintiffs have done little to link their allegations together to present a systemic pattern of persistent failure to discipline or investigate, but more is not required at the pleading stage. Plaintiffs have specifically articulated that the City knew constitutional violations occurred and either chose not to investigate or otherwise delayed or discouraged investigation. Taking Plaintiffs factual allegations as true and viewing the Amended Complaint in the light most favorable to Plaintiffs, the allegations allow for a reasonable inference that the City has a custom of failing to discipline police misconduct.

Burroughs continued:

The Amended Complaint contains numerous allegations that officers used OC spray, batons, and other physical force against the four Plaintiffs during the May 31 protest. Plaintiffs sufficiently allege, though just barely, that similar constitutional violations occurred on May 29, giving decisionmakers sufficient notice that officers would continue to use unreasonable force against peaceful protestors in the demonstrations to come. The City's argument that the allegations are not enough to support a Monell claim because they rest only on "one night of civil unrest" is unavailing. In addition to the fact that Plaintiffs have suggested that similar conduct occurred during demonstrations on surrounding days, "egregious instances of misconduct" even when "relatively few in number but following a common design, may support an inference that the instances would not occur but for municipal tolerance of the practice in question." Foley v. City of Lowell, 948 F.2d 10, 14 (1st Cir. 1991). ... Here, Plaintiffs describe four similar incidents of excessive force used against peaceful protesters. Further, Plaintiffs may not know, or cannot know, without discovery the full extent of the unreasonable force used by the City against protesters during the May 2020 protests. This Court, in line with several other district courts presented with similar facts, finds that Plaintiffs have sufficiently pleaded that the City had notice of the unlawful use of force against protestors and was deliberately indifferent to those constitutional violations.

She also pointed to a decision by Police Commissioner William Gross to have riot batons distributed to officers beforehand and to have nearby T stations shut as the vigil was dispersed as legitimate acts for a jury to consider whether BPD had a policy that led to the incidents:

Because three of the four Plaintiffs injuries occurred while they were trying to leave the protest area and some of the alleged injuries were caused by blows from riot batons, it can be reasonably inferred that Commissioner Grosss policy decisions led to the constitutional deprivations. ...

Plaintiffs will have to overcome significant issues of proof if they are to prevail at trial. Nonetheless, the Court finds that, at this stage, Plaintiffs have adequately pleaded municipal liability based on the role that City customs and policies allegedly played in the constitutional violations.

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Judge rejects request by Boston cops to dismiss First Amendment action over the way they pepper sprayed and hit George Floyd protesters in 2020 -...

The U.S. Supreme Court threw womens rights under the bus yesterday and protests were instantaneous and large. See the Arkansas Capitol last night and you can also see a good crowd at Fayetteville in 40/29s tweet.

Thats good but only symbolic venting. Relief will be a long time coming, if ever.

Also concerning are other trappings of rule by minority that the Supreme Court reversal of Roe embodies along with the minority-favoring Electoral College, states rights only for gun laws with fascist approval, the end of voting rights, political gerrymandering and the end of government regulation (except for that of womens bodies).

Also: what about the First Amendment? There was violence last night. Against speech and assembly, theoretically protected by the First Amendment. Check out:

Arizona:

Or Los Angeles, where police declared an assembly unlawful and broke it up:

Or Cedar Rapids, where a truck drove into a crowd of demonstrators (the second truck-demonstrator collision in Iowa in a week):

And from Rhode Island (the cop has been suspended from duty)

And from a Virginia legislator:

We should be grateful that Secretary of State John Thurston didnt unleash teargas and non-lethal, face-breaking loads against the hundreds who gathered in Little Rock last night.

Count on the Arkansas legislature to join the assault on the First Amendment to further enhance Arkansass status as the most anti-woman state in the country. Interstate travel; advertising for abortion options; medication by mail; advice and financial support by Arkansans for Arkansas women? Expect them all to be under attack. And youll also soon see how empty the assurances were from the Supreme Court majority that same-sex relationships and marriage and contraception are not endangered by Fridays ruling. It provided a road map, as Clarence Thomas made clear, to erode those hard-won rights as well. Trust Kavanaugh or Barrett or Gorsuch not to go along with Thomas, Alito and Roberts on rolling back decisions they opposed? Even Susan Collins might not offer assurances on the next go-round.

Read the original:

The abortion apocalypse threatens the First Amendment, too - Arkansas Times

Younger readers probably wont comprehend how important magazines like Sports Illustrated were in pre-internet culture. Most sports news wasfound in local papers and in short segments at 10 p.m. on the nightly news. Sports Illustrated was oftenthough, periodically, competition would pop upthe sole venue in which a sports fan could find deeply reported, well-crafted features and profiles, not to mention often-remarkable photography (the swimsuit issues, naturally, sold best). The magazines circulation hit around 3.5 million in the mid-1980s, with another million copies being bought on newsstands.

In my late 20s, I brieflyworkedfor the company (well, the website, which was then called CNN/SI.comperhaps a portend of terrible things to come), where I occasionally interacted with one of my writing heroes, Frank Deford. What a dream it was. I would have done it for free. I guess I almost did.

Ive largely ignored the magazine for the past decade or so, not for any philosophical reasons or any animosity, but with all the choices it simply fell off my radar. But after running across an astoundingly nonsensical pieceheadlinedWhen Faith and Football Teamed Up Against American Democracy, Im glad I did.

Ostensibly, the feature is about Kennedy v. Bremerton School District, a SCOTUS case regarding a school district punishing a football coach named Joseph Kennedy for a 30-second silent prayer on the 50-yard line after every game. The pieces subhead describes the case as so:

The U.S. Supreme Court will soon decide the case of a football coach at a public high school who was told he wasnt allowed to pray on the field in front of players. The expected result is a win for the coachand the further erosion of the separation between church and state.

In frontof players? Can you imagine? How will our brittle democracy survive an open display of religiosity? Greg Bishop, who could easily have written this piece for The Nation, offers no explanation of how a prayer is eroding separation of Church and State. Even this atheist, after all, understands that the Establishment Clause doesnt ban praying in public placesnot in schools, and not even in Congress, where prayers are recited before every session.

Bishop anoints Rachel Laser of Americans United for Separation of Church and State his proxy, allowing her to frame the debate over Kennedy in the most preposterously hyperbolic, partisan terms imaginable, even though the only thing her organization excels at is losing cases. The bad-faith retelling of Kennedys story is crammed with partisan platitudes about democracy being under attack on issues like voting rights, LGBTQ rights, and the potential overturning of Roe v. Wade.

Now, its unimaginable that a major publication would allow areporter to throw around phrases like voting integrity, religious freedom, and protecting the life of the unbornwithout quotation marks intimating that the ideas arent realand thats probably always been the case. Though the piece brings upRoethree times, no one explains how a court (concerned solely with the constitutionality of laws) is undermining democratic institutions by giving abortion rights, unmentioned in the Constitution, back to voters. Washington State, home of Bremerton High School, sadly, will not be restricting abortion any time soon.

In any event, Bishop also uses appeals to authority, tapping independent scholars or legal experts who hold no vested interest in the outcomeone of the only names offered isconspiracy theoristLaurence Tribe. He warns readers about the nefarious, big-money forces propping up Kennedy. First Liberty($7,255,961in assets), writes Bishop, is a powerful Christian conservative law firm, part of apowerful right-wing machinepowerfulis the key word herewhile Americans United for Separation of Church and State($11,141,577in assets, not counting in-kind contributions from places like the Meredith Corporation, which has $6.727 billion in assets), are simply terrified and transported to an alternate universe of disinformation and propagandaand, in that world, even democracy is in danger.

Disinformation? Its all just progressive mad libs. Thats what happens when democracy is a euphemism for achieving political ends in whatever fashion happens to be convenient. Sometimes, when the numbers are there, it means crass majoritarianism and centralized federal power; and when the numbers arent there, it can mean compulsion or a court dictating rights by fiat.

In this case, a school district, not the coach, is attempting to limit speech. There is no prohibition on praying in public institutions. Such a prohibition has never existed. Any scholarand Bishop claims to have spoken to many for the piecewho claims that the Constitutions authors would have found the act of kneeling after a competition perilous to foundational American ideals is a complete fraud. Then again, When Faith and Football Teamed Up Against American Democracy is a microcosm of the incurious activism that dominates journalism these days. Its one thing to put up with relentless bias thats infected virtually every area of mainstream culture, but another to see once-respected magazines putting out such banal, predictable propaganda.

Excerpt from:

Sports Illustrated Is Now A Bullhorn For Attacks On The First Amendment - The Federalist

As Ive explained previously, it could be difficult to prove beyond a reasonable doubt that Trump had the corrupt state of mind needed to convict him, for example, of obstructing an official proceeding.

In addition, a prosecution of Trump for inciting violence would face a serious First Amendment hurdle. The Supreme Court has long held that only incitement to imminent unlawful action is sufficient. The speaker had to know that the crowd would immediately break the law.

Courts have routinely set this bar very high in the context of political speech because the First Amendment broadly protects speech of that type. A political statement by the president of the United States would be presumptively protected by the First Amendment.

But now we have Hutchinsons testimony that Trump said he didnt f---ing care that they have weapons. Theyre not here to hurt me and that they would be going to the Capitol later. This is precisely the sort of smoking gun evidence needed to prove that the person speaking meant to incite imminent violence.

The DOJ will understandably be concerned that the Supreme Court particularly the current court would find that Trumps speech was constitutionally protected by the First Amendment. But this evidence should be enough to make them at least consider an incitement prosecution. Before Hutchinsons testimony, an incitement prosecution would likely fail to clear the high First Amendment hurdle. Now, it is at least a close call and something DOJ should seriously consider.

And to be clear, Hutchinsons testimony would not be hearsay if offered by the DOJ at court against Trump. Statements by a party opponent are not considered hearsay, according to Federal Rule of Evidence 801(d)(2). In this case, Trump would be the DOJs party opponent in a criminal prosecution of Trump, and her testimony regarding Trumps statements could be used against him in court.

Hutchinson also provided testimony that gets DOJ closer to what they would need to prosecute Trump for obstructing an official proceeding. That charge requires corrupt intent. She testified that Trump tried to grab the steering wheel of his official vehicle (The Beast) when Secret Service agents refused to take him to the Capitol. She also testified that when an agent physically blocked Trump from seizing the wheel, Trump himself placed his hand on the agents clavicles, just under his neck.

Trumps failed attempt to go to the Capitol, in itself, would not be a criminal offense. But the episode inside The Beast would be powerful evidence of Trumps intent. Up until now, the picture that emerged of Trump was of someone who engaged in inaction while the Capitol was under attack, declining to call off his supporters or to call in police or troops. In itself, that is dereliction of duty, not a crime.

But episodes like trying to wrest the steering wheel show that Trump wanted to be at the Capitol and would have been there if he hadnt been kept from doing so. He wanted to be there, hands on, for the attack itself. That sheds a powerful light on his state of mind.

Juries are typically instructed to infer a defendants state of mind from his words and actions. In this situation, Trumps actions speak loudly, and they can be used as evidence of Trumps state of mind when he engaged in earlier actions.

Prosecutors will still need to put together a case that shows that Trump was involved in a conspiracy or scheme that obstructed the Jan. 6 certification proceeding. Thats not the simple task that many would have you believe. But its easier than establishing intent.

Hutchisons testimony is a game changer. Until now, the only readily provable crimes based on what is known publicly were potentially narrow criminal charges against crooked lawyers. Now it looks like an (otherwise unlikely) incitement prosecution is possible, and there may be the smoking gun needed for an obstruction charge.

The committee was smart to lock in public testimony from Hutchinson when it had the chance, given the potentially unlawful pressure against her to change her tune. Committee members have to hope that others follow in her footsteps. But they already have much of what they need.

Continued here:

Opinion | What Cassidy Hutchinson Said that Could Prove Trump's Criminal Undoing - POLITICO

Former U.S. President Donald Trump gives the keynote address at the Faith & Freedom Coalition during their annual Road To Majority Policy Conference at the Gaylord Opryland Resort & Convention Center June 17, 2022 in Nashville, Tennessee.

Former PresidentDonald Trump has filed a notice that he will appealthe dismissal of his First Amendment lawsuit against Twitter, documents filed in appellate court reveal.

The 45th president and several additional plaintiffs including anti-vaccine advocates, COVID-19 misinformation spreaders, and conservative activists signaled their intent to appeal by filing a notice of appeal as well as a series of procedural exhibits in a Monday filing with the U.S. Court of Appeals for the Ninth Circuit.

In May of this year, the lawsuit was dismissed by U.S. District Judge James Donato, who found that the content moderation decisions made by Twitter in no way impacted the First Amendment because Twitter is not the government.

Plaintiffs main claim is that defendants have censor[ed] plaintiffs Twitter accounts in violation of their right to free speech under the First Amendment to the United States Constitution, the judge noted in an 18-page order. Plaintiffs are not starting from a position of strength. Twitter is a private company, and the First Amendment applies only to governmental abridgements of speech, and not to alleged abridgements by private companies.'

In an inline citation to case law, the opinion offers a basic distillation of First Amendment doctrine [emphasis in original]:

[T]he Free Speech Clause prohibits only governmental abridgement of speech. The Free Speech Clause does not prohibit private abridgment of speech.

The only possible way for Trump and the other plaintiffs to make a First Amendment claim against Twitter, Donato noted, was the narrowly-applied state action doctrine, which holds that government activity can be viewed as dominating a private activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints. But that doctrine, the judge went on, is not an easy claim to make.

In response to Twitters eventually-granted motion to dismiss, Trump and the others plaintiffs were found not to have strongly argued that the state action doctrine actually applied to their case on the merits. Rather, the thrust of their argument, Donato noted, was a procedural pleading that the inquiry was too fact-intensive to be dealt with on a motion for summary judgment. The judge rejected that out of hand and then described Trumps pleaded facts.

From the May dismissal:

Twitter is said to have closed Mr. Trumps account because of the risk of further incitement of violence and threats to physical safety. Twitter closed plaintiff [Linda] Cuadross account due to a post about vaccines, and Dr. [Naomi] Wolfs account for vaccine misinformation; Plaintiff [Rafael] Barbozas account was closed after retweeting President Trump and other conservatives on January 6, 2021,; plaintiff [Dominick] Latella after he post[ed] positive messages about Republican candidates and President Trump, and plaintiff [Wayne Allen] Root for messages he posted related to COVID-19 and the 2020 election results.

If anything, these explanations indicate that Twitter acted in response to factors specific to each account, and not pursuant to a state rule of decision, the order granting Twitter motion to dismiss explained.

Trump and the others cited a handful of comments made by Democratic Party politicians to argue that the state was directing Twitters censorial moves, however, the judge noted, the comments of a handful of elected officials are a far cry from a rule that is actually being enforced by the state.

There is no way to allege with any degree of plausibility when, if ever, the comments voiced by a handful of members of Congress might become a law, or what changes such a law might impose on social media companies like Twitter, Donato went on.

The plaintiffs will soon have to re-litigate their theories of alleged state action in one of the nations traditionally most left-leaning and Free Speech-favoring appellate courts.

Substantive pleadings in the case stylized as Trump v. Twitter have yet to be filed.

The notice of appeal is available below:

[image via Seth Herald/Getty Images]

Have a tip we should know? [emailprotected]

The rest is here:

Trump Plans to Appeal Dismissal of Twitter First Amendment Lawsuit in Ninth Circuit - Law & Crime

How much academic freedom do K-12 teachers actually have to teach what they want? How far does the First Amendment go in shielding them? And where would they stand in the face of new state laws taking aim at the use of critical race theory or the teaching of antiracist lessons?

Measures introduced in at least 20 state legislatures to rein in teaching about race and other controversial and divisive topics have thrust teachers into uncertainty over what they can discuss in the classroom and whether they would face discipline or other legal consequences if they overstep.

This would make me hesitate now on some lessons about race, said August Plock, a social studies teacher at Pflugerville High School, near Austin, Texas. It potentially puts a chill over teachers.

Texas is one of five states where legislators have passed proposals so far this year limiting how teachers may address race issues in the classroom, with laws already signed by governors in Idaho, Iowa, Oklahoma, and Tennessee.

These measures pose a host of legal questions. For example, John Rumel, a law professor at the University of Idaho, said the measure passed in his state raises First Amendment free speech issues.

If Im a K-12 teacher, Im not sure what I can do, said Rumel, a former general counsel to the Idaho Education Association. Can I mention there is a rubric known as critical race theory that exists? Im not espousing it. This measure would give me pause as a teacher and might chill my speech.

While its too early for any of the new laws to have been challenged, the wave of legislation has teachers wondering how much leeway they have to veer from approved curricula or to address issues proscribed by state laws.

The blunt answer: While K-12 teachers retain some protections for their comments on issues of public concern, they dont have much in the way of academic freedom to veer from the curriculum or infuse their own experiences and views into the classroom.

I am reluctant to come to this conclusion, but in the K-12 sector, teachers do not really have any academic freedom, said Richard Fossey, a recently retired professor who taught education law at the University of Louisiana at Lafayette and has co-written several journal articles on the topic.

Suzanne Eckes, an education professor at Indiana University-Bloomington who has also written about the issue, said that under a series of decisions from the U.S. Supreme Court and the federal courts of appeals, K-12 teachers do not have the type of academic freedom that courts have recognized for college professors.

You dont have a lot of leeway, Eckes said she tells teachers. If a teacher called me and said, I want to teach the 1619 Project or about the Tulsa race massacre but my supervisor has advised me not to, I would sympathize with them, but would add that they could get in trouble for teaching those concepts.

The laws passed or proposed so far generally prohibit schools from teaching that one race or sex is inherently superior, that any individual is consciously or unconsciously racist or sexist because of their race or sex, and that anyone should feel discomfort or guilt because of their race or sex.

Some adopted or pending measures specifically mention critical race theory, a decades-old academic framework that examines how racism has shaped the U.S. legal system and has become the crux of controversies across the country.

Richard Fossey, retired law professor, University of Louisiana at Lafayette

At least two proposals specifically singled out as a prohibited topic for the schools the 1619 Project, a long-term reporting effort by The New York Times that has been turned into a curriculum centered around the year that enslaved Africans were first brought to colonial America.

But it remains unclear to what degree the various pieces of legislation address specifics of whats actually being taught in the nations schools.

Very few school districts will say out loud, Were adopting critical race theory, said Daniel R. Suhr, a lawyer with the Chicago-based Liberty Justice Center, which has sued a Nevada charter school and a Virginia school district over some of their anti-racism curricula or policies. They might say, Were embracing equity.

Critics often cite critical race theory as the basis for many diversity and inclusion efforts, regardless of how much the framework has actually informed those programs.

Many teachers, of course, freely express their opinions in their classrooms and make instructional decisions that veer from the approved curriculum.

I was a high school teacher, and I was always giving my political opinion and nothing ever happened to me, said Eckes, the Indiana University education professor. But that was due more to the grace of school administrators than any legal protections.

The U.S. Supreme Court has recognized academic freedom for professors and institutions at the higher education level, with a 1967 decision calling the college classroom the marketplace of ideas.

When it comes to K-12 teachers, the high court has made some lofty pronouncements, such as its language in the landmark Tinker v. Des Moines Independent Community School District decision on student speech, which declared that neither students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Education law scholars also can point to a handful of cases in which K-12 teachers did win court rulings in support of their classroom expression. In the 1960s and 1970s, teachers won cases after being fired for uses of the F-word, for using a controversial role-playing method to teach about Reconstruction, and for distributing surveys to students about sex, drugs, and euthanasia.

But in 2006, the Supreme Court ruled in Garcetti v. Ceballos that public employees generally do not have First Amendment protection for their on-the-job speech.

In a friend-of-the-court brief submitted in the Garcetti case, the National Education Association had argued that to teach is to communicateoften on matters of the greatest public importance and controversy. A decision that failed to recognize First Amendment protection for job-related speech would have a devastating impact on teachers, the union said in its brief.

Garcetti involved an employee of a prosecutors office. In his majority opinion, Justice Anthony M. Kennedy said the court was not deciding whether its analysis would apply in the same manner to a case involving speech related to scholarship or teaching. The line was perhaps a response to a dissent by Justice David H. Souter, who expressed concerns about the effect of the majoritys principle on academic freedom in public colleges and universities.

Since Garcetti, numerous courts have ruled that the potential exception for scholarship and teaching did not apply to K-12 educators.

In a 2007 case, a federal appeals court upheld the non-renewal of an Indiana middle school teacher who had expressed her opposition to the U.S. war in Iraq to her students, which had led to parent complaints.

Another federal appeals court, in a 2016 decision, upheld the discipline of a Chicago 6th grade teacher whose principal overheard him teaching his students not to use the N-word. The teacher was suspended for five days for using verbally abusive language in front of students, even though the teacher was trying to explain why the word was offensive.

In a 2010 decision, a federal appeals court upheld the non-renewal of an Ohio high school teacher who had centered a lesson around banned books that included some selections parents considered inappropriate. The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, analyzed the competing interests at stake in that case, Evans-Marshall v. Tipp City Exempted Village School District.

On the one side, doesnt a teacher have the First Amendment right to choose her own reading assignments, decide how they should be taught and above all be able to teach a unit on censorship without being censored or otherwise retaliated against? the court said. On the other side, doesnt a school board have the final say over what is taught, and how, in the public schools for which it is responsible? Who wins depends on which line of legal authority controls.

The appeals court sided with the school district, holding that Garcetti applied because the teacher was acting pursuant to her job duties and the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools.

Stuart Stuller, Colorado attorney representing school boards

The 6th Circuit court recently appeared to reaffirm the distinction on academic freedom between college professors and K-12 teachers. A 6th Circuit panel ruled in March that an Ohio college professor who refused to use the preferred pronouns of a transgender student because of the professors religious beliefs was protected by academic freedom.

The college had punished a professor for his speech on a hotly contested issue, in violation of the First Amendment, the court held. The court said in a footnote that its 2010 ruling in Evans-Marshall was limited to schoolteachers.

Fossey, the University of Louisiana professor, said the Supreme Courts Garcetti decision has been really hostile to the view that K-12 teachers have any control over the curriculum or even their teaching style.

Stuart Stuller, a veteran Colorado attorney representing school boards, said the rationale for districts supervision of teachers on-the-job speech is that when the teacher is standing in front of the classroom, that teacher is a representative of the state.

The First Amendment doesnt necessarily give subordinate employees the right to do something the supervisor has told him not to do, said Stuller, who is nonetheless sympathetic to academic freedom concerns of teachers and once wrote a law journal article on the subject.

Teachers and other public school personnel still have First Amendment protections for speaking out on matters of public concern outside of their job duties, even when those matters involve the operations of their employer.

That was underscored by another controversy this month in the 82,000-student Loudoun County, Va., district outside Washington, D.C. A state judge ordered the reinstatement of an elementary school teacher who was suspended after speaking up at a school board meeting against a proposed gender-equity policy that would include requiring teachers to address transgender students by names and pronouns used by those students. The district received several complaints about the teachers public comments and placed him on administrative leave because of the disruptive impact his remarks had on his school, court papers say.

The state judge on June 8 issued a temporary injunction in favor of the teacher after analyzing the case under Pickering v. Board of Education of Township High School District 205, a 1968 Supreme Court decision that a teachers speech on a matter of public concern is protected under the First Amendment if it outweighs the employers interests in workplace efficiency and lack of disruption.

Alice OBrien, the general counsel of NEA, said the new state laws limiting what teachers and schools may say about racism and other matters are certain to be challenged in court, though likely not on the grounds of teacher academic freedom.

These are situations where the state legislature is prohibiting the instruction of certain concepts in the schools, she said. These laws are aimed at instruction across a state, and that is a different context than that of an individual teacher right.

Such challenges will likely be based on the 14th Amendments equal-protection clause because the measures were enacted with racial animus, OBrien said. And they could be subject to challenge based on the First Amendment right of students to receive information, she said.

OBrien pointed to rulings that resulted in the invalidation of an Arizona law that barred public schools from instituting an ethnic studies curriculum, such as by holding classes or programs that promoted resentment toward a race or class of people, that were designed primarily for pupils of a particular ethnic group, or that advocated ethnic solidarity instead of treating students as individuals.

The law was pushed for by a Republican state superintendent of public education and was targeted at a Mexican American Studies program in the Tucson school district and challenged in court.

The U.S. Court of Appeals for the 9th Circuit, in San Francisco, in 2015 held that the law was not unconstitutional on its face, but allowed the challenge to proceed based on evidence of discriminatory purpose in the enactment and enforcement of the law. A federal district judge in 2017 struck down the Arizona law on equal protection and First Amendment grounds.

These statutes want schools to impart a particular view of America, said OBrien. They are intended, at the very least, to chill speech. And they seem to be having that impact.

Originally posted here:

If Critical Race Theory Is Banned, Are Teachers Protected by the First Amendment? - Education Week