Are cable news channels protected by the First Amendment?

Thats the question teed up in a little-noticed lawsuit against Fox News for its COVID-19 coverage, which the plaintiff claims discounted the threat of the pandemic and led viewers to fail to protect themselves. The plaintiff, a small Washington state nonprofit called the Washington League for Increased Transparency and Ethics, or WASHLITE, is suing Fox for what it claims are violations of the states consumer protection laws.

Fox and WASHLITE have already gone back and forth on the consumer protection claim, but the nonprofit filed an extraordinary brief last week in response to Foxs motion to dismiss, arguing that cable news channels, indeed all cable content producers, are wholly unprotected by the First Amendment when that content is distributed over a third-party cable operators system. The plaintiff is misstating the law and doing so in such a way that would impair speech and press protections for everyone.

In fact, the argument if taken to its logical conclusion would strip First Amendment protections from content distributed over the public internet, including this blog post. To understand why, one needs a bit of background.

Cable television in the United States dates back to the late 1940s and early 1950s, but for the first quarter century of its existence was limited to sending terrestrial, over-the-air television broadcasts over coaxial cables to areas that, because of remoteness or mountainous terrain, suffered poor reception. Original cable programming started in the early 1970s with pioneers like Home Box Office, TBS, and the cult Z Channel in Los Angeles.

Starting at about the same time, the Federal Communications Commission began promulgating rules for cable programming, the most relevant here being requirements that cable programmers dedicate certain channels for public, educational, or government (PEG) use, or for commercial lease by unaffiliated programmers. An ongoing debate over the FCCs authority to impose these rules and efforts to both regulate and deregulate the industry led to passage of federal laws in 1984 and 1992 governing cable providers leased access and PEG channel requirements.

Prior to 1992, cable providers were prohibited from exercising any editorial control over leased or PEG channels. In the 1992 law, Congress enacted three provisions empowering cable providers to permit or restrict leased access or PEG programming that depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards (in other words, indecent content).

The first provision permitted, but did not require, cable operators to enforce rules against indecency on PEG or leased access channels. The second was an affirmative command: If an operator decided to permit indecent content over leased access channels, it had to limit it to a single channel and block access unless a cable subscriber requested access (the segregate-and-block requirement). Third, the 1992 law required the FCC to implement regulations that would allow cable operators to prohibit similar content on PEG access channels.

A coalition of cable programmers and viewers challenged parts of the law under the First Amendment. That 1996 Supreme Court case, Denver Area Telecommunications Consortium, Inc. v. FCC, is the main precedent cited by WASHLITE against Fox. The decision itself is a thicket there are six different opinions but the bottom line is that it does not stand for the proposition that cable programmers are unprotected by the First Amendment when their content is distributed by a third-party cable operator, quite the contrary.

Crucially, the majority found that the second provision, the affirmative segregate-and-block requirement for leased access, was a violation of the First Amendment rights of programmers and operators. Six justices agreed (Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day OConnor, David Souter, and John Paul Stevens). Three justices Chief Justice William Rehnquist, and Justices Antonin Scalia and Clarence Thomas dissented. And WASHLITE relies on this dissent, which, as explained below, also does not hold that cable programmers are unprotected by the First Amendment.

Indeed, the action in the case was around the first and third provisions. Confusingly, two justices Kennedy and Ginsburg would have struck down all three provisions. And, three justices Thomas, Scalia, and Rehnquist would have upheld all three provisions (thus they concurred in upholding the first provision). Justice OConnor would have upheld the first and third provisions.

Accordingly, the Court upheld the first provision, which permitted but did not require cable operators to limit indecent content on leased and PEG channels, by a vote of 7-2. As noted, the second provision was struck down by a vote of 6-3. And the third provision, permitting operators to regulate indecent speech on PEG channels, was held unconstitutional by a vote of 5-4. (Justices found that, unlike leased channels, PEG programming was, one, unlikely to contain indecent content and, two, was provided for in local franchise agreements, meaning that a federally recognized right to limit indecent speech could interfere with those agreements.)

Returning to the dissent relied on by WASHLITE, as noted, Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, would have upheld all three provisions. For the first and third provisions, Justice Thomas focused on their permissive nature that is, they did not forbid cable operators from carrying indecent content, and therefore did not burden the First Amendment rights of cable programmers (note that Justice Thomas is acknowledging that such rights exist).

Rather, the first and third provisions restored editorial discretion to the cable operator. As Justice Thomas reasoned, the cable operators were the ones harmed by the PEG and leased access requirements, like a bookstore forced to sell books published on the subject of congressional politics. This is what WASHLITE cites in their brief they note that Justice Thomas held that cable programmers do not have an affirmative right to force a private cable operator to carry content, but Justice Thomas did not say that content providers lack First Amendment rights.

Further, with respect to the second provision, the segregate-and-block requirement for cable operators who decide to carry indecent programming, far from eschewing First Amendment rights for the cable programmers, Justice Thomas expressly recognizes them. Unlike the first and third provisions, the segregate-and-block requirement clearly implicates [the cable programmers and viewers] rights, Justice Thomas wrote.

But, Justice Thomas applied strict scrutiny the highest level of constitutional scrutiny, which courts must apply to government restrictions on speech based on its content and found that the government had met its burden to show the second provision was narrowly tailored to satisfy a compelling government interest. In other words, the dissenting justices would have found that, while cable programmers have First Amendment rights, the government had a really good reason to require operators to segregate and block indecent content (to protect children) and that other means to do so, like the V-chip, were not up to the task.

At base, WASHLITE makes two legal errors. One, it relies on a dissent in a case where the majority expressly found First Amendment protections for cable programmers on a third-party cable system. Two, it misconstrues that dissent. Rather than holding that cable programmers have no First Amendment rights, the dissent would have found that in the context of indecent programming the segregate-and-block requirement satisfied the strict in theory, fatal in fact high bar of strict scrutiny analysis. WASHLITE has failed to even advance an argument as to why the same analysis should apply in the context of a state consumer protection lawsuit seeking to penalize the exercise of editorial discretion on a news channel.

Two final points are in order.

First, not only does WASHLITE misstate the law with respect to cable, it does so with respect to print and over-the-air broadcast media as well. The only medium of communication subject to slightly less First Amendment protection under current law is bunny ears broadcasting that is the use of the electromagnetic spectrum to broadcast audio and visual information over the air. This is because, one, spectrum is scarce, meaning government intervention is theoretically justified to preserve viewpoint diversity, and, two, its pervasive, meaning that, in essence, children could be inadvertently exposed to indecent speech absent government regulation.

Further, that limited exception for over-the-air broadcast is itself now controversial, as the advent of the internet, the conversion of analog signals to digital, and other technological advancements that have mitigated scarcity and allowed for greater consumer control, have undercut the legal justifications for the Red Lion and Pacifica decisions allowing government regulation of over-the-air content.

Second, and as noted, WASHLITEs argument is not limited to cable. It is effectively saying that when a news organization uses a third party to get its news to the public, the content of that news receives no First Amendment protection.

Among other things, that logic would extend to newspapers who use third-party contractors to deliver the physical paper or rely on internet service providers to distribute digital content. It would extend to syndicated radio programs who sell content to third-party broadcasters. And it would apply to the broadcast networks. ABC, CBS, the CW, FOX, and NBC would only be protected when their programming is broadcast by owned-and-operated stations. PBS wouldnt be protected at all because it doesnt own its member stations.

In fact, that logic would strip First Amendment protections from this blog post because the Reporters Committee relies on a third party to host our website and third-party internet and technology providers to transmit our speech to the public.

The COVID-19 pandemic is both a public health crisis and a profound challenge to civil liberties here and around the world. And it is a political crisis that is provoking intense and acrimonious policy debates at all points on the ideological spectrum. But that debate means that the First Amendment matters more now, not less, and regardless of who is doing the speaking or debating, it should be vigilantly protected. WASHLITEs legal theory would limit the ability of all Americans to report the news or, more broadly, speak freely on one of the most important public policy debates in generations.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

Read more from the original source:

Fox News lawsuit would strip First Amendment protection from cable news, internet - Reporters Committee for Freedom of the Press

Around the nation, state lockdown orders during the coronavirus pandemic have led to sharp debates over the trade-offs inherent in such orders. We have no doubt that states have and should have extremely broad authority to take steps to protect public health during an outbreak that has sickened so many Americans.

But we also have no doubt that some of the restrictions imposed by states are utterly inconsistent with the First Amendment.

Consider California. Three weeks ago, hundreds gathered at the Capitol to protest the state's stay-at-home order. In response, the California Highway Patrol indefinitely banned all in-person protests at state facilities.

Such a ban on protests is at odds with the way California treats other activities. Gov. Gavin Newsoms initial stay-at-home order carved out exceptions for socially distant exercise and visits to gas stations, pharmacies, grocery stores and other essential businesses. On May 8, Governor Newsom permitted bookstores, toy stores, clothing stores and florists to reopen for curbside delivery, yet the blanket ban on protests remains.

California is not alone in ignoring the constitutionally protected status of public protests. In New York City, protesters who were wearing masks and abiding by social distancing requirements were arrested or issued summonses. While we greatly, greatly respect the right of people to protest, there should not be protests taking place in the middle of a pandemic, New Yorks police commissioner, Dermot Shea, has said. Mayor Bill de Blasio has asserted that people who want to make their voices heard there are plenty of ways to do it without gathering in person.

The power of the states to restrict protests at parks and state capitols is very limited. States can surely prohibit violent protests, as the First Amendment protects the right of the people peaceably to assemble. But other restrictions must be narrowly tailored to serve a significant government interest, which is precisely what Californias ban is not.

California could permit protests on the condition that individuals abide by social distancing guidelines and mask ordinances. It could reasonably limit the number of protesters so that social distancing is feasible. To protect the health of state employees, it could impose buffer zones around entrances and exits to state buildings.

But that is not what California did. Instead, it chose to indefinitely strip Californians of their fundamental right to protest.

In one of the first rulings on the subject in the new Covid-19 world, a federal judge on May 8 upheld Californias ban on in-person protests. The court reasonably concluded that California has a legitimate interest in limiting person-to-person interactions and that permitting 500- or 1,000-person protests would undermine that interest.

But in the absence of any narrower alternative having been provided by the litigants, he upheld the ban. The courts decision was at a preliminary stage of the case and is subject to later change.

The courts ruling, which afforded the California order substantial deference, remains troubling. Applying the emergency measures test, the court held that it could strike down Californias ban only if it bore no real or substantial relation to public health, or if the measure was beyond all question a plain, palpable invasion of rights secured by fundamental law. The Supreme Court developed that test to ensure that states have the authority they need to protect public health; it is not a license for suspending constitutional rights.

Protecting public health while preserving the freedoms of speech and assembly is no easy task amid a pandemic. But the Supreme Court has declared that the First Amendment reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.

Our commitment to public debate on public issues has been a lodestar through good times and bad. As our political leaders navigate our collective response to the worst public health crisis in a century, it is critical that we preserve, to the maximum extent possible, opportunities for political dissent. The First Amendment sometimes requires discomforting results to protect the liberties of our people.

Floyd Abrams, a constitutional lawyer who is a visiting lecturer at Yale Law School, is the author of The Soul of the First Amendment. John Langford is counsel at Protect Democracy.

The Times is committed to publishing a diversity of letters to the editor. Wed like to hear what you think about this or any of our articles. Here are some tips. And heres our email: letters@nytimes.com.

Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.

See more here:

The Coronavirus Protests Are Protected by the Constitution - The New York Times

Image courtesy of the U.S. Food & Drug Administration

WASHINGTON The federal Family Smoking Prevention and Tobacco Control Act directs the FDA to issue regulations requiring new text and color graphic health warnings depicting the negative health consequences of cigarette smoking. In 2011, the FDA issued a rule requiring nine text warnings and graphic pictures to be printed on cigarette packs, cartons and advertisements.

Several cigarette manufacturers challenged this first text and graphic cigarette health warning rule in court on the grounds that the warnings violated commercial free speech protections under the First Amendment to the U.S. Constitution. In 2012, the U.S. Circuit Court of Appeals for the District of Columbia overturned these warnings as violating the First Amendment and sent the matter back to the FDA to create new warnings that comply with Constitutional standards.

On March 17, 2020, the FDA issued a new rule requiring 11 new health warnings on cigarette packs, cartons and ads, consisting of text warning statements accompanied by graphic color images. These new warnings would be required beginning June 18, 2021. Two federal lawsuits have been filed to invalidate this rule.

On April 3, 2020 R.J. Reynolds Tobacco Co., along with several other manufacturers and five retailers filed a lawsuit in the Eastern District of Texas to invalidate both the FDAs recently issued rule for new text and graphic cigarette health warnings and Congresss requirement that the FDA mandate these warnings. On May 6, the plaintiffs in this lawsuit and the FDA jointly asked the court for a 120-day extension of the effective date of the new cigarette health warnings to Oct. 16, 2021, because of the disruptive effects of the global outbreak of COVID-19 on both manufacturers and retailers and on the FDA. A decision by the federal court on extending the effective date is pending.

Also on May 6, Philip Morris USA Inc. and Sherman Group Holdings LLC filed a lawsuit in the District of Columbia against the FDA also seeking to invalidate the graphic warnings rule and Congresss requirement that the FDA mandate these warnings.

Several legal claims were made in these two lawsuits, including:

Although the graphic warnings requirements most directly impact manufacturers, who must provide the warnings on packages, cartons and advertisements, retailers need to be aware of the progress of these cases as their outcome will impact the cigarette products retailers sell.

Thomas Briant is the executive director of NATO, a tobacco retailing association based in Lakeville, Minn. Reach him at info@natocentral.org.

Get todays need-to-know convenience industry intelligence. Sign up to receive texts from CSP on news and insights that matter to your brand.

Link:

Lawsuits Filed to Overturn FDA Graphic Cigarette Warnings - CSPDailyNews.com

Heres what the staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press is tracking this week.

Last Wednesday, the Senate passed an amendment to the Foreign Intelligence Surveillance Act that would addimportant protections for the news media.

The amendment, sponsored by Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.), would specifically expand the use of amicus curiae court-appointed experts who represent the interests of individual privacy and civil liberties in the Foreign Intelligence Surveillance Court. While current law requires the appointment of an amicus curiae only when the court is presented with a novel or significant interpretation of the law, the amendment would expand mandatory appointment to other scenarios, including the rare case that presents or involves an investigative matter involving the activities of the domestic news media. (The court could decline to appoint an amicus if it issues a finding that such an appointment would not be appropriate.)

Before the Senate vote, the Reporters Committee sent aletterto the Senate in support of the Lee-Leahy amendment. The amendment passed with broad bipartisan support, 77 to 19. It will now be added to the broader intelligence bill theUSA FREEDOM Reauthorization Act and introduced for a vote in the House of Representatives.

Another amendment, which the Reporters Committee also supported,failedby just one vote. Sponsored by Sens. Steve Daines (R-Mont.) and Ron Wyden (D-Ore.), it would have prohibited applications under the FISA business records provision that seek internet website browsing information or internet search history information.

Echoing theargumentit made inUnited States v. Carpenter the Supreme Court case that imposed a warrant requirement for more than a week of cell site location information the Reporters Committee explained in its letter that web browsing information can likewise expose sources and journalistic methods [and] can put sources jobs and lives at risk, compromise the integrity of the newsgathering process, and have a chilling effect on reporting.

Jordan Murov-Goodman

The Reporters Committee, represented by the First Amendment Amicus Brief Clinic at the UCLA School of Law, recently filed afriend-of-the-court briefin a case involving a public records request by Georgetown law schools Center on Privacy & Technologyto the New York Police Department for records regarding the departments use of facial recognition technology. The NYPD released some records but later said that certain records were mistakenly disclosed. Not only did the trial court order CPT to return some of the inadvertently disclosed records, it also prohibited the think tank from referring to or referencing the documents, which the appellate division affirmed. The Reporters Committees briefarguesthat CPT should be granted leave to appeal to the New York Court of Appeals because the order is an unconstitutional prior restraint.

TechCrunchreportedlast week that the workplace messenger app Slack has confirmed that it has started to remove metadata, including location information, from photos shared on the platform. The move could provide additional security for users such as journalists who might have to rely on the messaging service to correspond with sensitive sources.

Social media platforms continue to grapple with how to address the rapid spread of misinformation about COVID-19, with Facebook and Instagramremovinga conspiracy-focused video called Plandemic from their platforms and rejecting ads that include it. YouTube has similarly removed uploads of the video for violating Community Guidelines. Twitter alsoannouncedlast Monday that it will label and potentially remove misleading, disputed, or unverified tweets about COVID-19.

The Department of Homeland Security recentlyannouncedthat Chinese journalists working for non-American news outlets and seeking to report from the U.S. would be limited to 90-day work visas, with the possibility of extensions. Previously, DHS granted open-ended, single-entry stays to such journalists. Some have noted the change is likely a result of mounting tension between the Trump administration and China, particularly around COVID-19, that has resulted in retaliation by both countries against journalists from the other country.

Surveillance software company NSO Groups North American branch attempted to sell its phone-hacking technology to at least one U.S. police department, Vices Motherboardreported. An anonymous former employee explained to Motherboard that this technology was the same as that used by foreign governments, including Saudi Arabia in surveilling associates of murdered Washington Post Global Opinions contributing columnist Jamal Khashoggi.

Responding to public scrutiny and several lawsuits, facial recognition technology firm Clearview AIstatedthat it will terminate its contracts with private companies, instead selling its software solely to government and law enforcement customers. Lawyers representing plaintiffs in at least one lawsuit, as well as privacy advocates, say the companys move does not go far enough, leaving in place a system that exposes nearly everyone to continued privacy harms.

Smart reads

The Washington Post Magazine published anadapted excerptfrom reporter Barton Gellmans upcoming book about how he met National Security Agency whistleblower Edward Snowden and broke the news about the U.S. surveillance program.

The MIT Technology Review has developed aCovid Tracing Trackerdatabase to increase public awareness of the privacy practices of different apps purporting to assist in contact tracing.

Gif of the Week:This weeks newsletter is just the surveillance-heavy newsletter.

Like what youve read?Sign up to get This Week in Technology + Press Freedom delivered straight to your inbox!

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 Fellow Linda Moon and Legal Fellows Jordan Murov-Goodman and Lyndsey Wajert.

Read the original post:

This Week in Technology + Press Freedom: May 17, 2020 - Reporters Committee for Freedom of the Press

The Norman Police Department said it determined the communication Norman Mayor Breea Clark reported Thursday morning doesnt constitute a direct threat to the public or to Clark and was protected by the First Amendment.

The Norman Police Department said in a press release Friday afternoon that it received information regarding an alleged threat posted to the Facebook group Reopen Norman referencing Clark Thursday morning.

According to the Oklahoman, the police department began an investigation into the social media post after Clark reported a Facebook post that read Mayor (expletive), needs to be pulled out of office and tried on the court house lawn the problem with politicians, they dont get hung in public anymore #bringbackpublichangings!

The comment was later attributed to Eddie Zaicek, a police officer in Lexington, according to the Oklahoman, although he denied posting it, saying his account had been hacked.

According to the release, involved parties were cooperative throughout the investigation, and the individual responsible for the comment admitted to writing and posting it on social media. Investigators found no indication of a direct threat to public safety.

Investigators presented the case to the Cleveland County district attorneys office, which determined charges couldnt be filed.

According to the release, based on Oklahoma State Statute, investigators found that the communication was not a direct threat and was actually protected by the First Amendment.

Follow this link:

Alleged threats against Norman Mayor Breea Clark protected by First Amendment, Norman Police Department determines - The Oklahoma Daily

The lawsuit alleges the Governor's executive orders preventing gatherings of more than ten people violate the Constitution.

Almost a full week into Phase 1 of Governor Roy Cooper's reopening plan, some religious leaders in our state are suing the Governor over his executive order.

They say the rules around church services violate the Constitution, and they should be allowed to worship indoors.

During the coronavirus pandemic, churches and houses of worship have had to adapt - from streaming services online to holding drive-in services in the parking lot.

While many say they understand the Governor's plea to keep services remote or outside, others - like Pastor Ronnie Baity - believe this is an infringement on their rights.

"The greatest institution in America has been put on ice," said Baity at a press conference in Raleigh Thursday, "It's time that we go back, under the right sanitary conditions."

Those strong feelings have led to a lawsuit against the Governor, filed by Baity and his religious organization Return America. The pastor of Berean Baptist Church in Winston-Salem believes the executive order banning indoor gatherings of more than 10 people violates the first amendment.

"The church house is not an incubator for the disease. It's everywhere. And we believe that as we exercise these sanitary conditions that our chances here are no worse than they are at Walmart," he said in an interview Thursday.

"You've got to follow your conscience. You've got to do what you think is best for you," he said, "That's precisely what we are doing. We are concerned that our First Amendment rights are being trampled underfoot."

Meantime, Governor Cooper urged congregations to consider whether indoor services are the right thing to do right now.

"We need North Carolinians to keep doing what they know protects them from this pandemic," he said in a press conference.

Over at Lebanon Baptist Church in Greensboro, Pastor Matt Smith says that means respecting the state's orders.

Last weekend, his church held Sunday service in the parking lot and live-streamed it for folks at home.

"We havent felt the need to really press the issue at this point," he said, "We feel like a big part of church is that we gather together, and we want to do that as soon as we possibly can. Were doing it in the best ways that we can right now.

"But we believe the church is much more than that. We believe the church has continued to be for these past several weeks - to be alive and well and continue to be the hands and feet of Christ in our community."

This Sunday, Pastor Smith says they're holding service on the ball field at Lebanon Baptist.

Go here to read the rest:

'We're concerned that our First Amendment rights are being trampled underfoot' | Winston-Salem pastor files lawsuit against Governor Cooper -...

The last thing I wanted was to become the subject of a story, wrote Tara ONeill, a reporter for CTPost.com, in a story she posted last May.

ONeill, based in Bridgeport, Conn., was filming a protest on the second anniversary of the death of Jayson Negron, a 15-year-old shot by local police, when she was approached by uniformed officers and asked to move off the sidewalk.

When she told them she had every right to be on a public sidewalk, they cuffed her. She caught the whole thing on video, quoting one officer who said later he didnt know she was in the media. As she wrote, she was patted down.put into a police cruiser and taken to booking.

Arguably, police knew who ONeill was. She had been reporting on allegations of misconduct by the Bridgeport Police Department over the previous two years. Subsequently, as she put it, she was unarrested. One of her editors later speculated the arrest was retaliation and intimidation for her coverage.

Editors Note: video of her arrest, taken by ONeill, can be accessed here.

Whether true or not, such so-called catch-and-release practices by police to stop reporters, including citizen journalists, from covering legitimate events are far from rareand they are now more likely to be upheld in court, according to a forthcoming Columbia Law Review paper.

A Supreme Court ruling last year effectively leaves journalists even more vulnerable by upholding police claims that probable cause in which an officer believes a reporter is violating the lawoverrules a claim of First Amendment protection of freedom of speech, wrote the papers author, John S. Clayton, a J.D. Candidate at Columbia Law School.

Clayton, who used the Tara ONeill incident to illustrate his case, argued that the Nieves v. Bartlett ruling determined that if there were probable cause for an arrest, (like jaywalking, or failure to comply with an officers demands), it defeats any First Amendment claim against law enforcement except for certain, atypical arrests.

In other words, if a journalist or citizen journalist believes theyre being arrested because the arresting officer doesnt like their coverage or wants to intimidate them, claims that First Amendment rights were violated are null if the officer can provide a probable cause for arrest or detention.

In a synopsis of Nieves (cited by Clayton), Prof. Jud Campbell, an expert in constitutional law, said police cannot make an arrest just in retaliation for First Amendment-protected speech.

But he noted that the concept of probable cause can effectively override that defense if an officer can cite specific examples of offensive behavior, such as refusing to follow directions, or even acting in an unruly manner.

Journalists covering a mass protest could be especially vulnerable, Campbell observes.

Others media experts agree.

The concern for journalists is that almost everyone at a protest, or a similarly chaotic crowd scene, is guilty of some minor infraction, Frank D. LoMonte, the Director of the Brechner Center for Freedom of Information wrote in a Medium article.

A videographer following marchers down a busy street may be jaywalking or obstructing traffic, even by stepping off the curb for a moment.

The U.S. Press Freedom Tracker website has estimated that since 2017, over 60 journalists have been arrested, most often while covering protests. This statistic doesnt include the attacks, arrests or attempts to interfere with members of the public, acting as citizen journalists, who have used their smartphones or videos to record police shootings of unarmed civilians or arrests.

Clayton went on to argue that because of Nieves, its become increasingly difficult for a newsgatherer to prove that an officers arresting motive is to punish their exercise of free speech.

[The Supreme Court ruling allows] authorities to arbitrarily wield broad, censorial power to suppress information before it reaches the marketplace of ideas, he wrote.

Nieves now sets an ominous precedent for upholding officers who claim their actions against a journalist were the result of perceived inflammatory behavior, thereby superseding any First Amendment retaliation claim made against the police.

Clayton calls this behavior catch-and-release moving a journalist away from the scene of an event where they might witness questionable behavior by law enforcement, but without subjecting the journalist to arrest.

Clayton maintained that arresting journalists for something like standing in the wrong place during a protest allows authorities to essentially censor the media. Courts might, however, conclude that this amounts to prior restraint, a form of censorship that might produce an acceptable argument in the medias favor in court.

Frank LoMonte of the Brechner Center noted that the nature of modern mass protests reinforces the ability of law enforcement to clamp down on coverage they find objectionable.

If [a] momentary misstep is now going to justify an arrest even if the officers real motive is to suppress news coverage then the First Amendment right to gather news on the scene of a heavily policed public event becomes nearly impossible to enforce.

The ruling provides some possibilities for lower courts to still decide in favor of journalists, under the atypical arrest exception established by the Court.

Under Nieves, there are situations where law enforcement had probable cause to make arrests, but typically exercise their discretion not to do so.

Nevertheless, Clatyton argued, the ruling represents a worrying restriction on press freedom, and it may undermine some recent circuit court decisions recognizing a First Amendment right of citizens to film police and government activities.

Some of the most socially important newsgathering acts in recent years involved citizens recording police violence on cell phones, including the use of force against Eric Garner and Walter Scott, Clayton wrote.

A newsgatherer who seeks to videotape police misconduct, but cannot do so due to an arrest, is irrevocably prevented from capturing a unique set of images that might otherwise be used to hold local officials to account.

To remedy these potential injustices, Clayton maintained that courts must treat a journalists arrest as a prior restraint intended to suppress the media. It can also apply what he called speech-protective remedies to these cases, and clearly define atypical arrests.

By embracing these solutions, courts can ensure that newsgatherers like Tara ONeill who are arrested while fulfilling core First Amendment values will have a legal remedy to vindicate their rights and deter future efforts at state suppression, Clayton concluded.

The forthcoming paper can be accessed here.

This summary was prepared by TCR staff writer Andrea Cipriano

Here is the original post:

'Catch and Release': Cops, Media and the Supreme Court - Crime Report

ALBANY, NY (WSKG) Parts of New York state are gradually reopening, with western New York authorized on Monday to join five other regions of the state and begin the first of a four-phase process. The Capital Region will be allowed to begin reopening on Tuesday.

Gov. Andrew Cuomo also said Monday that churches, synagogues, mosques and other houses of worship are not permitted to reopen, though, until phase 4 is reached. Religious leaders are asking the state for more guidance, and whether if they practiced safe social distancing they could open sooner than that.

Cuomo, at his daily coronavirus briefing, said because many religious services involve large gatherings, they cant safely restart until phase four. Speaking in Buffalo, he compared a large worship event to the crowded sightseeing boats now banned in Niagara Falls.

Its the same thing, its all jammed boats, jammed temples, jammed churches, Cuomo said. The gathering is the issue.

He said the first COVID-19 hot spot in New York stemmed from a religious gathering in New Rochelle.

But it could be several weeks, or even months, in some parts of the state hit hardest by the virus, before phase four of a reopening is reached.

Dennis Poust is with the Catholic Conference, which represents New Yorks Catholic cardinals and bishops. Speaking via Skype, he said houses of worship were never formally closed by the state, and Catholic churches are still open for private prayer or to light a candle.

But he said Catholic leaders decided to curtail public services as the COVID-19 pandemic raged in New York. Now, he says they are thinking of ways to reopen with safe social distancing and other precautions, and believes they can do that sooner than in phase four.

The governor seemed to be saying is to reopen like normal would be a phase four situation, but we have no intention of reopening like normal, said Poust. We are going to have to put strict limits in terms of capacity in every church, and all sorts of restrictions.

The Rev. Jason McGuire, with the Christian lobbying group New Yorkers for Constitutional Freedoms, said evangelical church leaders understand that there is a state of emergency in New York because of the virus. But, he said, state officials should work with religious leaders to find a balance that allows church services to resume.

And thats what this state government has failed to do, McGuire said. Its good at restricting religious liberty, but hasnt done so in the least restrictive means possible.

McGuires group is sending a letter to Cuomo this week, saying the weeks-long shutdown has taken a toll on the evangelical communities. He asked why churches cant open when grocery stores and now garden stores are allowed to reopen and have several dozen people in the building at a time.

He said even the governors daily press briefings often contain as many people, at safe social distances, as a small rural church might see on a typical Sunday.

Im watching these daily press conferences that are coming out of Albany and all across the state, and theres 15 or so different members of the press there, staff people, McGuire said. There is a First Amendment right to free press, but the right to worship in our buildings is now being denied to us.

McGuire has asked if churches could rent out drive-in movie theaters, which have been permitted to reopen, to hold services on Sunday mornings, but has received no answer. He said the worry is that some churches could go ahead and reopen anyway without any guidelines in place.

A reporter asked Cuomo on Sunday about permission to celebrate the orthodox Jewish holiday of Shavuot, which begins on May 28, if it could be done in very small groups. He said he and his team are considering whether to permit smaller religious gatherings and ceremonies for the upcoming Memorial Day holiday on May 25.

I think we can, Cuomo said. Thats what we are talking through.

He said he hopes to announce a decision soon.

Poust said when parishioners do return for Mass, it will be a different experience. Communion can be given, but only in the receivers hand, not by mouth, and the priest will have to sanitize their hands between each person. A communal cup offered as part of the sacrament would have to be curtailed for now. And there wont be any singing.

We dont want to spread germs, and you spread germs by singing, said Poust, who added there will be no choirs and people will be wearing masks, making it difficult to sing.

On Monday, church services in Italy were permitted to resume. Pope Francis reopened St. Peters Basilica and held a private Mass in a side chapel, and some visitors had their temperatures taken when they entered and were told to sit 5 feet apart and wear masks.

Houses of worship can also open in the neighboring state of Massachusetts as of Monday, if they observe strict social distancing guidelines. Outdoor services are encouraged.

View post:

New York Churches Dont Want To Be Among The Last To Reopen - WSKG.org

Even though Wyoming already has numerous liability laws on the books to protect business owners seemingly rendering such an amendment unnecessary members of the Senate saw the amendment as a simple ask. The Wyoming Legislature had already acted on bills in the past to protect the owners of ski resorts in similar instances, for example, and a similar bill on the books could potentially help to dissuade opportunistic attorneys from pursuing frivolous lawsuits against business owners trying to save their businesses while acting in accordance with state and local public health orders. It would increase business confidence, Driskill said, keeping business owners doing their best to follow the law from being punished for simply trying to keep themselves afloat.

For members of the House, even a compromise appeared to be a non-starter. Many believed the legislation could potentially take away ones First Amendment right to petition their government through the courts and felt they were being forced to cave on a flawed bill, where the numerous good parts of the legislation were being held hostage by the bad parts.

Eventually, members of the House negotiating team eventually supported a toned-down version of the amendment drafted by Sen. Tara Nethercott, a Cheyenne attorney who was similarly reluctant to support the deal.

However, when the bill was brought back to the House for final approval late Saturday afternoon, members eviscerated the amendment and the process to introduce it in nearly two hours of debate, casting doubt that the legislation would pass. House Speaker Pro Tempore Albert Sommers, R-Pinedale, said the amendment was potentially unconstitutional, saying that rolling over would be a black mark on the House of Representatives. Rep. Charles Pelkey, D-Laramie, who originally planned on voting for the bill, later announced he would be flipping his vote, calling the business immunity provisions unnerving a feeling shared by several other attorneys in the House. Others expressed anxiety about the possibility of leaving a bad law on the books for the six weeks until the Legislature meets in a second special session later this year. One other Democrat, Rep. Sara Burlingame, D-Cheyenne, also joined Pelkey in opposing the bill, citing similar concerns.

More:

How a question of process almost killed a critical bill to help Wyoming's unemployed workers - Casper Star-Tribune Online

The United States District Court is allowing North Carolina churches to hold indoor services by granting a temporary restraining order on religious gathering restrictions. The plaintiffs filed a complaint, saying Gov. Roy Cooper's Executive Order 138 concerning COVID-19 and worship services of more than 10 people being outdoors "violates the Free Exercise Clause of the First Amendment."Multiple plaintiffs on the court ruling are from the Triad. Berean Baptist Church and its pastor, Dr. Ronnie Baity, are located in Winston-Salem along with Return America.Related: Winston-Salem pastor named in federal suit reacts to temporary lifting of church gathering restrictions Judge James C. Denver III agreed with the plaintiffs, who also stated the limits treated churches differently from other retailers and other secular activities.In the filing, the judge ruled:"There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment. Plaintiffs have demonstrated that they are likely to succeed on the merits of their Free Exercise claim concerning the assembly for religious worship provisions in Executive Order 138, that they will suffer irreparable harm absent a temporary restraining order, that the equities tip in their favor, and that a temporary restraining order is in the public interest. Thus, having considered the entire record and governing law, the court grants plaintiffs' motion for a temporary restraining order." Related: Triad churches begin drive-in services during phase 1 of reopeningNorth Carolina Speaker Tim Moore tweeted, saying the ruling "recognizes 1st Amendment rights deserve more protection, not less." North Carolina Gov. Roy Cooper's spokesperson responded with a statement:"We don't want indoor meetings to become hot spots for the virus and our health experts continue to warn that large groups sitting together inside for long periods of time are much more likely to cause the spread of COVID-19. While our office disagrees with the decision, we will not appeal, but instead urge houses of worship and their leaders to voluntarily follow public health guidance to keep their members safe." "This court does not doubt that the Governor is acting in good faith to lessen the spread of COVID-19 and to protect North Carolinians," the ruling noted. "'But restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.'" The full court ruling can be read here.

The United States District Court is allowing North Carolina churches to hold indoor services by granting a temporary restraining order on religious gathering restrictions.

The plaintiffs filed a complaint, saying Gov. Roy Cooper's Executive Order 138 concerning COVID-19 and worship services of more than 10 people being outdoors "violates the Free Exercise Clause of the First Amendment."

Multiple plaintiffs on the court ruling are from the Triad. Berean Baptist Church and its pastor, Dr. Ronnie Baity, are located in Winston-Salem along with Return America.

Related: Winston-Salem pastor named in federal suit reacts to temporary lifting of church gathering restrictions

Judge James C. Denver III agreed with the plaintiffs, who also stated the limits treated churches differently from other retailers and other secular activities.

In the filing, the judge ruled:

"There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment. Plaintiffs have demonstrated that they are likely to succeed on the merits of their Free Exercise claim concerning the assembly for religious worship provisions in Executive Order 138, that they will suffer irreparable harm absent a temporary restraining order, that the equities tip in their favor, and that a temporary restraining order is in the public interest. Thus, having considered the entire record and governing law, the court grants plaintiffs' motion for a temporary restraining order."

Related: Triad churches begin drive-in services during phase 1 of reopening

North Carolina Speaker Tim Moore tweeted, saying the ruling "recognizes 1st Amendment rights deserve more protection, not less."

North Carolina Gov. Roy Cooper's spokesperson responded with a statement:

"We don't want indoor meetings to become hot spots for the virus and our health experts continue to warn that large groups sitting together inside for long periods of time are much more likely to cause the spread of COVID-19. While our office disagrees with the decision, we will not appeal, but instead urge houses of worship and their leaders to voluntarily follow public health guidance to keep their members safe."

"This court does not doubt that the Governor is acting in good faith to lessen the spread of COVID-19 and to protect North Carolinians," the ruling noted. "'But restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.'"

The full court ruling can be read here.

Read the rest here:

North Carolina churches allowed to have indoor services, win restraining order against religious restrictions - WXII12 Winston-Salem

Mark Klaassen

By Mark Klaassen

Over the past two months, the nation has engaged in unprecedented shutdowns in an effort to contain the outbreak of COVID-19. After many weeks of economically crippling restrictions and stay-at-home orders, citizens are beginning to question the justification for these measures and whether continued enforcement unreasonably infringes on important constitutional rights and liberties. These concerns are becoming more acute now that we have a better understanding of the impact on our medical system and the economy across the nation and here in Wyoming.

There is no question that states have broad authority to exercise their police power to implement emergency public health orders to protect against an epidemic of disease. Wyoming Gov. Mark Gordon used that authority, as set forth by state statute, to restrict the size of gatherings and close various facilities and businesses, explaining that the restrictions are necessary to protect those at high risk from COVID-19 and to avoid exceeding the capacity of the health care system.

The legal framework for evaluating the constitutionality of these measures is highly deferential to the state. The Supreme Court has ruled that when faced with an epidemic, a state may implement emergency measures that limit constitutional rights so long as they have at least some real or substantial relation to the public health emergency and are not beyond all question, a plain, palpable invasion of rights secured by the fundamental law. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 31 (1905). In evaluating these actions, the federal government and the federal courts may consider whether the measures are arbitrary or oppressive, but may not second guess state and local leaders who enact restrictions based upon the advice of public health experts.

While the legal inquiry is deferential, the power of the state is not unlimited. If the public health authority is exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or goes so far beyond what was reasonably required for the safety of the public, the courts may be compelled to interfere for the protection of such persons. Jacobson, 197 U.S. at 28.

U.S. Attorney General William Barr has recently issued a memorandum directing the Department of Justice to monitor state orders across the country to ensure they do not unduly infringe on constitutional rights and civil liberties of individual citizens, such as the free exercise of religion and freedom of speech. Consistent with that direction, the department has filed statements of interest in support of private litigants in two cases one in Mississippi and the other in Virginia that involve potential infringement of First Amendment religious free exercise rights. The state health orders at issue in these cases appeared to subject religious organizations to less favorable treatment than similarly situated organizations, implicating a heightened level of constitutional scrutiny.

Although we are actively monitoring for potential constitutional violations, including here in Wyoming, the department is being cautious not to unduly interfere or second-guess the judgment of the various states when it comes to public health. We recognize the legitimate role for the states in responding to the challenges posed by COVID-19. However, federal deference does not prevent private citizens from expressing their views or from pursuing individual legal actions for redress, as they deem necessary.

Precisely where the line exists between a valid exercise of emergency public health authority and one that is arbitrary or unreasonably infringes on individual rights is not always clear. Context matters, and courts will determine these questions based on the facts and circumstances of individual cases. Without bright lines to guide us, we rely on the wisdom and restraint of our elected leaders to carefully evaluate and make decisions based not just on the best available public health guidance, but also the economic, social, moral and constitutional implications of their actions.

The current pandemic is truly an unprecedented test of our ability to balance public health with the need to preserve constitutional rights and economic livelihood. These are difficult decisions to make, and require our leaders to confront hard truths about the limits of our ability to reasonably mitigate COVID-19 risks while still functioning as a free and prosperous society.

My hope is we continue to show signs of improvement and are able to proceed through the phases of re-opening proposed by Gov. Gordon. In the meantime, my office will monitor the situation in coordination with our state counterparts to ensure that rights under the Constitution are not unduly infringed.

Here in Wyoming, we pride ourselves in our rugged individualism and determination. We face challenges with common sense and a willingness to do what needs to be done. Let us hope our response to this virus is no exception.

(Mark Klaassen is United States Attorney for the District of Wyoming. He is based in Cheyenne.)

Continued here:

State coronavirus shutdowns and the Constitution - Powell Tribune

Last Thursday, Justice Clarence Thomas suggested that a major First Amendment doctrine should be abandoned, and that the right to free speech be significantly shrunk in the process. Its the second time hes done so in a little over a year, and at least the third time Thomas has called for a major slice of Americans free speech rights to be cut away.

His latest call to reduce free speech rights came in United States v. Sineneng-Smith, a case involving an immigration lawyer who fraudulently charged her clients a total of $3.3 million to file for a change in their immigration status that she knew they were ineligible to receive. The Court ruled unanimously, and on narrow procedural grounds, to toss out a ruling benefiting this immigration lawyer.

Though Thomas joined Justice Ruth Bader Ginsburgs unanimous opinion, he also wrote a separate opinion joined by no other justice. In it, he calls for the Court to reconsider its overbreadth doctrine, a First Amendment doctrine that allows courts to cast an especially skeptical eye on laws that restrict free speech. In doing so, Thomas admitted that he is now calling for the Court to reconsider a doctrine that hes supported in the past.

As a general rule, courts are reluctant to accept facial challenges to an allegedly unconstitutional law challenges that seek to invalidate the law in all of its applications rather than simply holding that the court will not apply that particular law to a particular plaintiff. The overbreadth doctrine makes it easier to bring a facial challenge under the First Amendment, and thus provides heightened protection against laws that burden free speech. Thomass opinion would permit many laws that burden free speech to remain on the books, even after a court determines that they would chill a significant amount of free expression.

Its not the first time Thomas has articulated a narrow vision of the First Amendment. In 2019, he attacked his Courts decision in New York Times v. Sullivan (1964), one of the Supreme Courts foundational First Amendment decisions, which protects journalists against malicious libel suits that could stifle a free press.

Likewise, in Brown v. Entertainment Merchants Association (2011), Thomas suggested that children and teenagers have no First Amendment rights whatsoever. The practices and beliefs of the founding generation establish that the freedom of speech, he wrote in his Brown dissent, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors parents or guardians. No other justice joined Thomass opinion in Brown.

These are serious attacks on the right to free speech. Thomass Brown opinion alone, if it were embraced by a majority of his Court, would strip free speech rights from nearly 74 million individuals.

So its striking that there is one other case where Thomas took a very expansive view of the First Amendment. In Citizens United v. Federal Election Commission (2010), the Supreme Court held that the right to free speech includes the right of corporations to spend unlimited money on influencing elections. In a partial dissenting opinion, Thomas complained that Citizens United does not go far enough.

Justice Thomas, in other words, envisions a much weaker First Amendment for children, journalists, and, indeed, for much of the country. But when wealthy donors seek relief from campaign finance restrictions, Thomas takes a maximalist view of their First Amendment rights.

Thomass opinion in Sineneng-Smith involves a fairly technical doctrine, but its worth taking a moment to understand that doctrine, and Thomass critique of it, because that critique is at odds with the view Thomas takes in Citizens United.

As a general rule, federal courts hear two types of constitutional challenges claiming that a federal or state law violates the Constitution. Facial challenges seek to invalidate a specific legal provision in its entirety. If a plaintiff prevails in such a challenge, then the legal provision they challenged ceases to operate altogether.

By contrast, when a court declares that a law is invalid as applied to a particular plaintiff, that means the law cannot be applied in the specific circumstances that arose in that particular case. But there may still be other circumstances where the law can constitutionally be applied to other individuals.

Ordinarily, courts are reluctant to declare a law invalid on its face. As the Supreme Court explained in United States v. Salerno (1987), a facial challenge to a legislative Act is ... the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.

Think of it this way. Suppose a state passes a law providing that bail for all persons charged with theft shall be at least $100,000. Now suppose that two different criminal defendants challenge this law under the Eighth Amendment, which prohibits excessive bail.

The first defendant is a teenager charged with shoplifting a pack of gum from a convenience store. The second is a notorious art thief, with multiple aliases and connections across the globe, who is charged with stealing tens of millions of dollars worth of famous paintings. In these circumstances, a $100,000 bail would clearly be excessive for the first defendant. But, if anything, its probably too low for the second defendant.

Because there are at least some sets of circumstances where a $100,000 bail would be appropriate for a criminal defendant charged with theft, no one could bring a facial challenge to the state law setting this minimum bail amount. But the shoplifiting defendant could bring an as-applied challenge claiming that, as applied to their rather insignificant offense, a bail of $100,000 is excessive.

And that brings us to the overbreadth doctrine. That doctrine provides that Salernos high bar for facial challenges does not apply to First Amendment lawsuits. Rather, as the Supreme Court explained in United States v. Stevens (2010), a law that burdens free speech may sometimes be facially invalidated if a substantial number of its applications are unconstitutional.

The reason for this overbreadth doctrine is that the Court believes free speech rights to be particularly fragile. If courts allow statutes that ban some forms of speech to stand, the mere existence of those laws could frighten individuals away from exercising their First Amendment rights. As the Court explained in Broadrick v. Oklahoma (1973), the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.

Nevertheless, Thomas raises a number of objections to this overbreadth doctrine in his Sineneng-Smith opinion. He claims it is untethered from the text and history of the First Amendment, and that, rather than being rooted in the way the First Amendment was originally understood, the overbreath doctrine first emerged in the mid-20th century.

One of Thomass primary objections to the doctrine is that he believes the Salerno standard should apply universally indeed, Thomas criticizes the very idea that anyone could bring a facial challenge against any law. Our modern practice of strik[ing] down legislation as facially unconstitutional bears little resemblance to the practices of 18th and 19th century courts, according to Thomas.

Fair enough. Read in isolation, the new viewpoint that Thomas announced in Sineneng-Smith could be seen as a call for judicial restraint an assertion that courts should be more cautious before they toss out an act of a legislature altogether.

But in Citizens United, Thomas sang a very different tune.

The thrust of Thomass opinion in Citizens United, the landmark Supreme Court decision that gutted much of Americas campaign finance laws, is that as-applied challenges are insufficient to protect donors whose political spending is disclosed to the public, and that the Supreme Court should have declared a federal campaign finance disclosure law facially invalid.

The bulk of Thomass partial dissent in Citizens United tells horror stories about conservative donors whose donations became public, and who then suffered social or financial consequences. Thomas alleges that a handful of donors to a campaign opposing marriage equality received threats, and he claims that the director of a musical theater company who donated to this campaign was forced to resign after artists complained to his employer. Thomas also claims that a restaurant manager who donated to this anti-LGBTQ campaign was forced to resign after protesters targeted the restaurant.

A majority of the Court concluded that these incidents were insufficient reason to strike down disclosure laws on their face although the Citizens United majority added that as-applied challenges would be available if a group could show a reasonable probability that disclosure of its contributors names will subject them to threats, harassment, or reprisals from either Government officials or private parties.

Thomas, however, rejected this conclusion. The Courts promise that as-applied challenges will adequately protect speech is a hollow assurance, he wrote, adding that the advent of the Internet enables prompt disclosure of expenditures, which provide[s] political opponents with the information needed to intimidate and retaliate against their foes.

In Thomass view, disclosure laws must be struck down on their face, in order to prevent campaign donors from facing harassment.

Whatever the merits of this position which was rejected by all eight of Thomass colleagues in Citizens United it is difficult to reconcile the position Thomas took on disclosure laws in Citizens United with the broad concerns with our modern practice of strik[ing] down legislation as facially unconstitutional that he announced in Sineneng-Smith.

In fairness, Thomas does concede in his Sineneng-Smith opinion that he has previously joined the Court in applying the overbreadth doctrine. So his current opposition to First Amendment facial challenges appears to be a recent development. Perhaps, when Thomas hears another campaign finance case, he will rebuke his own analysis in Citizens United and admit that it is inconsistent with the views he expressed in Sineneng-Smith.

But, at the very least, it is enough to point out that Thomas took a maximalist approach to the First Amendment in Citizens United, and then took such a radically different approach in a more recent opinion.

A common thread running through Thomass First Amendment decisions indeed, a thread that runs through Thomass decisions on many topics is his belief that the Court has departed from the way the Constitution was understood by the generation that framed it. His primary complaint in Sineneng-Smith is that the overbreadth doctrine is untethered from the text and history of the First Amendment. Similarly, in McKee v. Cosby (2019), Thomas argues that a venerable Supreme Court decision protecting journalists from malicious libel suits was wrong because it did not apply the First Amendment as it was understood by the people who ratified it.

One overarching problem with Thomass project of trying to interpret that First Amendment as it was originally understood by the framing generation is that it is far from clear that such a thing is possible. And, if it is possible, there is considerable evidence that the framers understanding of the amendment was so narrow that modern-day Americans would find it unacceptable.

Under the English common law, which informed much of the founding generations understanding of early American law, the freedom of speech and of the press was largely understood as a right not to have the government stop an individual from publishing a particular statement. But once that statement became public, the individual who made it could still face legal consequences for their speech.

Early Supreme Court decisions interpreting the First Amendment accepted this limited view of free speech. As the Supreme Court concluded in Patterson v. Colorado (1907), the main purpose of the First Amendments guarantee of free speech and a free press is to prevent all such previous restraints upon publications as had been practiced by other governments, and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.

Of course, modern Supreme Court decisions reject this narrow view of the First Amendment, but they did not do so because modern-day justices developed a better understanding of how the framers understood the freedom of speech. Many First Amendment scholars have concluded that the task of figuring out that amendments original meaning is impossible. As Judge Robert Bork, the failed Supreme Court nominee and godfather of the conservative originalist movement, wrote in 1971, the framers seem to have had no coherent theory of free speech and appear not to have been overly concerned with the subject.

Yet while there is little clarity regarding the original understanding of the First Amendment, the framing generation does appear to have had very robust ideas about the legal rights of corporations. And these ideas are hard to square with the expansive vision of corporate rights that the Supreme Court, with Thomass enthusiastic support, embraced in Citizens United.

In a 2016 law review article, former Delaware Chief Justice Leo Strine and his former law clerk Nicholas Walter explain that there were no business corporations operating under so called general corporation statutes in the early United States. Rather, corporations were created by the government, and given detailed charters that their managers were obligated to follow with fidelity.

As the Supreme Court held in Dartmouth College v. Woodward (1819), a corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it either expressly or as incidental to its very existence.

For this reason, Strine and Walter conclude, Citizens United is out of step with the original understanding of the First Amendment, not because it reads the amendment itself too expansively, but because the framers would not have understood the modern Supreme Courts conclusion that a corporation possesses constitutional rights.

Thomas claims to root his opinions in the original understanding of the First Amendment, but its far from clear that the framing generation had a coherent understanding of that amendment. And in the one area where Thomas takes an unusually expansive approach to the First Amendment campaign finance there is considerable evidence that early Americans rejected Thomass understanding of corporate rights.

Support Voxs explanatory journalism

Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives. Our mission has never been more vital than it is in this moment: to empower you through understanding. Voxs work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources particularly during a pandemic and an economic downturn. Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires. Please consider making a contribution to Vox today.

Original post:

Supreme Court: Clarence Thomas calls for shrinking the First Amendment - Vox.com

Social and traditional media has been buzzing with reports that healthcare providers from nurses to physicians are being discharged because they have publicly shared negative frontline experiences treating COVID-19 patients. After her sixth consecutive shift, one nurse spoke to the media about the inadequacy of the personal protective equipment (PPE) her employer issued her. An employed physicians off-the-clock Facebook post blasting her employers unsafe working environment went viral. Both were purportedly discharged as a result of their speech.

Whether these reports are #fakenews, we do not know. But, one thing is true -- employees who discuss the terms and conditions of their workplace may very well be protected under either the First Amendment of the United States Constitution or the National Labor Relations Act (NLRA). What does this mean for your healthcare organization?

Hey, Its A Free Country!

Everyone is familiar with the First Amendment, but many incorrectly believe that it applies to the everyday private workplace. To be sure, the First Amendments free speech protections are not triggered unless the government attempts to interfere with the right to speech. As a result, the First Amendment only affords employees with employment-related free speech rights where they work for a public employer.

For an employees speech to be protected in the employment context, it must involve a matter of public concern, and the employees interest in commenting on it must outweigh the employers interest in promoting efficiency in the workplace. To determine whether the speech addresses a matter of public concern, you need to analyze the content, form, and context of the statement. Courts have regularly held that, in order to be afforded First Amendment protection, employees must be speaking as a citizen (i.e., on their own time), rather than as an employee. Thus, when an employee speaks in an employment capacity, the speech typically falls outside the protection of the First Amendment.

The employees interest in communicating a matter of public concern must then be balanced against the employers desire to have a working environment free of unnecessary disruption. The more important the employees interest, the more disruption the employer would have to demonstrate. Even though First Amendment rights are integral to our democracy, courts have held that employers have significant latitude when making decisions that relate to efficiency.

What about the nurse and physician at the top of this article? Since both spoke out on their own time, and on a matter of public concern the quality of care in the midst of a pandemic that is overwhelming countless hospitals their speech is likely protected. Unless, of course, their employers can demonstrate that the speech was unnecessarily disruptive, which may be a difficult showing given the current state of affairs. If the employers cannot make that showing, then terminating those employees as a result of their speech could result in significant liability under 42 U.S.C. 1983.

Ill Say What I Want!

What about employees working for private employers? They have protections, too just not via the First Amendment. Typically, employees who appeal to the media or members of the public (e.g., Facebook posts) concerning their wages, hours, or the terms and conditions of employment are engaged in protected activity under the NLRA, regardless if they are members of a union. If employers make adverse employment decisions based on that protected activity, the employee (or a union representative, if the company is unionized) can file an unfair labor practice charge against them.

Although this is not a one-size-fits-all legal issue, and each case requires an individual analysis), if employees publicly voice concerns about the challenges faced when treating COVID-19 patients such as being instructed to reuse certain PPE and unsafe working conditions they are likely engaged in protected activity. Thus, their conduct would be protected under the NLRA, so long as their statements do not purport to speak on behalf of the employer or make maliciously false statements about the employer.

Think Before You Speak (About Termination)

The impact of COVID-19 has been felt across all industries, but, at least arguably, no industry has felt it as acutely as healthcare. As the number of confirmed cases continues to increase, so do tensions. And, understandably so. Healthcare employers should be mindful, however, that employees public discussions about the challenges they are experiencing could be protected under the First Amendment or NLRA. Not to mention, even when employees have no First Amendment or NLRA rights, they may nevertheless be protected as whistleblowers or relators, or under another federal law (e.g., Title VII of the Civil Rights Act of 1964).

These protections do not mean employers should do nothing in the face of such conduct. Instead, you should consider communicating with your employees concerning operations and efforts to keep them safe during the ongoing national crisis. You should also consider implementing a strategy in place to respond to media inquiries or stories that may circulate on social media. At a minimum, you should exercise caution when making adverse employment decisions that are the direct result of an employees speech, and make sure to get in touch with your legal counsel.

View post:

Frontline Reports From Healthcare Employees On COVID-19 Challenges May Constitute Protected Activity - Lexology

This photo entry by Caitlin Walker won Best Feature Photograph in the Better Newspaper Contest for 2019, sponsored by the Colorado Newspaper Association. Listen to this

The Rio Blanco Herald Times has earned 10 awards in the Colorado Press Associations annual Better Newspaper Contest for 2019. The contest includes entries from news organizations statewide and is judged by members of a different states press association. Entries are divided into classes based on circulation. The HT is in Class 2.

Co-owner Caitlin Walker earned first place awards forBest Feature Photograph, Best Automotive Ad, Best News Media/House Ad Promotion, and second-place awards for Best News Media/House Ad Promotion, Best Small Space Ad, Best Informational Graphic.

Walker and her brother Lucas Turner, news director at KDNK radio in Carbondale, won first place for Best Editorial Multimedia for their piece on Henry and Kris Arcolesse of Ma Famiglias, and Walker and co-owner and editor Niki Turner took second place in the same category for a feature on Claude and Peg Woods Mountain Honey operation.

Tiffany Jehorek earned the second-place award for Best Sports Photograph.

Niki Turner also took second place in Best Serious Column Writing.

The Northwest Colorado Hunting Guide received first place for Best Editorial Special Section Glossy, and the Adventure Colorado magazine earned second place in the same category.

In addition, the HT is the recipient of the 2019 Service to the First award, considered one of the most prestigious journalism awards in the state.

Turners collaborative work with Colorado Independent editor Susan Greene covering the story of the December 2018 officer-involved shooting of Daniel Pierce prompted the judge to comment, What amazing coverage. Investigating and telling the story of the officer-involved shooting is exactly the type of work that other media outlets do not do, but local newspapers do which means so much to the community.

The Service to the First award is intended to honor a news organizations or persons service to the First Amendments guarantee of a free press, including, but not limited to, fighting the threat of censorship in America, overcoming uneasiness with regard to press credibility, combating government secrecy at all levels, and instilling in the public an appreciation of its need as well as its right to know, according to the Colorado Press Association.

Greene received the award in 2018 for a First Amendment fight to unseal documents that went all the way to the U.S. Supreme Court.

This years convention was supposed to be held in Glenwood Springs, for the first time in the organizations 100-plus year history, but was canceled due to COVID-19 concerns.

By HT Staff

Read more here:

HT takes home 10 awards, 'Service to the First' honor in statewide competition - Rio Blanco Herald Times

Utah Gov. Gary Herbert is punting to Davis County the question of what enforcement action, if any, should be taken against Republican Kaysville Mayor Katie Witt who is also a congressional candidate in the 1st District for openly defying his COVID-19 orders.

She is allowing a protest group to hold an outdoor concert by country music star Collin Raye on May 30 in a city park. She acknowledges it would violate new orders that limit gatherings there to 50 people but says it protects First Amendment rights and would help the state return to normal. Her opponents have called it political grandstanding that may threaten lives.

On Friday, Herbert spokeswoman Anna Lehnardt said it is not the role of the governor nor the state to take any action against the Kaysville concert.

Enforcement of state health orders is carried out by local health departments, she said. In this instance, the Davis County Health Department has the responsibility to ensure this event and similar public gatherings hosted in the county are conducted in accordance with state orders.

Brian Hatch, director of the Davis County Health Department, said officials in his department have not yet discussed what to do about the planned concert.

Enforcement is a tricky thing to even talk about at the moment, he said.

This is just a concerning and somewhat of a difficult situation of balancing policy with how far we enforce policy when primarily what weve always tried to do is educate, Hatch said.

He added that most communities across the state have done fabulous at doing the right thing. Theres always been these individual little things that just kind of pop up and they are small enough in the bigger picture not to make a huge issue of it because the majority of our citizens, our communities are doing the right thing anyway.

Hatch said violating the governors orders could bring criminal and/or civil penalties, but may not be that big for a one-time event.

Witt on Thursday defended her action, saying, We have to start making steps toward normalcy. Yes, it violates the directive of the governor. Its a protest, and we are allowing them the space to do that. Im willing to be uncomfortable to stand up for our First Amendment rights.

She also said organizers are asking people who attend to wear masks and use social distancing, so she believes it will be safe and plans to attend.

Witt is in a four-way race for the GOP nomination in the race to replace retiring nine-term Rep. Rob Bishop. Others are Davis County Commissioner Bob Stevenson, businessman Blake Moore and former state commissioner of agriculture and food and ex-Weber County Commissioner Kerry Gibson.

They all criticized her move earlier as likely political grandstanding. Stevenson, for example, said, it is a political maneuver. I think thats sad. This COVID-19 situation is not a political situation that we play games with. Peoples lives, peoples families could be impacted.

The group sponsoring the concert at Barnes Park, Utah Business Revival, earlier issued a news release saying it will be one of the first in America amid COVID-19 restrictions.

It quoted Raye who has 16 No. 1 country hits saying, I would be honored to come to Kaysville for the first live concert in America. Music is an extremely powerful tool to help heal our souls, especially in times of uncertainty.

Eric Moutsos of Utah Business Revival said his group also recently organized an open-air market in Vineyard. He said, If we can all stand in line waiting for toilet paper, we can certainly all shop safely in an open-air market and enjoy a country music legend, Collin Raye.

The event will also have booths from nonessential businesses to interact with the public and sell goods.

These businesses were previously considered nonessential, insofar as some were not on the list of those the government approved to be open during COVID-19, Moutsos said. At UBR, we believe all business is essential. It is a fundamental right all American citizens share to gather, work and safely interact, even in times of crisis.

More:

Utah governor says it's the role of the county not the state to enforce COVID-19 orders - Salt Lake Tribune

The Kill Devil Hills Board of Commissioners met on May 11 via Zoom to discuss four zoning amendments and a modification to the approval process for commercial uses.

Due to the nature of electronic meetings, the board was unable to take action on any of the items presented in public hearing. The public was able to partake in the hearings through a chat box and email; comments sent in within 24 hours after the meeting were included in the record.

Meredith Guns and Cameron Ray with the planning department were present during the meeting to run through the highlights of each amendment/modification.

Guns addressed the first amendment, which would require properties that have 11 bedrooms or more to have a parking setback of 7 feet from the property line. Larger homes that have 11 bedrooms or more that choose to have a clearly marked access aisle stating no parking (following design requirements) will be permitted to have a parking setback of 5 feet.

Ray took the lead in detailing the other three amendments.

One would require an additional two feet of side yard setback for single family/duplex dwellings that exceed 6,000 sq. ft. For such dwellings that have a fire suppression system installed and inspected annually by the fire chief, Ray said they shall be exempt from this provision.

Another amendment modifies landscaping requirements for single-family/duplex dwellings greater than 6,000 sq. ft. Such homes would need a vegetative buffer or fence with ornamental landscaping on property lines and adjoining rights-of-way when abutting non-compatible uses, such as single-family homes less than 6,000 sq. ft.

As for cottage courts and cluster homes, the proposed amendment modifies the minimum lot width of these properties from 100 ft. to 75 ft. for those abutting NC 12. Ray said the goal was to incentivize that type of development as opposed to larger structures.

Guns made note that the aforementioned amendments would only apply to new and substantial development submitted after board approval of the items. If they have submitted for approval already, they will not be subject to these new rules, she reported.

The last modification up for debate was a change to the approval process for commercial uses. Guns explained that staff has proposed that commercial site plan reviews be done on an administrative level, assuming that all aspects of the plans meet zoning ordinances.

For plans that are either seeking opinions of the board or are not in compliance will all ordinances, they will be subject to both Planning Board and commissioner approval.

Guns said this method would cut the approval process from about four months to as little as six weeks. Submittals will be cut in half, saving time and money. Were streamlining the process tremendously, she explained.

After little discussion from the commissioners regarding each item, the floor was opened to public comment. Beth OLeary and Martha Vaughn had submitted a letter to be read into the record.

They commented on the positive steps the town had begun to take with large dwellings, but felt the items do little to address the larger issue at hand.

Maybe the future of redevelopment should be more affordable rentals with less of a carbon footprint, their letter read.

With no other takers for commentary, the board closed the discussion and agreed to revisit each item for action at their next meeting.

The board then approved a rate increase on residential curbside recycling, which is now $12.75 per cart per month.

Mayor Ben Sproul had a few items on his agenda, but one in particular dealt with the struggles that restaurants have and are going to be facing.

Sproul publicly spoke on discussions he has been having to allow restaurants to use up to 25% of their designated parking for outdoor dining. He addressed the ordinance restrictions on outdoor dining and said to expect to see more on that in the following days.

This is one of few things we can do as a town to help in a tough situation, Sproul added.

For more information on agendas, meeting schedules and more, visit the town website at http://www.kdhnc.com.

READ ABOUT MORE NEWS HERE.

RECENT HEADLINES:

Gallop appointed Manteo town attorney

Secretary of the Interior David L. Bernhardt visits Outer Banks

See more here:

Large dwellings main topic of discussion at Kill Devil Hills meeting - The Coastland Times - The Coastland Times

By Trevor Dunnell, For The Daily News

ThursdayMay14,2020at2:28PM

As law enforcement agencies around the state express their stance of not interfering with the church services, the Onslow County Sheriffs Office reminded their residents they will do the same.

Sheriff Hans Miller held a press conference on Tuesday explaining the departments stand on first amendment rights for residents in Onslow. It has not changed since the beginning of the stay-at-home order.

We have received calls from local church pastors about worship services and our answer was very clear from the beginning, we support the first amendment right to worship, said Miller. We support people's right to worship.

Miller added Gov. Roy Coopers guidance for church services during Phase One of reopening the state is that church services should take place outside unless it is impossible to do so.

_____________________

Editors note: This coverage is being provided for free as part of our coronavirus coverage. Please consider supporting local journalism by purchasing a digital subscription to The Daily News. Our rates start as low as $1 a month.

_________________

On Monday, Cooper clarified the Phase One order does not prohibit multiple events from happening, in order to meet social distancing requirements of 10 or less people gathering inside.

According to Miller, deputies will not interfere with churches or limit how many people are allowed inside for worship.

What we suggest is as long as you maintain social distancing, it is perfectly fine to do so whether it is inside or outside, added Miller. If you are a family that lives together, then thats okay for you to to sit together.

Miller explained the main objective during reopening is to ensure everyone is being safe.

If you have people that want to congregate to worship or shop, as one human being to another I would say continue social distancing and advise people to wear any type of mask that can cover up how the virus can spread, added Miller.

Continue reading here:

Onslow Sheriffs department will not interfere with indoor church services - Jacksonville Daily News

For 20 years, shes been standing up for you. For 20 years, shes been fighting for you Recently, somethings changed. The one thing thats changed is your superintendent. Over the last year and a half hes bullied her and hes bullied you.

Larry Purtill, President of the the National Education Association Rhode Island (NEARI) was standing in the bed of a pickup truck with a megaphone, his Boston Red Sox mask pulled down. He was addressing the drivers of the over 100 cars that had gathered in the parking lot of the Portsmouth Middle School to begin a car rally in support of NEA Tiverton President Amy Mullen, who the union claims was recently and illegally fired from her job as a special education teacher, a job shes had for 25 years The union claims Mullen was fired due to her union advocacy, not because of any deficiencies in her teaching.

Were doing it in Portsmouth today because were doing this for Amy, your local president! said Purtill. For 20 years, shes been standing up for you. For 20 years, shes been fighting for you Recently, somethings changed. The one thing thats changed is your superintendent. Over the last year and a half hes bullied her and hes bullied you.

Superintendent Peter Sanchioni, through Stephen Robinson, a lawyer for the Tiverton School District, says that Mullen was terminated from her job, due solely to the latest in a series of incidents where she has engaged in unprofessional and disruptive behavior. Rather than collaborate as a role model and problem solver during a time of pandemic she has chosen to continue her pattern of being divisive and obstructive.

Purtill ascribes darker motives to Sanchioni, claiming that teachers were bullied by the Superintendent when he served in a similar capacity in Natick, Connecticut. He likes to bully people who stand up to him, said Purtill. And he likes to say, Hey, change your view, change your opinion, or well fire you The other thing [about the people Sanchioni allegedly bullied] is they all seem to be women! He seems to have a problem with strong women who stand up to him.

In a press statement, NEARI writes, in part:

Funding for our reporting relies entirely on the generosity of readers like you. Our independence is how we are able to write stories that hold RI state and local government officials accountable. All of our stories are free and available to everyone right here at UpriseRI.com. But your support is essential to keeping Steve on the beat, covering the costs of reporting many stories in a single day. If you are able to, please support Uprise RI. Every contribution, big or small is so valuable to us. You provide the motivation and financial support to keep doing what we do. Thank you.

Opens in a new tab - you won't lose you place

when [Mullen] learned Superintendent Sanchioni was moving forward with a distance-learning plan without input from teachers, she asked if they could discuss the plan.

Amy offered no hardline union negotiations. No hold up of distance learning. She asked a question. And she was terminated for it.

Instead of working collaboratively within the framework of the collective bargaining agreement which the Superintendent has failed to do on multiple occasions Sanchioni and the Tiverton School Committee chose to silence Amy and prohibit her from speaking to her members, parents and students. In so doing, they violated her First Amendment rights and opened themselves up to personal liability in addition to their official capacity.

Peter Sanchioni, aided and abetted by the Tiverton School Committee, is a bully and long ago proved himself a union obstructionist in his negotiation tactics and refusal to bargain or allow Amy to attend to her duties. They have demonstrated a clear disdain for the union and union activities and have set out repeatedly and with animus to diminish a local union president just dig through the grievances and unfair labor practices that have piled up since Sanchioni has been in town.

In fact, First Amendment violations are nothing new for Peter Sanchioni they cost the Town of Natick, MA $70,000.

Amy was not fired for any reason having to do with her job performance as a teacher. I have no doubt Amy will prevail in her suit and she has the full support of the entire labor movement across the State of Rhode Island.

The cars left the Portsmouth Middle School and drove by Mullens home in Portsmouth as a gesture of support. More information can be found at BringBackAmy.org.

More:

NEARI holds car rally, lauches website in defense of fired NEA Tiverton President - Uprise RI

TOMS RIVER The owner of several businesses and three high school seniors have filed a lawsuit against Gov. Phil Murphy claiming the 38 executive orders issued in connection with the COVID-19 pandemicare unconstitutional and illegal.

Murphy's orders have been been with a growing grumbling of criticism from Republican lawmakers in recent weeks but until now they have faced few legal challenges.

Gun shops and gun ranges have sued to ask the federal courts to consider their businesses "essential" under the Second Amendment, while an Essex County priest and an Ocean County rabbi have sued in federal court claiming First Amendment protections for in-person religious gatherings, which are not allowed during the emergency.

In the latest lawsuit filed Thursday in SuperiorCourt in Toms River,the owner of Car Wash and Beyond, Razberri Hair & Nail Design and Perfect Swing Golf all non-essential businesses that were ordered to close in March andToms River High School East students Gina DiPasquale, Isabella Ghanbary and Arianna Wilenta who want to have an in-person graduation ceremony argue that the executive orders discriminate against non-essential businesses and violate the right to assembly.

The lawsuit, which names as defendants Murphy,State Police Superintendent Patrick Callahan, Education Commissioner Lamont Repollet and his assistant Adbulsaleem Hasan, also outlines steps that school districts could take to safely hold a graduation ceremony.

Murphy's sweeping pandemic ordershave ranged from prohibiting gatherings of more than 10 people, to prohibiting evictions, to closing golf courses and state and county parks in an effort to slow the spread of the coronavirus, which has killed more than 10,000 residents in two months.

More recent orders have loosened some restrictions to allow, for example, non-essential businesses to conduct curbside transactions. Murphy also said that all Jersey Shore beaches should open by Memorial Day and on Friday announced that elective surgeries would begin May 26.

Murphy has said that the restrictions would be lifted as soon as public health officials say it is safe to do so. Hospitalizations have been declining since April 15.

"Gosh, golly, why can't you flip the switch and open the whole place up?" he asked rhetorically on Friday, then pointing to the 285 people who had been admitted to state hospitals the day before with COVID-19. At the same time, however, hospitals on Thursday discharged 357 patients that had battled COVID-19. More than 3,800 patients remain hospitalized for serious complications from the virus.

Executive Order 102, issued on Feb. 3, established the administration's coronavirus task force. The next orderdeclared a state of emergency and a public health emergency, which Murphy has renewed twice.

Michael J. Deem, attorney with the Toms River firm R.C. Shea & Associates, said the Legislature has given the governor the ability to declare a public health emergency only after conferring with both the state health commissioner and the state director of emergency management.

The lawsuit argues that the first executive order does not state that Murphy consulted with the director of emergency management.

"It's our contention that from the very beginning executive order 103 all the way to the present order are all void," Deem said.

Both Callahan and Health Commissioner Judith Persichilli have attended every news briefing with Murphy for the past two months. But Deem said the emergency declaration was still improper.

"Look at it like an infection. If one order is infected it will spread to others that rely upon the first infected order," he said. "We contend that by way of Executive Order 103, the governor improperly declared a public health emergency, thereby effacing the remaining orders that rely upon 103 for its existence."

The lawsuit also notes the Wisconsin Supreme Court's 4-3 vote decision on Wednesday striking down Gov. Tony Evers' stay-at-home restrictions, ruling that his administration overstepped its authority when it extended them for another month without consulting legislators.

The lawsuit contends that the executive orders discriminate against non-essential businesses.

"You look at the car wash plaintiff. He has an independent establishment here in Toms River. He can't operate. But down the road the Exxon that happens to have a car wash on the premises, he can wash cars but my client can't. There seems to be no rhyme or reason why that is," Deem said.

If a court were to void the order, the high school seniors could have a "proper ceremony" with social distancing protocol in place, according to Deem.

The lawsuit includes a diagram of the football field at Toms River High School set up for social distancing prepared by an engineering firm.

"You could graduate 1,140 students on any football field in the state all socially distanced apart 7.5 feet," Deem said. "And we know that the Air Force Academy recently graduated 800 or 900 people at once all socially distanced. Toms River East has 350 student graduating. If you did the math and put them on the field at a minimum those students could be socially distanced by 23 feet. That's assuming we did this in one fell swoop with all 350 students."

Deem said the school could limit the number of relatives allowed to the ceremony and have room for them on the sidelines and the stands.

"We can all go to Lowe's or Home Depot and stand on line and be crowded with all these people and that seems to be fine if we're wearing a mask. Why can't these kids graduate if the school systems can come up with a plan to do so in a social responsible manner?" he said.

Deem said that while people are right to be concerned about COVID-19, they can also carry on their normal lives responsibly by wearing masks in public.

"There's no reason these businesses can't open up. The state's on the verge of going bankrupt and we've got small mom-and-pop stores that are at a point where they can't afford to feed themselves anymore. I see no reason why we can't open up the economy if we do it responsibly," Deem said.

The governor's office has not yet been served the lawsuit as of Friday morning.

Contact reporter Dan Alexander at Dan.Alexander@townsquaremedia.com or via Twitter @DanAlexanderNJ

More from New Jersey 101.5:

More here:

Lawsuit seeks to reopen all NJ businesses, allow in-person graduations - New Jersey 101.5 FM Radio

Washington state Rep. Matt Shea is accused of damaging the Capitol steps in Olympia with olive oil during a counter-protest in March.

Washington state has issued a $4,761 cleaning bill to embattled state Rep. Matt Shea (R-Spokane Valley) for an incident in March.

During a Satanist demonstration on the state Capitol steps in Olympia, surveillance cameras captured Shea with a bottle of olive oil during an apparent counter-protest.

Investigators say Shea spilled oil down the steps, causing thousands of dollars in damage. Officials say the oil was spilled on historic pieces of marble and sandstone and required extensive cleaning and repairs.

On Wednesday, Shea was sent a $4,761.34 bill for the damage and clean-up costs.

Justin Harvey-John Ashby, a self-described Satanist, who attended the March event, said he saw Shea pouring out the oil.

"He was mumbling a prayer and then I saw him dump out the oil on the steps," said Ashby, who considered it a risk to public safety.

He said he remembered thinking, "'What is wrong with you?'"

Ashby was glad the state gave Shea the cleaning bill.

"Hell yeah," said Ashby "I believe that he should be punished for disregarding the public safety and destroying public property."

Tarkus Claypool, media liaison for the The Satanic Temple of Washington, shared the following statement on Thursday:

"The fine people at DES(Department of Enterprise Services) are actually very protective of those granite steps. They asked us to change to our ritual to ensure that our invocation didn't damage them. We showed respect for public property as all responsible citizens should, especially elected officials.

It's going to take a lot more than Matt Shea and his bottle of salad dressing to stop us from exercising our first amendment rights. So he and the rest of the WA State legislature can count on us asking to give an invocation next year."

Gov. Jay Inslee and House and Senate leaders called for Shea to resign from the House of Representatives after an investigation determined he organized and participated in events considered "domestic terrorism" by investigators.

He has not responded to requests for comment.

See original here:

Satanists support $4,700 cleaning bill sent to embattled Washington state Rep. Matt Shea - KING5.com