Sex offenders are probably the most marginalized group in society (ahead only of cannibals?) so it must be the rare case indeed where the Supreme Court rules unanimously in their favor. No, this isn't a situation where some state decreed that anyone accused of a sex crime be chemically castrated without trial or any other kind of Eighth Amendment (cruel and unusual punishment) or due-process claim. Instead, a man who served his time and was released subject to the normal set of registration and living restrictions was sent back to prison because he accessed Facebook. Monday, all eight justices (Neil Gorsuch not having participated) held that this violated the First Amendment.

Let's dive into the bizarre facts of the case. Lester Packingham, who had served time for "taking liberties with a minor" when he was 21 and she was 13, beat a parking ticket and celebrated by proclaiming on his Facebook page that "God is good! . . . Praise be to GOD, WOW! Thanks JESUS!"

For this grave offense against humanity, he was returned to the big house under a North Carolina statute that bans such people from accessing a wide variety of websites.

The law is meant to prevent communications between sex offenders and minors, but it sweeps more broadly than any other such law in the country. It doesn't even require the state to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any other illicit purpose.

Accordingly, the state court of appeals overturned Packingham's conviction, but the state supreme court, over vigorous dissent, reinstated the conviction and sentence. The U.S. Supreme Court has now had the final word, finding that the North Carolina law wasn't "narrowly tailored to serve a significant governmental interest."

Translating from the legalese, this means that the state legislature slapped down a broad law that didn't closely track the social problem it was supposed to target. As the Supreme Court explained, citing Cato's amicus brief, the law may well bar access not only to social media but to any site where someone creates a profile and interacts with peopleincluding the likes of Amazon, YouTube, and WebMD, or even the Washington Post and New York Times.

But even restrictions on social media alone would be troubling if not further tailored, the Supreme Court announced. Indeed, Justice Anthony Kennedy's opinion is an encomium to the importance of web-surfing: "By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge." (The next time my wife tells me that I'm spending too much time on Facebook and Twitter, I'll reply that I'm simply enriching myself with the wealth of human knowledge.)

There are other problems with the statute, such as its vagueness. Someone subject to this law literally can't know what he can't do or say; the police themselves aren't sure!

Finally, the statute also fails constitutional scrutiny because it criminalizes speech based on the identity of the speaker. As Kennedy put it, "[e]ven convicted criminalsand in some instances especially convicted criminalsmight receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives."

The very purpose of the First Amendment is to protect the speech of disfavored minorities. Signaling out this speech for prosecutionwithout any allegation that it relates to conduct or even motivehas earned the Tar Heel State a big "dislike" from the Supreme Court.

Ilya Shapiro (@ishapiro) is a contributor to the Washington Examiner's Beltway Confidential blog. He is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.

If you would like to write an op-ed for the Washington Examiner, please read ourguidelines on submissions here.

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Even sex offenders have First Amendment rights - Washington Examiner

The combative lawyer who made the rounds defending President Trump on the Sunday talk shows is not well known to Washingtons criminal defense bar.

A new member of Trumps legal team, Jay Sekulow, 61, is, however, a fixture on conservative talk radio and a celebrity among conservative organizations for his high-profile First Amendment court battles over religious rights. He has argued a dozen cases before the Supreme Court.

Along with his own widely syndicated daily radio talk show, Jay Sekulow Live! broadcast on more than 850 radio stations, satellite radio and on his website Sekulow is also a regular guest on the Fox News Channel, The 700 Club and Sean Hannitys radio show, as well as provides commentary on the Christian Broadcasting Network.

In May, Sekulow dismissed the Russia scandal as a fraud on the American people.

On the Sunday shows, Sekulow repeatedly insisted that Trump is not under federal investigation. The Washington Post reported last week that the Russia investigation has widened to include an examination of whether Trump attempted to obstruct justice. But Sekulow said that Trump has not been notified of a probe by special counsel Robert S. Mueller III. He then conceded on Fox News Sunday that he doesnt know for sure if there is an investigation or not.

[Special counsel is investigation Trump for possible obstruction of justice]

Sekulow could not be reached for comment.

Nan Aron, president of Alliance for Justice, has often lined up against Sekulow on Supreme Court nominations and other legal issues. Seeing him on television defending Trump, she said, was totally in keeping with his career.

Hes often been the public face of the Republican establishment, Aron said. Hes been intimately involved in helping nominees like Samuel Alito and John Roberts get on the court, and its safe to say I would fundamentally disagree with his vision of justice, and his views on civil rights, womens rights and civil liberties.

A native of Brooklyn who grew up on Long Island, Sekulow is a self-described Messianic Jew and was a member of the board of the evangelical group Jews for Jesus. He earned his law degree from Mercer University School of Law in Georgia and a PhD from Regent University in Virginia Beach, where he wrote his dissertation on religious influence on Supreme Court justices.

Sekulow started his career as a tax litigator for the Internal Revenue Service. In 1987, Sekulow argued his first Supreme Court case when he represented Jews for Jesus and helped defeat a measure banning the distribution of religious literature at Los Angeles International Airport.

American Lawyer magazine wrote at the time that Sekulow was rude and aggressive and so nervous that at times he appeared nearly out of control. But for Sekulow, arguing before the Supreme Court was a formative moment, probably the most intense experience of my life.

I left the courtroom feeling like the Beatles must have felt leaving Shea Stadium, Sekulow wrote in an essay for Jews for Jesus. Or for those who might not know the Beatles, I felt like Rocky after the fight. Sekulow won the case in a unanimous decision that struck down the measure.

The victory turned Sekulow into a crusader for religious expressions and a celebrity on the Christian right.

He is very effective in the courtroom and a very effective advocate with the public, said Barry Lynn, the lawyer and pastor who leads Americans United for Separation of Church and State and has debated Sekulow more than 100 times in media appearances and on college campuses. I expect the president will use him frequently because he is a great deal more articulate than the other surrogates.

Several years after the Jews for Jesus decision, Sekulow became chief counsel for the American Center for Law and Justice (ACLJ), founded by televangelist Pat Robertson and dedicated to the ideal that religious freedom and freedom of speech are inalienable, God-given rights, according to the groups website.

The group has worked against same-sex marriage and in favor of banning abortion. But, ACLJ does not limit itself to religious legal issues. Late last year, ACLJ sued the Justice Department, seeking records of the June meeting at the Phoenix airport between then-Attorney General Loretta E. Lynch and former president Bill Clinton. That tarmac meeting happened about a week before then-FBI Director James B. Comey announced that no charges would be filed in the probe of Hillary Clintons use of a private email server.

Despite his lack of experience in criminal defense work, lawyers who know Sekulow hail him as a leader of the religious conservative legal and policy community.

You definitely should not underestimate his abilities, said Mat Staver, the former dean of Liberty University Law School who collaborated with Sekulow on several Supreme Court cases. He is an exceptionally capable and intelligent lawyer who really knows how to win a case, Staver said. He is a very rapid-fire thinker and talker. He can get out an argument in one minute that would take two to three minutes for others to make.

Read more:

Trump lawyer insists there is no obstruction investigation --but then hedges

At height of Russia tensions, Manafort met with business associate from Ukraine

Trumps lawyers contradictory Sunday, annotated

Derek Hawkins contributed to this report.

Continued here:

Conservative talk-show host and First Amendment litigator is Trump's newest lawyer - Washington Post

Im delighted to report that the Utah Supreme Court has just handed down an opinion in Butt v. State, reversing an obscenity-as-to-minors conviction that Utah lawyers Troy Booher and Beth Kennedy (many thanks to them!) and I challenged.

The Utah Supreme Court had upheld the conviction when it was first appealed, and I challenged that in a petition for review to the U.S. Supreme Court. But the state argued that the First Amendment arguments werent properly made at trial and on initial appeal; and, after calling for a copy of the record, the U.S. Supreme Court denied our petition. We then filed a state post-conviction challenge, arguing that, if the First Amendment argument was indeed not properly made, that was ineffective assistance of counsel.

And today, the Utah Supreme Court agreed, holding that the material in the case was actually protected by the First Amendment. (In this case, the ineffective assistance of counsel issue ended up turning on this substantive First Amendment question.) First, the facts (you can see more details in our cert. petition):

Petitioner was convicted of two counts of dealing harmful materials to a minor. The counts relate to two letters Petitioner sent to his family from jail while awaiting sentencing for theft. While processing Petitioners first letter for mailing, a jail guard noticed a drawing that concerned him. And he held the letter for review by his jail commander.

The letter included handwritten notes to Petitioners wife and five-year-old daughter. Petitioner wrote to his daughter: Well I know you want me to draw my whole body, but I cant draw very good, so this will have to work. The drawing was an unskilled, hand drawn picture portraying Petitioner naked. While the drawing was rough, it depicted Petitioners nipples, chest hair, pubic hair, penis, and testicles.

Three days later, without knowledge that his first letter had been intercepted, Petitioner wrote a second letter. This letter was also intercepted. In this letter, Petitioner again wrote a short note to his daughter: Hi beautiful girl. I miss you so much. I cant wait to bite your butt cheek. This is what it will look like. I love you.

Below this note, Petitioner had again roughly sketched a picture of himself naked. This picture was even more rudimentary than the initial drawing. But it portrayed Petitioners nipples, penis, and testicles. This time, however, he was holding his daughter up with her bottom next to his mouth. A speech bubble from his mouth read: Oh your butt taste [sic] so good. And a second speech bubble from his daughters mouth read: Oouch! Daddy dont Bite so hard Giggle giggle.

At trial, Petitioner attempted to justify the contents of the first drawing. He testified that prior to his incarceration he had watched a documentary about cave dwellings with his daughter, with cave drawings depicting naked people. Petitioner testified that his daughter had laughed and asked him to draw a picture of himself naked like the cave drawings.

With respect to the second drawing, Petitioner testified that his daughter likes being tickled. So as part of her bedtime routine he holds his daughters hands up in the air and nibbles all over her stomach, while she laughs. To escape the tickling, his daughter rolls over from her back to her stomach. At this point, Petitioner teases her, saying roll back over or Im going to bite your butt cheek, to which his daughter responds by rolling back over. Petitioner testified that he does not remember ever actually biting his daughter during the routine. Rather, he makes an empty threat so that his daughter will roll back over. Despite Petitioners explanation, the jury returned a guilty verdict on both counts.

When we challenged the convictions in state court, the state agreed that the conviction related to the first drawing should be vacated; and it conceded that trial counsels performance was deficient in failing to raise an independent First Amendment defense, but argued that the defendant hadnt been harmed by this error as to the second drawing because the First Amendment defense would have in any event failed. Today, the court held that the First Amendment did protect the second drawing, because it did not appeal to a prurient interest in sex, and thus did not fall within the First Amendment exception for speech that is obscene as to minors:

[T]he drawing at issue is so rudimentary that taken as a whole including the context of Petitioners unrebutted testimony about his routine with his daughter it does not depict a sexual act. And we likewise conclude that the drawing is not sexually suggestive.

An appeal to the prurient interest in sex of a five-year-old is not a particularly high bar. A prurient interest in sex is one that is a shameful or morbid. And in the context of obscenity as to minors, this assessment is judged in light of the minors age. While a five-year-old likely does not experience sexual arousal, material can still generate a desire to engage in sexual relations. Whether that desire stems from curiosity, conditioning, or otherwise, it may cross the prurient interest line.

Perhaps it could be said that a five-year-olds present desire to engage in any form of sexual activity is prurient. At a minimum, however, it can be said that this standard is met with respect to material that is aimed at appealing to a young childs interest in engaging in sexual activity with a parent (or any adult); such activity is criminal, and thus easily deemed shameful or morbid.

If we viewed the drawing as depicting sexual conduct between Petitioner and his daughter we would have little difficulty agreeing with the State [that the drawing appealed to a prurient interest in sex]. But on balance, and in light of the context given to the drawing by the only testimony on the matter presented at trial, we view the drawing differently. We do not view the drawing as portraying a sexual act.

Although the drawing clearly depicts Petitioner naked, it is unclear whether it shows him biting his daughter or simply holding her in the air and joking about doing so. It is equally unclear whether his daughter is clothed or naked. Importantly, moreover, there is no context in the record to support the States inferences that sexual conduct is in fact being portrayed.

We likewise conclude that the intended audience, Petitioners daughter, would not have perceived the drawings as sexually suggestive. Context is particularly important in this area. And the only contextual evidence in the record is Petitioners own testimony regarding the cave drawing television program and his bedtime routine with his daughter. We have little way of knowing whether Petitioners testimony was truthful. Perhaps the State is right to be skeptical about the explanation offered by Petitioner. But the problem is that we have no contrary evidence before us no indication on the record to give a different context to the drawing, and no basis for the conclusion that Petitioners explanation was fabricated. We give little weight to Petitioners story. But we do give it some weight, which together with his daughters young age leads us to conclude that Petitioners daughter would not have seen the drawing as sexually suggestive.

We conclude that the drawing is not sexual or sexually suggestive, and accordingly does not appeal to a prurient interest in sex. [Footnote: We caution that this is a close case. We conclude that on the record before us, Petitioners drawing was so rudimentary that taken as a whole it would not have appealed to any sexual interest of Petitioners daughter. But context matters. And a contrary decision might be merited in a case involving additional facts evidencing double entendre, an older child more perceptive of sexual suggestion, a context where the intended recipient might perceive a sexual meaning, or a more explicit drawing.]

One important procedural takeaway: The same Utah Supreme Court unanimously upheld the conviction initially, and then unanimously reversed it on appeal, even though three of the five Justices on the court heard both cases.

The difference, I think, is that, in 2012, the court deferred to the jurys application of the obscenity-as-to-minors test, presumably because the court saw this as simply a state-law case rather than a First Amendment case. But now, when it applied the First Amendment analysis, it had to apply independent review of the record to judge the merits of a First Amendment defense in an obscenity action, yielding no deference to the jurys verdict or the district courts conclusions on underlying mixed questions of law and fact. (Such independent review is required by the U.S. Supreme Courts First Amendment caselaw.)

So, law students and lawyers: Remember how important such standards of review can be, and remember the procedural value of raising a substantive First Amendment defense in cases involving speech crimes or speech torts.

Thanks again to Troy Booher and Beth Kennedy for all their help with the case, and to John Hurst, Freyja Johnson, Clemens Landau and Michael Teter and my colleagues Iman Anabtawi, Jason Oh and Seana Shiffrin for sitting on my moot courts for the oral argument.

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Utah Supreme Court reverses obscenity-as-to-minors conviction - Washington Post

NBC Chicago

Chicago Bears Violated Fan's 1st Amendment Rights: Suit NBC Chicago A Green Bay Packers fan claims in a federal lawsuit filed Friday the Chicago Bears violated his First Amendment Rights. Russell Beckman, who is from Wisconsin, says he is a season tickets holder for the Packers and the Bearstwo teams he lovesbut a ... and more »

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Chicago Bears Violated Fan's 1st Amendment Rights: Suit - NBC Chicago

Analysis Law and Policy

Jun 19, 2017, 12:18pm Lisa Needham

One of the best ways to ensure people don't exercise their First Amendment rights is to make it far too hazardous and costly to do so. That is what is happening right now.

We live in an era of increasing crackdowns on public protests and whistleblowing: real, and increasingly effective, attacks on the First Amendment. The First Amendment, of course, promises us the right to free speech, but it also promises us the rights to assemble and to associate. In practical terms, this generally means that you can associate with whomever you choose to, assemble together in any fashion, and speak out against the government in whatever way you see fit.

One of the best ways to ensure people dont exercise their First Amendment rights is to make it far too dangerous and costly to do so. That is what is happening right now.

Attempts to brutalize protesters and criminalize protest are nothing new. The 2008 Republican National Convention (RNC), for example, saw police firing chemical agents and projectiles at peaceful crowds and mass arrests. The overcharging of arrestees that followed the convention only added to the feeling of dystopia. Prior to even engaging in any protests, eight individuals were arrested and eventually charged under an anti-terrorism statute. Why? Because they had some banal items like light bulbs, which police alleged could be filled with paint or chemicals and thrown, along with more obviously problematic things like U-locks (to chain themselves to things) and caltrops (steel points you put on the street to deflate tires). But the key point: They hadnt done a thing with those objects yet, so the anti-terrorism charge was more than a bit of a stretch. (Terrorism charges are more typically leveled when people are found with bomb-making material, or are found with innocuous material but have detailed how they plan to use that material to make an explosive.) Those charges were later dropped because the prosecutor felt that it would distract the jury.

As grim as the RNC charges were, theyve got nothing on the latest episode of overcharging protesters. More than 200 people were arrested for protesting during President Trumps inauguration in January. Most protesters were originally charged with only one count of felony rioting but, after very few of them pleaded guilty, a new grand jury indictment was returned that charges nearly all of them with eight felony counts, including inciting to riot, conspiracy to riot, and destruction of property.

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Make no mistake: Many of these individuals were first punished for exercising their right to protest, and are now being punished for exercising their right to demand a trial rather than a plea deal. The government is also attempting totry all the defendants together, which brings up serious questions of fairness.

As reported by BuzzFeed, Jason Flores-Williams, an attorney representing three of those defendants, has already asked District of Columbia Superior Court Judge Lynn Leibovitz, who is presiding over all of the Inauguration Day prosecutions, to require a separate trial for one his clients, rather than agree to the governments plan to try defendants together.

There is a spillover prejudicial effect where when evidence against one person as I said ends up in the jurys mind being evidence against everyone else who was there, regardless of whether that evidence was actually against them or proven against them in any direct or specific way, Flores-Williams toldBuzzFeed.

The Inauguration Day protesters face felony charges that carry up to ten years in prison. Thats far too high a price to pay.

Equally chilling, six journalists were also arrested during the inauguration and charged with felony rioting. (Charges have since been dropped for all but one of the journalists).

Another way to ensure that people arent able to speak truth to power is to restrict them from documenting abuses of that power. States keep trying to pass laws that criminalize the filming or photographing of police. Indeed, whether you can record police or not is still an open question for the courts. A divided U.S. Court of Appeals for the Fifth Circuitrecently ruled on the case of a Texas activist who was filming police activity outside a police station. The court held that individuals have a First Amendment right to film the police within the states of the Fifth Circuit: Louisiana, Mississippi, and Texas. The Fifth Circuit also noted that every circuit court that has ruled on the issue has found that the First Amendment does actually protect the right of people to film police officers while those officers are performing their duties. However, several circuits havent ruled on the matter, or have stated that the right isnt clearly established. Regardless of court rulings, police continue to push back: Just in the last year, the ACLU has had to go to court in Louisiana, Massachusetts, and Pennsylvania to defend the right of individuals to record the police. Being able to record the police and share those recordings is, of course, a key component of journalism in the modern digital and visual era.

Clamping down on whistleblowers and leakers is another way to ensure that people dont speak out. If the price of speaking out is too high, people will stop. The Obama administration aggressively prosecuted leakers at a much higher rate than during the administrations of his predecessors, even going so far as to oppose allowing leakers to mount a defense based on the First Amendment. In other words, the prosecutors filed motions to prohibit defendants from saying that they were performing a public service by leaking to the press. However, the defense should be allowed because the public has a First Amendment interest in knowing about the workings of government, and government employees are in the best position to share that information.

The Trump administration looks to be equally aggressive, if not more so, having undertaken its first leak prosecution by going after Reality Winner, who allegedly leaked information about Russian interference in the 2016 election. To be sure, what Winner allegedly leaked is information that the public absolutely does need to know about: the depth and breadth and persistence of Russian attempts to hack the 2016 U.S. election. However, she now faces a fine of up to $250,000, a prison sentence of up to 10 years, or both.

Trump has stated hed consider jailing journalists over leaks, while people like former Speaker of the House Newt Gingrich (R), and others,have stated that federal employeeleakers who talk to the press are committing treason. They arent, of course. In the United States, treason generally refers to U.S. citizens who use force to align with enemies of the country. Attorney General Jeff Sessions, of course, wants to actively pursue and prosecute leakers rather than address his own peculiar failure to remember when he talks to Russians.

At the same time as the threat of leak prosecutions looms, congressional Republicans are looking to lock down press access to their members, in large part because they dont want to talk about the nightmare that is their health care bill. Journalists were told they couldnt film interviews with senators without getting permission from the (Republican-led) Senate Rules Committee. Tim Scott (R-SC) bizarrely claimed that if journalists could roam the halls and talk to senatorssomething they have always been able to dothe cameras might capture his ATM PIN and he needed to keep that private. This effort, mercifully, failed relatively quickly, but theres no reason to think that congressional Republicans who have been dodging things like town halls left and right wouldnt welcome greater press restrictions.

Criminalize protest, veil the work of police, prosecute those who share vital information with the American people, and limit availability and accountability of elected officials. These are pages from an authoritarian playbook, not a democratic one, but it is the world we live in now. We need to be vigilant against further depredations where the right to speech is concerned by supporting protesters and whistleblowers in any way we can.

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The First Amendment Is in Increasing Danger Under a Trump Administration - Rewire

Now that the courts have ruled that doctors have a First Amendment right to ask their patients if they own guns, I want to remind the patients that they also have the same First Amendment right.

To keep your gun ownership private, do not tell the doctors you own guns as it will become part of your medical records and every agency of our federal government will have a ready-made list of gun owners.

If I am asked I would say:

Doc, it is none of your business but if I owned a gun, and I am not saying that I do, I want you to know that I am aware of how to store and handle guns and I would ensure that they are kept safe from children and other unauthorized people for their safety and mine.

BRUCE MILLS, NORTH PALM BEACH

I was appalled by the letter Words mattertake care with drug use (Wednesday) by professor George Stoupas. Though I agree that addicts deserve our compassion, his comparison to people on the autism spectrum is fundamentally wrong and misleading.

People on the autism spectrum are born that way and cannot be cured. They, however, are taught to make the most of their strong points and live productive lives.

Drug abusers, as well as alcohol abusers, become users as a choice. Yes, addiction is a disease, but they can be cured if they choose to go through the extremely difficult and rigorous detox process. I personally know people who made that choice and live happy and productive lives.

JOSEPH WILLINGER, BOYNTON BEACH

Kudos to my mayor, Jeri Muoio, for joining the Compact of Mayors on Climate and Energy. Within three years, participating cities will endeavor to report their greenhouse gas emissions, set emission reduction targets and develop climate action plans.

By withdrawing from the Paris Agreement, President Donald Trump has done damage to our countrys standing with the rest of the world. The original U.S.-Paris agreement actually expires in 2020. Hopefully, by then, a wiser public will have voted him out of office. In the meantime, much can be done by local governments.

A National Geographic report asserts that Floridas coastline could be radically changed by as much as a 5-foot sea-level rise by 2100, putting Miami and other coastal cities under water. This would impact Floridas major industries as well as $390 billion worth of properties. In the wake of climate change, temperature swings are projected to be more volatile by centurys end.

It is therefore imperative that the mayors do everything within their powers to countervail this imprudent step by the president.

MARCIA DE FREN, WEST PALM BEACH

A recent letter suggested President Donald Trumps decision to leave the global warming agreement was another slap in the face of President Barack Obama and more evidence of hatred. After all, the entire agreement was voluntary.

It allows China to continue its increase of pollution at any rate until 2030. What is clearly not voluntary is the U.S. commitment to provide billions of taxpayer dollars to other countries.

So unless you believe that its all Americas fault, and we should be punished financially, you should support an agreement that commits all the largest polluters to make progress today, not 13 years from now.

Similar to NATO, everyone has to meet commitments, not just wink and expect America to do it all with our money.

JOHN GIGANTI, BOYNTON BEACH

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Letters First Amendment not just for doctors; patients can opt out - Palm Beach Post

New York Times

Michelle Carter Didn't Kill With a Text New York Times Moreover, speech that is reckless, hateful and ill-willed nevertheless enjoys First Amendment protection. While the Supreme Court has carved out narrowly tailored exceptions for literal threats of violence and incitement to lawless action, telling ... Michelle Carter found guilty in landmark texting suicide caseBoston Herald Michelle Carter: What the texting suicide case tells usBBC News A Sad and Terrible Verdict in MassachusettsNational Review Hot Air -Ars Technica -New York Times -CNN all 401 news articles »

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Michelle Carter Didn't Kill With a Text - New York Times

Katherine Owens

St. Augustine

There are some who are offended by the Confederate monuments in our Plaza and/or in other cities. These monuments serve only as a reminder of that which has come before. If every generation destroyed what it found offensive, there would be nothing left. It is a guarantee that something we believe in today will be looked upon with disgust and horror by future generations.

I have family who fought on both sides of the Civil War. I am proud of the service of all my ancestors because they defended their values. My family has lived in Florida for the last 190 years, so I ask: Why are we discussing the taking down of monuments to men who fought for Florida?

Why are we not, instead, raising up more monuments and memorials to Floridians around the state not just in the Oldest City? Instead of tearing down the Confederate monuments, why not build a monument to Union Soldiers from northeast Florida? The Civil War was a war that divided families including the Northeast Florida branch of my own family.

Both Confederate monuments in the Plaza were erected when Florida was either occupied territory or a state within the Union, and hence are protected by the Constitution and the Bill of Rights, specifically the First Amendment freedom of speech. They cannot, nor should they be taken down or removed. The builders of those monuments are no longer alive to defend their First Amendment rights. We, the succeeding generations, must do so. Additionally, the General William Loring Monument is under the protection of the Federal law against grave desecration, because he is buried under the memorial.

If in order to appease a few who are offended by the history of the United States, the State of Florida and the City of St. Augustine, an interpretive plaque must be erected, it will need to be worded very carefully. The wording needs to be such that we are neither putting words into the mouths of the erectors of the monuments, nor apologizing for what they believed.

For example: some people claim William Tecumseh Sherman was a hero and a liberator. However, many Southerners still think of him as a mass-murder of white and black Georgians and South Carolinians. It would be a violation of the Freedom of Speech of the erectors of those statues for me or anyone else to insist on a plaque that would cheapen his service to his country (as those who want an interpretive plaque for any Confederate monument or memorial are doing). We cannot know exactly what is in the minds of the men and women who erect and pay for monuments and memorials unless they write down their reasons.

We have been given a trust by proceeding generations to protect their memories. Are we up to that challenge? Or do we destroy the symbols of what they believed in just because we dont?

Read more:

GUEST COLUMN: Confederate monuments protected by First Amendment - St. Augustine Record

The Daily Banter

Post-Alexandria, Expect More Restrictions on First Amendment Rights and Zero Restrictions on Second Amendment ... The Daily Banter In other words, we can't possibly touch Second Amendment rights, but we can almost immediately restrict First Amendment rights such as free speech, free assembly and the right to petition the government for redress of grievances. Of course, certain ... and more »

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Post-Alexandria, Expect More Restrictions on First Amendment Rights and Zero Restrictions on Second Amendment ... - The Daily Banter

The Becket Fund for Religious Liberty has sent a brief to the Supreme Court in the travel-ban casebut unlike most of the many briefs in that case, it takes no position on whether the Court should uphold or nullify the ban. Its goal, rather, is to make sure that the court refrains from distorting the meaning of the Constitutions prohibition on religious establishments in the process of deciding the case.

Beckets argument is that the Court should decide the case under the free-exercise clause rather than the no-establishment clause of the First Amendment. If the ban unconstitutionally targets Muslims, that is, it impinges on their right to practice their religion. It doesnt establish Christianity (or non-Islam) as the state religion.

It seems like a pretty obvious point, but since some courts have gotten the issue wrong Becket spells it out in some detail. The executive order doesnt create an establishment because it does not place the state in control of any churchs doctrine or personnel, doesnt compel attendance of any church, doesnt provide financial support of any kind to any church, and doesnt put any church in charge of important public functions.

The Becket lawyers are not just concerned that the Court might apply the establishment clause to the case; theyre also concerned that they will apply the clause using the Lemon test. Under that test, developed in a 1971 case striking down state aid to religious schools, judges must decide whether a governmental policy has a legitimate secular purpose and whether it involves excessive government entanglement with religionboth, conservative lawyers have usually contended, highly subjective judgments. The Court has moved away from Lemon but lower courts considering the case have applied it.

As long ago as 1993, Justice Antonin Scalia likened the Lemon test to some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried. Becket wants the ghoul killed and buried for good. But theres a chance that the passions this case has called forth will bring it back once more.

Excerpt from:

Travel Ban Case Could Harm First Amendment Law | National Review - National Review

Jim Little , jwlittle@pnj.com 6:32 p.m. CT June 16, 2017

Escambia County Area Transit held a "Try Transit Day" event in an effort to boost ridership Thursday June 15, 2017. County Commissioner Doug Underhill has questioned whether it is fiscally responsible to continue funding ECAT because of its low utilization rate. (Photo: Tony Giberson/tgiberson@pnj.com)Buy Photo

The union representingEscambia County Area Transit workers hasfiled a lawsuit in federal court against the Escambia County Board of County Commissioners.

The Amalgamated Transit Union Local 1395 filed a lawsuit Friday in U.S. District Court for Northern Florida alleging Commission Chairman Doug Underhill violated its members' free speech rights.

The union's complaint names all five members of the commission as defendants. The lawsuit claims that on June 6, Underhill instructed a manager with First Transit, the private company that runs ECAT, to "discipline or discharge" any workers distributing flyers supporting the transportation system and urging riders to fight against Underhill's proposal to eliminate ECAT.

Commissioners instructed county staff on May 30 to begin the process of negotiating with the union so the county could end its contract with First Transit and operate ECAT directly.

Underhill has urged his fellow commissioners and the public to take a closer look at county expenses to eliminate wasteful spending, and has pointed to ECAT as one of the examples of waste.

During the May 30 meeting, Underhill said he wants to call a referendum on whetherto continue funding a 4-cent gas tax that provides some of ECAT's funding.

Off-duty members of the union responded on June 5 with by distributing flyers at the ECAT transfer station that read in large, bold letters "FDU" and "Fight Doug Underhill." On-duty drivers also distributedbuttons that read "I need the BUS" to riders, but stopped after being told it was against county policy.

The lawsuit claims Mike Crittenden, ECAT general manager, wrote a memo to ECAT workers that said passing out flyers on ECAT property whether on-duty or off-duty was a violation of company policy.

Underhill told the News Journal on Friday he had not seen the lawsuit. But he said nothing in his conversation with the management of First Transit was directive.

"I asked a series of questions to which they provided answers to, and that was all," Underhill said. "Absolutely no order or directive was given at any time."

Mike Lowery, president of the Amalgamated Transit Union Local 1395, said he's worried about the First Amendment rights of ECAT workers and riders.

"The employees at ECAT currently feel intimidated by the county commission, and worried that they'll be disciplined, up to termination, for conducting their First Amendment rights,whether they're on-duty or off-duty on ECAT property," Lowery said.

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ECAT union sues Escambia County over First Amendment rights - Pensacola News Journal

The First Amendment of the United States Constitution is contained in the Bill of Rights. The First Amendment has proven to be one of the most fundamental and important in respects to the rights attributed to the populace of the United States. Originally, the First Amendment was implemented and applied solely to Congress. However, by the beginning of the twentieth century, it was upheld that the First Amendment is to apply to all forms of government, including state and local levels. The Supreme Court decided that the Fourteenth Amendment Due Process Clause would apply to the 1st Amendment, and thus rendering such a decision.

As stated in the United States Constitution, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, of of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances. Though a relatively short and concise assertion, the text provides for quite an encompassing set of rights that protect the citizens of the United States, and some of the most important and basic human rights. The First Amendment has many clauses that relate to each of the concepts that it sets out to protect. Religion is discussed in two clauses, one regarding the establishment of religion, and the other the free exercise of religion.

This proves to be one of the most important rights to secure by the Fathers of the Constitution, for so many people of European descent immigrated to the American Colonies to avoid religious persecution, and to find a safe haven to practice their religion of choice without any dire consequences. The First Amendment prohibits the government to establish a formal or national religion for the nation. It also addresses that there will be no preference of any particular religion, including the practice of no religion, or non religion.

The 1st Amendment guarantees the people of the United States the free exercise of religion, without interference from governmental factions. This right would also extend to any organization or individual infringing on such right, and would be deemed as unconstitutional.

One of the most commonly referred to clauses under the 1st Amendment is the freedom of speech. This clause has proven to be of great importance, particularly in the twentieth century and continues on with such regard in our lifetime. Under the text of the First Amendment, many issues are addressed regarding Freedom of Speech, and restrictions to exist in which such a practice may prove to be harmful to the general population or public. An example is the concept of sedition, and how this conduct can lead to insurrection against the government.

Other concepts also addressed include commercial speech, political speech, obscenity, libel, slander, and symbolic speech, such as the desecration of the American Flag. Under the First Amendment, there have been important and key court cases that have established a form precedence in how to apply the Amendment to these kinds of circumstances. The Freedom of the press is also included, and subject to similar restrictions as the freedom of speech.

The rights to petition and assembly often seem to be overlooked, for freedom of religion and speech are most commonly associated with the 1st Amendment. The right to petition is important because it gives citizens the opportunity to address their government in issues that have relevance and importance to the commonwealth. The formulation of an assembly, under the First Amendment, can be interpreted as citizens gathering and unifying for the purpose of communicating views or opinions on national issues, and for the relaying of pertinent information. The right to assembly is often related to that of petition, in such a way where citizens may assemble in the process of petitioning the government.

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Donald Trump memorably threatened to open up libel laws as president, yet such an attack on the First Amendment would need to happen in the courts. And given a recent ruling in his favor in a defamation suit aimed at him, Trump knows full well that most judges maintain a very high bar for libel cases.

Even so, a libel suit can provide powerful interests with a potent weapon against intrepid reporters. Such a conflict is currently playing out in Brooklyn, and the drama features a notable cast of characters.

In October 2015, ProPublica published an investigative report on nursing home licensing in New York, which focused on the states largest for-profit network of such facilities, SentosaCare. The story questioned why, despite a record of repeat fines, violations and complaints for deficient care, SentosaCare continued to receive state approval when purchasing new nursing homes.

In March 2016, Jennifer Lehman, one of the two freelance reporters who wrote the piece, sent a letter to SentosaCares attorney, Howard Fensterman, requesting information for a follow-up story focused on the companys Medicare billing. Six days later, Fensterman filed a defamation suit in response to the October 2015 story.

Rather than target ProPublica, the complaint names Lehman and her fellow freelancer, Allegra Abramo. If the suit was intended to win damages, it would have made sense to target an established publisher with a sizable libel-insurance policy. Instead, the goal here appears to be stopping the reporters in their tracks.

Fensterman, a leading player in Nassau County Democratic politics, gained notoriety in 2014 for his aggressive defense of a nursing home on the Island after it brought in a male stripper to entertain the seniors. He is also counsel for (and a business partner of) SentosaCare, which is owned by Brooklyn resident Benjamin Landa, a central figure in Clifford Levys Pulitzer Prize-winning 2002 series in the New York Times exposing the harsh conditions faced by mentally ill residents in New York nursing homes.

Fensterman has been assisted in the case by his law partner Frank Seddio, the Brooklyn Democratic boss and president of the boroughs Bar Association. In New York City, the county machine typically hand-picks most of the State Supreme Court judges, but the one presiding in this case, Paul Wooten, was transferred from Manhattan, and is not a Seddio ally. Moreover, he has a strong track record of ruling in favor of defendants in defamation cases.

Such a cast made for lively theater at a late April appearance in Wootens courtroom, with the two sides debating the defendants motion to dismiss the case. Other than enter his name into the record, Seddio said nothing during the proceeding. According to one spectator (whos not involved in the case), the party boss appeared to be leering at Judge Wooten.

The crux of Fenstermans complaint concerns not whats in Lehman and Abramos ProPublica story, but what they left out (or whats known as libel by omission). When the story mentions investigations by New York State agencies into incidents of neglect at SentosaCare facilities, it does not include the fact that those same facilities had self-reported the incidents to the relevant agencies.

In advance of the first story, Fensterman had provided that information to the reporters, so he contends that the omission shows that the reporters intended to create reputational harm for SentosaCare. To drive home the point, he mentioned self-reporting five times in his short presentation at the dismissal hearing.

Laura Handman, retained by ProPublica to defend Lehman and Abramo, stressed to Judge Wooten that the piece is not a cover-up story. Instead, she explained, the reporters examined how nursing homes with track records of harmful incidents continue to gain new licensing, thus negating the importance of the self-reporting. According to defamation case law, Handman argued, unless omitted information changes the gist, or the meaning, or makes it false, then the decision of what to include or not to include are left to the wisdom of the journalist and publisher.

Trevor Timm of the Freedom of the Press Foundation tells the Beast that in general, The First Amendment allows for broad editorial discretion on what is and isnt reported on stories of public importance. And if public figures and institutions were allowed to sue every time they thought one ancillary alleged fact or another was left out of an article, it would grind journalism on any subject to a halt.

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In order to deter such a flood of retaliatory lawsuits, many statesincluding New Yorkhave enacted anti-SLAPP (strategic lawsuits against public participation) legislation, which allows for judges to award damages to defendants and force plaintiffs to pay for their legal costs. As Handman stated at the April hearing, This suit is a classic example of a well-financed company using a defamation suit to basically censor their critics. In short, a classic SLAPP action.

Wootens ruling on whether the case will go to trialor if not, whether he will impose anti-SLAPP penalties on the plaintiffsis expected sometime in the next few months. Rest assured that the stakes are high for everyone involved, from the lowly freelance investigative reporters to the mighty Brooklyn Democratic Party boss.

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The Brooklyn Machine vs. the First Amendment - Daily Beast

His belief that the Sandy Hook elementary school shooting of 2012 was a hoax perpetrated by false flag government agents for the purpose of inhibiting gun ownership in the United States goes beyond distaste. This is a man who has looked parents in the eye and declared their dead children to have never existed.

Free speech is a freedom we enjoy despite the right's continued attacks against the free press (see Republican attempts to prevent congressional interviews during Jeff Sessions' testimony to Congress earlier this week) and to portray Alex Jones as a victim in this context is outright repugnant.

Let us not forget that it was Alex Jones's right-wing website that pushed the "Pizzagate" conspiracy that led to a member of the alt-right threatening the institution with a firearm. As LaVenuta doubtless knows, speech considered to be inciting violence is not protected under the First Amendment.

This goes beyond simply portraying Alex Jones as a "bad guy." His website affords him his First Amendment rights and to give him a platform on a nationwide network is irresponsible and dangerous. The right's consistent self-victimization is hypocritical to the point of being ludicrous, and to push this narrative as an attack on the First Amendment is nothing short of outrageous.

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Letter: First Amendment rights defense of Alex Jones is outrageous - INFORUM

Last week, I blogged about whether the First Amendment restricts President Trumps ability to block users from his @RealDonaldTrump Twitter account. The Knight First Amendment Institute said yes. I said probably not, because I thought Trumps actions with regard to @RealDonaldTrump an account that (unlike @POTUS) precedes the Trump presidency and that conveys Trumps individual voice would likely be viewed as not government action but rather his own individual decisions and thus not bound by the First Amendment. I said (and still think) that its a close call, but I noted that some cases had suggested that even speech on government matters by high government officials may be seen as their own speech, rather than the governments, and I thought this was so here.

Holly O'Reilly, a snarky Twitter critic of President Donald Trump, got blocked by him online. She says it's "a 21st-century violation of free speech." (Adriana Usero/The Washington Post)

Jameel Jaffer from the Knight Institute was kind enough to respond. Ill quote his entire response and then offer a few thoughts of my own. (Amanda Shanor (Take Care) and Robert Loeb (Lawfare) have posted analyses that are similar to the Knight Institutes, though more detailed and worth reading.)

First, Jaffers thought:

Does the First Amendment Restrict Trump on Twitter?

The First Amendment binds President Trump when he acts in his official capacity. How do we know, though, when hes acting in his official capacity, rather than his personal one?

Earlier this week, the Knight Institute sent President Trump a letter on behalf of people whom President Trump had blocked from his most-followed Twitter account, @realDonaldTrump. We argued that the account constitutes a designated public forum under the First Amendment and that consequently President Trump is barred from blocking people from it simply because they ridiculed or disagreed with him. But why does the First Amendment apply at all, one might ask, to @realDonaldTrump, an account that Trump opened long before he became president and that could be understood as the personal counterpart to @POTUS, the official presidential account?

Professor Volokh argues (tentatively) that @realDonaldTrump is the megaphone of Trump-the-man, not Trumpthe-president. Government officials, he points out, can operate in two different capacities on behalf of the government and expressing their own views. He writes that Trump opened @realDonaldTrump before he became president, that the account is understood as expressing [Trumps] own views apparently in his own words and with his own typos, and that the account does not express the institutional position[s] of the executive branch. He distinguishes @realDonaldTrump from @POTUS, which has a handle more focused on the presidents governmental role. He states that the question falls near a borderline that hasnt been mapped in detail, but he concludes (again, tentatively) that @realDonaldTrump is not a public forum.

Its of course true that public officials sometimes act in their personal capacities. A president probably has less latitude to act in a personal capacity than, say, a city councilor does, but even a presidents statements will sometimes be attributable to the president-as-citizen rather than the president-as-president. If President Trump established a private Facebook page to communicate with business acquaintances about golf, no one would contend that the First Amendment barred him from excluding people from the group based on their views.

But wherever the line between personal accounts and officials ones, @realDonaldTrump must be on the official side of it. Here are the facts, as I understand them:

If these are the facts, as I think they are, I dont think @realDonaldTrump can fairly be characterized as a project of Trump-the-man, even if it began as his project. Whatever the account once was, its now an important channel through which Trump-the-president communicates with Americans about his presidency. Its not a personal account; its an official one and consequently its an account to which the First Amendment applies.

Heres my thinking:

1. That Trump is talking about government-related matters to the public, including what he is doing and what he will do, doesnt make it government speech. As I mentioned in my earlier post, when an incumbent running for reelection gives a campaign speech, he is not acting on behalf of the government. Likewise, even Supreme Court justices who believe that the government may not endorse religion think that its fine for government officials to express religious views in their speeches here, for instance, is the view of Justices John Paul Stevens and Ruth Bader Ginsburg in Van Orden v. Perry:

Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.

When I put up posts, or moderate comments, Im not acting on behalf of the state of California (even though blogging is part of my job, for which I get some modest credit in my job evaluations, much as professors who write op-eds are given some credit for such service to the public); likewise for Trump. To be sure, my powers stemming from my government job are small, and Trumps powers are vast. But the principle strikes me as quite similar.

For whatever its worth, the only case that has closely dealt with this, Davison v. Plowman, took the view that a government official may be speaking as a citizen and not as the government, even when he is mak[ing] public statements though social media to constituents though I should acknowledge that this is just a federal trial court case and not a binding precedent.

2. Sean Spicers statement that @RealDonaldTrump tweets are official statements doesnt count for much here, I think I dont think that a press secretary can bind the president, the executive branch or the judiciary on a legal question such as this.

3. That courts have given the presidents tweets weight in determining his motivations is not, I think, relevant: Indeed, the U.S. Court of Appeals for the 4th Circuits decision, cited by the Knight Institute, cited a tweet from when Trump was a candidate that certainly couldnt have been government speech. The theory behind the 4th Circuits use of the tweet is that Trumps motivations were relevant to whether he had a discriminatory intent at the time he created the policy, and for that the 4th Circuit didnt care whether the tweet was an official statement or just his views in 2015 as a private citizen.

4. To the extent that the presidents aides regularly write tweets in his name (not certain, and the cited source is from the time when the president was just a candidate), the matter might be different, though that is not entirely clear.

* * *

While Im talking about this, let me briefly note one other post about this, from Noah Feldman (Bloomberg). Feldman focuses on the fact that Twitter is a privately owned platform and concludes that its highly likely that there is no state action when blocking the followers takes place on such a private platform.

I dont think thats quite the right inquiry, though: If, for instance, a government agency rents space in a privately owned building to hold a public meeting and then lets citizens speak during a public comment portion of the meeting, it has created a limited public forum in which it cant discriminate based on viewpoint.

The same is true if a government agency (and not just a single politician) runs a Facebook page and allows citizens to comment there that would indeed be a limited public forum, because its government-run even if it uses private property. (See the Davison cases cited in my original post.) Likewise with Twitter, the question is whether Trump is acting as Trump-the-man and not Trump-the-government-official in running the Twitter feed, not whether Twitter is a state actor.

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Female Genital Mutilation: 4th Person Charged In Historic 1st Amendment Case Patch.com Female Genital Mutilation: 4th Person Charged In Historic 1st Amendment Case. Another individual has been charged in the historic Detroit federal court case, the first test of a U.S. law criminalizing FGM. Female Genital Mutilation As a First Amendment Right? 5 Lawyers ...Glamour all 19 news articles »

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Female Genital Mutilation: 4th Person Charged In Historic 1st Amendment Case - Patch.com

June 15 Rand Logistics Inc:

* Rand Logistics Inc says effective as of June 14, co, co's units entered first amendment to amendment no. 4 and waiver to credit agreement

* Rand Logistics Inc - pursuant to amendment, waiver provided in previously disclosed May 31, 2017 first Lien Waiver, was extended to June 30, 2017

* Rand Logistics- effective June 14, co, units entered fifth amendment and waiver to credit agreement with guggenheim corporate funding, lightship capital

* Rand Logistics - pursuant to fifth amendment, waiver provided in previously disclosed May 31, 2017 second lien waiver, was extended to June 30, 2017 Source text: (bit.ly/2rlFNao) Further company coverage:

June 15 S&P Global Ratings warned on Thursday that Minnesota's credit ratings could be downgraded if the state fails to fund payments for some state debt that was left without an appropriation for the upcoming fiscal biennium.

WILMINGTON, Del., June 15 A clean energy group that has opposed a nuclear project in Georgia estimates the plant's cost has soared to $29 billion in the wake of the bankruptcy of half-finished plant's contractor, Westinghouse Electric Co, a unit of Toshiba Corp

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BRIEF-Rand Logistics Inc says co's units enterS first amendment to amendment no. 4 and waiver to credit agreement - Reuters

Honors student J.P. Krause won the election for senior class president at Vero Beach High School in Vero Beach, Fla. And then, all of a sudden, his victory was stripped from him.

Summarily, the high schools administrators stripped him of his new position, and, to add insult to injury, gave him detention. Why? Because Krause delivered a satirical campaign speech that channeled Donald Trumps presidential campaign rhetoric and, in jest, claimed his opponent was a Communist. It was harassment, the principal concluded.

After Krauses classmates chanted speech, speech, he gave an impromptu speech that kept his fellow classmates laughing for well over a minute. I am for freedom, equality, and liberty, he said. His opponent? Well, she wants to advance Communist ideals, he smirked. She will raise taxes to 80 percent!

Krause also suggested in jest that his opponent supports their rivals at the nearby high school, whereas he would build a wall between the two schools and make their rival pay for it.

No one thought Krause was serious. The room, full of honors students in U.S. History, seemed to be well aware of the parallels Krause was making between his campaign speech and Donald Trumps presidential campaign speeches. The teacher allowed the off-the-cuff speech to continue, and there wasnt any reaction by students inside the classroom but laughter.

Nevertheless, the speech not only disqualified Krause from taking up the reins as class president, it also added harassment to his school record. The administration took my speech out of context and said I was harassing a student, Krause tells National Review.

It was a joke the whole way through.

Pacific Legal Foundation, a conservative public-interest law firm, is representing Krause in an attempt to remove the harassment claims from his school record. It also seeks to reinstate Krause as class president. It was pure political speech and obviously humorous, explains Mark Miller, Krauses attorney at Pacific Legal Foundation, to National Review. Its clearly protected in First Amendment speech.

In a letter sent to Mark Rendell, the superintendent of the school district, Miller argued that if a student gives a speech that is lewd, vulgar, or profane, then the school can sanction him.

But that is not remotely the case here, Miller retorted. Satirically claiming that an opponent in a class election wants to raise taxes, advance Communism, and implement a dress code is certainly not lewd, vulgar, or profane its a joke.

Because the high school applied the same speech code that it would use to punish students who say lewd, vulgar, or profane comments to that of a satirical speech, Miller contests that it is violating the First Amendment. J.P.s speech in no way singled out his fellow student candidate for her appearance, abilities, gender, race, creed, religious beliefs, or sexual orientation, Miller wrote. Nor was it deeply offensive.

Schools such as Vero Beach High School are sending the message to students that only some political statements are tolerable. Thats exactly the wrong message to tell a young man like J.P, Miller says.

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Violating the First Amendment, High School Punishes Student for Satirical Campaign Speech - National Review

A Michigan doctor was arrested in April for allegedly performing female genital mutilation on two seven-year-old girls who traveled from Minnesota with their families. The arrestthe first time a U.S. doctor has been arrested for the practicecame after the FBI got a tip that Jumana Nagarwala, M.D.,was performing the procedure. In addition to Dr. Nagarwala, Fakhruddin Attar, M.D., and his wife, Farida Attar, were also arrested. According to authorities, the Attars were present during the procedures, which were performed at Dr. Attars clinic.

Now these defendants will claim in U.S. federal court that performing female genital mutilation, which is widely condemned by doctors and human rights advocates around the world, is their religious right, protected under the First Amendment of the U.S. Constitution. We asked five lawyers what they think of this argument and whether they see any chance of a successful claim to the constitutionally protected right to mutilate young girls.

None of them expressed any confidence in the defenses ability to stand up in court, and they each provided some insight into why, exactly, the argument is doomed to failand why the defendants lawyers are presenting it anyway:

Visiting criminal law scholar at the University of Houston Law Center Melissa Hamilton explains the central problem with the argument that female genital mutilation should be protected by the First Amendment:

The defendant is unlikely to win on First Amendment grounds. Like other constitutional rights, there are limits to them. Winning a religious freedom case as against criminal laws that apply to all is also very difficult. In this case, causing physical injury to young girls who cannot consent to it is of greater importance. It is also of note that it is harder for the doctor to claim protection for her religious beliefs when she is carrying out a practice on others, i.e., the girls.

This idea of religious freedoms having their limits in certain cases when they go against the law of the land is well established. Family law and criminal defense attorney Jef Henninger provided a historical example of the limits of the First Amendments protection for the free exercise of religion, putting this current argument in context:

While many questions in law are not that easy to answer, this one is. Most people know that Constitutional rights are not absolute. The most common example cited by lawyers and lay people alike is that you cannot shout "fire" in a crowded movie theater. To provide a more specific example, I would point people to Reynolds v. United States, which goes all the way back to 1878.

George Reynolds, a member of the LDS church turned himself in for bigamy so that the LDS church could challenge the antibigamy laws. He was charged and convicted, and he appealed his case up to the U.S. Supreme Court. Reynolds argued that his conviction for bigamy should be overturned on four issues: that it was his religious duty to marry multiple times and the First Amendment protected his practice of his religion.

The Court rejected his arguments and affirmed his conviction. Chief Justice Morrison Waite, writing for a unanimous court, investigated the history of religious freedom in the United States and quoted a letter from Thomas Jefferson in which indicated that there was a distinction between religious belief and action that flowed from religious belief. The former "lies solely between man and his God," therefore "the legislative powers of the government reach actions only, and not opinions." The Chief Justice found that if polygamy was allowed, someone might eventually argue that human sacrifice was a necessary part of their religion, and "to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." In conclusion, the First Amendment forbade Congress from legislating against opinion, but allowed it to legislate against action.

Thus, while its a creative argument, its not going to work.

So religious-expression arguments dont always work. But even if they did, this one has a fatal flaw that might exclude it from the discussion of First Amendment protections. As Neal Davis, another criminal defense attorney, explained, the argument may be moot, because FGM is more cultural than religious:

The issue is whether the First Amendment of the United States Constitutionspecifically, the Free Exercise of Religion Clause of the First Amendmentprohibits criminalizing FGM in the United States. Many have argued that, given the lack of Islamic or Christian scripture mandating the practice of FGM, the First Amendment does not apply. Rather, FGM is a tradition or custom that is not protected under the First Amendment. Given Supreme Court precedent on criminal laws that intersect with religious freedoms, it is highly unlikely that the defense will prevail in claiming FGM violates the First Amendment.

In general, the legal community doesnt seem to be taking this argument very seriously. Norm Pattis, criminal defense lawyer and author of Taking Back the Courts, summed up the general sentiment on this issue pretty neatly:

That is a ridiculous idea. Mutilation is mutilation. This defense is going nowhere. The lawyer wins an A for effort, but he is flunking this exam.

But, as criminal defense attorney Edward Griffin points out, its a defense attorneys job to try any and every tactic, even the really long-shot, doomed-to-fail tactics:

It is a defense attorney's job topursue every possible defense and advocate zealously on behalf of your clients.

Novel defenses can lead to changes in the law. For example, Miranda rights, which we now take for granted,are a direct result of the Miranda case and zealous advocacy by defense counsel on behalf of their client, Mr. Miranda. Mirandalead to a change in both police and criminal procedure, because of the defense developed and pursued by counsel in that case. Now everyoneis, or should be, familiar with their Miranda rights, and when those rights are violated, pretrial motions can often defeat a criminal prosecution.

Sometimes defense counsel use pretrial motions as a bargaining chipto try to negotiate a better deal.

Other times, such as this, weknow we have an issue in advance due to a client's political or religious beliefs, which tend to be the most difficult cases a defense attorney can encounter during their career. In the District of Columbia we get our fair share of protestor/political cases. When a client is fighting for political or religious beliefs, it is usually totalwar with no opportunity tonegotiate a deal.

And sometimes we have no choice but tothrow shit against the wall and see if any of it sticks.

Generally, the reaction from these lawyers is that this defense will never work and is more splashy than effective. When deciding whether a practice is religious expression protected under the First Amendment, the courts have a history of imposing limits when the purported religious expression causes harm to others. Its impossible to deny that harm here, with the global medical community decrying female genital mutilation as a barbaric, cruel practice. And the argument for protected religious expression here is weakened further when you take into account that the practice is not a religious requirement but a cultural one.

Fortunately, this argument isnt being treated as a real threat, because its such a long shot. But given the trend these days of valuing religious freedom over individual rights, who knows how this landmark case will play out?

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Female Genital Mutilation As a First Amendment Right? Five Lawyers Weigh In - Glamour

On June 20, First Amendment lawyer Bob Corn-Revere will lead a discussion of free speech and comedy as part of a First Amendment lecture series called Freedom Reads, in its second year. The series, created by a partnership with Flying Dog Brewery, the 1st Amendment Society and Frederick County Public Libraries, will discuss controversial moments in pop culture.

Corn-Revere has experience with free speech conflicts and petitioned for the posthumous pardon of comedian Lenny Bruce, who was found guilty during an obscenity trial in 1964.

Corn-Revere plans to assess todays politically contentious climate where comedians like The Late Show host Stephen Colbert take on President Donald Trump.

You can say its a great time for comedy except theres a lot of people who say comedians go too far, said Corn-Revere, a partner at D.C.-based Davis Wright Tremaine LLP.

During his Freedom Reads talk, Corn-Revere plans to show a clip of Colberts controversial joke that made a reference to President Trump and Russian President Vladimir Putin in an intimate moment. Some listeners were not pleased with Colberts language and contacted the Federal Communications Commission that regulates communications on media outlets. The actual words were bleeped they did not go on the air, Corn-Revere said. Some 6,000 complaints were filed to the FCC.

Corn-Revere cited that the FCC didnt issue a fine since The Late Show airs on late-night television after 10 p.m., during the safe harbor period where stations can air content that may be considered indecent or profane. The appropriate action was nothing, Corn-Revere added.

Conflict surrounding what is protected by free speech and what is not is also happening on college campuses. Corn-Revere is currently dealing with a case involving a tenured Louisiana State University professor who was fired for using a controversial word while training student teachers to handle antagonistic parents. In other cases, hes dealt with colleges enforcing free speech zones, where outside of a designated area, students are unable to do things like hand out copies of the Constitution.

You would think the free speech zone is from the Atlantic to the Pacific and above the Gulf of Mexico, Corn-Revere said.

With a myriad of free speech battles, Corn-Revere isnt lacking work.

Im told its a great time to be a First Amendment lawyer.

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First amendment lawyer Bob Corn-Revere talks comedy and free speech for Freedom Reads series - Frederick News Post (subscription)