Here is a selection of comments on stories posted by the Times-Call on its Facebook page Sept. 5-11, 2020.

Blake Edward Miller: I will miss you Dr. Valencia, so sad. Took care of me since sixth grade or before!

Shirley Parker: As a nurse at the hospital during his time, we always knew when he was coming because he wore clogs. We all loved him. He and Dr. Tanenbaum worked so well together. He definitely will be missed.

Rod Tilley: Dr. Valencia helped me immensely during the months and years following my stroke. His patience and guidance helped me towards a new and fulling life. He will be missed.

Olivia Alvarez: I think, you need specific data, charter shools in Longmont and Firestone are open since August and they dont have any cases. You have the option to enroll your kids in the (LaunchEd) program. That is totally online.

Meaghan Woodson: No matter what the district does parents will be upset, so its pretty simple: If you want your kids in school, send them; if you dont, choose the online option.

Heather Heasley: I want to know what St. Vrain Valley School District has to say about the recent publication on the CDC website that provides guidelines to parents in the event that schools have to keep our kids (without permission) overnight in the event of an emergency. In other words, I want written confirmation from Don Haddad saying that there is not a scenario that would prevent parents from taking children home in the event of an emergency.

Amy Grace: Do it SVVSD, get these kids back in school! Jeffco is going full time in person, the largest district in our state. If they can go, we can too.

Els Dominguez: Keep all kids home until January 2021, COVID along with the flu season will be too much. Also, LaunchEd, which is the online option, is very parent led and not an option for those with computer, language and possible monetary barriers. I had my two youngest in LaunchEd and had to unenroll them as it was not working for us at all.

Sheree Briseno: My daughter has been back in school and there have been no cases at her school or with anyone elses children that I know that are in school in person. These kids need in person learning, socializing, structure, routines.

Molly Creek: Totally get both sides here, but we cant live in a fantasy world and planning to continue to push the department of health are pretty concerning stances to take.

April Koontz Leverone: What it boils down to is this, no matter what the district decides, someone is going to be pissed off. Its a lose/lose for the district. I personally love how SVVSD has handled this whole situation thus far.

Jessica Martinez: The only comment I will make is please dont believe everything you hear or read. Do what you as an individual want to do. I work in dentistry (one of the highest risk categories) and all I can say is the information we are getting in general is not accurate.

Susan Ballard-McKie: Open the schools up and let the kids get back to school! More damage is being done keeping them out. This is absolutely ridiculous.

Lisa Fox Hennig: I trust SVVSD to do the safest science based choice for our children.

Cathy Hartigan: Imagine that! Private schools and charter schools leading the way! Public schools still evaluating. Hmmm.

Bryanna Pickens: How is it too early? After three weeks youd think we would have a spike. Look at Marchs data while everyone was in quarantine!

Melanie Koppes: Sad that so many people fall for this media propaganda and fail to have a conversation with someone with a different view. I guarantee that most Americans are pretty close on most ideas but we let the biased media and corrupt politicians tell us we are enemies. We are supposed to be united to stand up to them not divided against each other.

Lance Touve: I am surprised that, after literally decades of programs, mandates, laws and wokefullness, Boulder isnt a pristine, oppressiveless example of a non-biased city. Why would they need to demonstrate?

Shawn Bebout: Funny how they are trying to allow what rights you are allowed to stand up for.

Suzanne Frazier: We have a few people in this state who want to feel like they are in control of their lives and acting in such a way that is rather immature.

Hope Rabe: My family stands with Bandimere Speedway! If its OK for rioters to peacefully protest then it should be OK for people to really hold a peaceful protest.

Theresa Burke: First Amendment rights are legal! I stand with this group who are legally gathering under our First Amendment right.

Travis Pryor: Keep driving up those housing prices, baby. Pretty soon my humble little single-family dwelling will be selling for a half million!

Dave Larison: Carbon copy of Boulder where average home prices hit $1 million (four years) ago.

The rest is here:

What Times-Call readers said this week - Longmont Times-Call

Posted Thu, September 10th, 2020 2:26 pm by James Romoser and Andrew Hamm

This week we highlight recent cert petitions that ask the Supreme Court to weigh in on an obsolete sentencing practice for the death penalty, the extent of Title IXs protections against sex discrimination, and President Donald Trumps use of Twitter. In McMillan v. Alabama, an inmate on death row wants the court to review the constitutionality of his death sentence, which was imposed by a judge after the jury voted 8-4 for life imprisonment. A judicial override procedure for death sentences was legal in Alabama at the time of McMillans sentencing but has since been abandoned. In Bose v. Bea, a former Rhodes College student asks the court to clarify the extent to which the college is liable under Title IX for expelling her based on accusations from a professor that she alleges were false and motivated by sex discrimination. And in Trump v. Knight First Amendment Institute, the president wants the court to reverse a decision by the U.S. Court of Appeals for the 2nd Circuit finding that Trump violates the First Amendment when he blocks his critics on Twitter.

These and otherpetitions of the weekare below the jump:

Williams v. United States19-1221Issue: Whether, to conduct a warrantless forensic search of a digital device at the border, government agents need reasonable suspicion that the device contains digital contraband (as the U.S. Court of Appeals for the 9th Circuit requires), reasonable suspicion that the device contains evidence of a particular crime with a nexus to the purposes of the border-search exception to the warrant requirement (as the U.S. Court of Appeals for the 4th Circuit requires), reasonable suspicion of any kind of criminal activity (which suffices in the U.S. Court of Appeals for the 10th Circuit), or no suspicion whatsoever (as the U.S. Court of Appeals for the 11th Circuit permits).

City of Austin v. Paxton19-1441Issue: Whether, underEx parte Young, a state official is a proper defendant in a federal declaratory judgment challenge under the supremacy clause to the validity of a self-enforcing state statute, if the official with authority to enforce the statute has not yet overtly threatened enforcement.

Harris v. Maryland20-101Issue: Whether, when preindictment delay has caused actual prejudice to the accuseds ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.

McMillan v. Alabama20-193Issue: Whether the execution of a person sentenced to death by judicial override violates the Eighth Amendment.

Muckleshoot Indian Tribe v. Tulalip Tribes20-195Issue: Whether the U.S. Court of Appeals for the 9th Circuit, in conflict with precedent of the Supreme Court and the U.S. Court of Appeals for the District of Columbia Circuit, impermissibly narrowed a decades-old judicial decree so as to deprive Native American tribes of their ability to exercise treaty fishing rights.

Trump v. Knight First Amendment Institute20-197Issue: Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.

Bose v. Bea20-216Issue: Whether a school that expels a student based on charges and evidence motivated by sex bias denies that student educational opportunities on the basis of sex.

Posted in Williams v. U.S., City of Austin, Texas v. Paxton, Harris v. Maryland, McMillan v. Alabama, Muckleshoot Indian Tribe v. Tulalip Tribes, Trump v. Knight First Amendment Institute, Bose v. Bea, Featured, Cases in the Pipeline

Recommended Citation: James Romoser and Andrew Hamm, Petitions of the week: Capital punishment, sex discrimination, Trumps Twitter and more, SCOTUSblog (Sep. 10, 2020, 2:26 PM), https://www.scotusblog.com/2020/09/petitions-of-the-week-capital-punishment-sex-discrimination-trumps-twitter-and-more/

Read more:

Petitions of the week: Capital punishment, sex discrimination, Trumps Twitter and more - SCOTUSblog

It was a miscommunication.

By now, that'san age-old story for the Volusia County school district, with an obvious difference this year: during the coronavirus pandemic, access to information can feel like life or death.

In that contextit was alarming to some when district leaders sent what looked like an attempt to muzzlestaff, reminding them not to speak to the media without checking with the district's spokeswoman.

How can we, as public school teachers who are mandated to provide a free space and high quality education to children, be prohibited from sharing the truth about whats going on in our classrooms? teachers union president Elizabeth Albert asked.

More: As COVID-19 quarantine rumors swirl, Volusia schools are mum

District leaders later said the intent was to remind high-level employees to use the districts spokeswoman to present factual information on the school systems behalf, particularly about the coronavirus pandemic. But government agencies also often employ such messagesto keep employees from speaking to the press about anything.

And even as district officialspledge more transparency, staff members and parents are still waiting for information about the extent of the coronavirus pandemic in schools, about delays in accessing virtual school courses and about whats really going on in schools that are more closed off than usual during the coronavirus pandemic.

It leads people to be suspicious, Albert said. And I dont think thats what we want with our educational system.

Interim Superintendent Carmen Balgobin sent a memo to principals and department heads on Sept. 4 and requested that they share the information with all staff members, according to an email obtained by The News-Journal.

To ensure we are delivering a clear and precise message, all media communications need to be facilitated through the office of Community Information, Kelly Schulz, the memo read.

Later, School Board Chairwoman Ida Wright explained it was at her request that Balgobin sent the memo. After The News-Journal reported that the district was not planning to publish COVID-19 case information and it became national news, Wright said school administrators, district staff and board members were all fielding inquiries from members of the community and the media even as the School Board and district attorney were researching the best course of action.

So she wanted to make sure those requests were going through Schulz, who would have the most updated and accurate information as the districts spokeswoman.

The News-Journalshared the memo on Twitter that same day, along with information about what rights district employees have when it comes to talking to the media. From there theinformation was shared in local Facebook groups and by reporters for other local media outlets.

Hours later, Schulz sent a statement from Balgobin via email. It reads in full:

The memo you have referenced was intended to be sent to our administrators to follow our existing media contact protocols. It is important for the school district to protect the operation of schools from substantial disruption and misinformation. As a result of this, we handle all internal communications through our Public Information Office. In no way was this intended to instruct employees on matters of their private concern protected by the First Amendment.

The News-Journal requested an interview with Balgobin, who referred to the above statement.

Wright said that when she asked Balgobin to address the issue with staff, she was thinking specifically about the sharing of coronavirus case information something the district has been widely criticized for not sharing in recent days.

We just want to have one person speaking on behalf of the district, Wright said. I think thats what she was trying to communicate.

But thats not what the memo, addressed to all staff, actually said. And although similar memos are common from government entities, one First Amendment expert said thats not the effect they have.

A memo like this would be very intimidating to an employee, said Frank LoMonte, director of the Brechner Center for Freedom of Information and journalism professor at the University of Florida.

Im reading this memo and it doesnt say all media communications in your official job capacity it says all media communications, he said. The message could not be clearer that employees are expected to clear every interaction with the news media, not just officially assigned interactions.

School districts and other public employers cannot prevent employees from speaking to the media about their experiences. They can prohibit employees from speaking on behalf of the organization, as a spokesperson, or from sharing confidential information the districtis required to maintain.

Wright said it was never the goal to be punitive toemployees, but rather to let them know the procedure. Schulz did not respond to a question from The News-Journal about whether employees who speak to the media could face punishment.

But LoMonte said the intent may not be able to overcome the effect of the memo.

In the eyes of an employee, he said, when you get a memo on official letterhead that is signed by your ultimate boss, that feels like something you cant disobey.

Communication is not only a point of contention in the Volusia County school district, where School Board members fired itssuperintendent over such concerns barely a year ago. During the coronavirus pandemic, its a topic thats being debated hotly statewide.

State agencies have conflicting ideas about what information is able to be made public, and by whom, causing districts like Volusia County to take conservative approaches lest they make a misstep and face legal action.

More: Start of school in Volusia means expected stranglehold on coronavirus case information

More: Volusia Schools to publish coronavirus case information; 8 cases so far in 4 locations

In reporting case information, the district shares numbers twice a week as well as a list of affected schools. But how many cases are at which schools, and how many students or classrooms have been advised to quarantine, is not available. The district last week refused to confirm or deny rumors about entire classrooms being advised to quarantine at schools.

At the School Board meeting last week, district officials applauded themselves and district staff for a successful first week of school. That wasfollowed by presentations of information and public commenters that painted a dissenting picture.

More: Volusia School Board celebrates successful 1st week of school; others protest

Albert also pointed to conflicts in the implementation of the districts mask policy, assertions that students would be social distancing during the school day when it's largely impossible, and mixed messages about how equitable education is for students who attend school in-person and remotely.

Im just disappointed, Albertsaid. The district to me is toocowardly to admit when something needs to be corrected and theyd rather silence folks from talking about it.

Wright said the district is working on developing more regular ways to communicate with the community, including more frequent press conferences.

Go here to see the original:

Volusia school district backpedals on media restrictions, but information is still scarce - Daytona Beach News-Journal

University of Missouri System president Mun Choi pauses a moment on Friday, June 2, 2017, before addressing system's budget and upcoming layoffs at Memorial Union on the Columbia campus. Photo by Christian Gooden, cgooden@post-dispatch.com. Photo by Christian Gooden, cgooden@post-dispatch.com

I feel University of Missouri President Mun Chois pain.

I, too, use the block button on the social media platform Twitter.

Last week, Choi, who recently added chancellor of the universitys flagship Columbia campus to his title, took some heat for blocking students on Twitter who were critical of the universitys response to the coronavirus pandemic. Like many universities across the country that opened up to in-person attendance this fall, the opening in Columbia hasnt gone that well. There has been a spike of COVID-19 cases, not just on campus, but also in surrounding Boone County, which has shown more than a doubling of cases since students returned to campus.

The spike caused a new mask mandate for students, even when outdoors. Local health officials extended various restrictions, including shutting down some bars early. Amid the spike, some students turned to Twitter to criticize the job the university has done managing the pandemic.

Soon, students who chose to criticize Choi found out they were being blocked on Twitter, even if they hadnt tagged the president in their tweets. This didnt go over well with the students, many of them studying at one of the most prominent journalism schools in the nation. National publication BuzzFeed noticed and wrote a story. An attorney from Austin, Texas, who is a 2005 graduate of MU noticed, too.

See the rest here:

Messenger: Once again, University of Missouri president seeks to stifle dissent, this time on Twitter - STLtoday.com

On Aug. 28, a three-judge panel of the United States Court of Appeals for the Third Circuit affirmed two lower court rulings that public-sector unions cannot be held liable for repaying fees collected from non-members before Janus v. AFSCME.

Who are the parties to the suit?

The Third Circuit issued a joint ruling on two separate, but related, lawsuits:

Diamond v. Pennsylvania State Education Association

The plaintiffs are Arthur Diamond, Jeffrey Schawartz, Sandra H. Ziegler, Matthew Shively, Matthew Simkins, Douglas R. Kase, and Justin Barry, all current or former public school teachers in Pennsylvania. The defendants are the Pennsylvania State Education Association, the Chestnut Ridge Education Association, the National Education Association, and several individuals in their official state capacities.

Wenzig v. Service Employees International Union Local 668

The plaintiffs are Janine Wenzig and Catherine Kioussis, two Pennsylvania state employees. The defendant is the Services Employees International Union Local 668.

What is at issue?

On June 27, 2018, the Supreme Court of the United States issued its decision in Janus v. American Federation of State, County, and Municipal Employees. In a 5-4 decision, the court ruled that public-sector unions cannot compel non-member employees they represent to pay fees to cover the costs of non-political union activities. To do so, the court determined, would constitute a violation of employees First Amendment rights.

Janus overturned the courts 1977 decision in Abood v. Detroit Education Association. In Abood, the court ruled that public-sector unions could require non-members to pay fees to support union activities that benefitted them (e.g., collective bargaining). These fees are generally referred to as either fair-share or agency fees.

After Janus, the plaintiffs in both Diamond and Wenzig petitioned for reimbursement for the agency fees they, and those similar to them, paid before Janus. On July 8, 2019, Judge Kim Gibson of the U.S. District Court for the Western District of Pennsylvania dismissed Diamond, ruling that the union had collected the fees in good faith given then-prevailing law. On Dec. 10, 2019, Judge Malachy E. Mannion of the U.S. District Court for the Middle District of Pennsylvania issued a similar dismissal for Wenzig.

Both the Diamond and Wenzig plaintiffs appealed to the Third Circuit, which consolidated the two suits. Oral argument occurred on April 24.

How did the court rule?

The appellate panel voted 2-1 to affirm the lower court decisions. Judge Marjorie Rendell, a Bill Clinton (D) appointee, wrote the courts opinion. Rendell cited similar recent decisions by other federal appellate courts.

We are not the first court of appeals to rule on this question, and we join a growing consensus of our sister circuits who, in virtually identical cases, have held that because the unions collected the fair-share fees in good faith reliance on a governing state statute and Supreme Court precedent, they are entitled to a good faith defense that bars Appellants claims for monetary liability under 42 U.S.C. 1983.

42 U.S.C. 1983 creates a cause of action for plaintiffs who are injured by a person who, acting under the color of any statute of any State, causes the plaintiff to suffer the deprivation of any rights, privileges, or immunities secured by the Constitution. Rendell, pointing to unclear Supreme Court precedent on the question of whether private parties may assert a good faith defense to 1983 liability, cited a Third Circuit precedent to that effect:

In Jordan v. Fox, Rothschild, OBrien & Frankel, we held that a good faith defense is available to private parties who act under color of state law and are sued for monetary liability under 1983. We stated our basic agreement that private defendants should not be held liable under 1983 absent a showing of malice and evidence that they either knew or should have known of the states constitutional infirmity.

Judge D. Michael Fisher, a George W. Bush (R) appointee, wrote a separate opinion concurring in the courts judgment but dissenting from Rendells reading of 42 U.S.C. 1983:

[The] Supreme Court has read immunities and defenses into 1983, but it has done so principally on the conceit that they were available at common law in 1871, and implicitly incorporated into the statute. While this approach certainly limits the scope of liability, it also constrains judges from straying too far from the statutory text.

Judge Peter Phipps, a Donald Trump (R) appointee, dissented from the judgment, writing:

The central question presented in these consolidated cases, which seek recovery of agency fees garnished from the wages of non-union members, is whether a good faith affirmative defense exists to a First Amendment compelled speech claim under 1983. I do not see a valid basis for recognizing such a defense. A good faith affirmative defense was not firmly rooted in the common law in 1871 when 1983 was enacted, and nothing else compels recognition of such a defense today.

About the Third Circuit

The United States Court of Appeals for the Third Circuit is a federal court that hears appeals from the district courts in Delaware, New Jersey, and Pennsylvania. The court has 14 authorized judicial posts and no current vacancies. The chief judge is Brooks Smith, a George W. Bush appointee. Of the courts 14 active judges, six were appointed by Democrats and eight by Republicans. Appeals are heard in the James A. Byrne Federal Courthouse in Philadelphia, Pennsylvania.

What comes next?

Attorneys for the plaintiffs have not said whether they intend to appeal the decision. The case names and numbers are Diamond v. Pennsylvania State Education Association (19-2812) and Wenzig v. Service Employees International Union Local 668 (19-3906).

Number of relevant bills by state

We are currently tracking 102 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills were tracking.

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s)

No legislative actions have been taken on relevant bills since our last issue.

Go here to see the original:

Class-action lawsuits over repaying public-sector union fees rejected - Ballotpedia News

A Springfield alderwomans question about a Labor Day boat parade on Lake Springfield in support of President Donald Trump has perhaps inadvertently turned up the political heat as the November election nears.

The event was one among many boat parades held across the country over the holiday weekend to show support for Trumps reelection. Several participating vessels were decked with pro-Trump flags and other paraphernalia as they paraded around the lake.

Ward 6 Ald. Kristin DiCenso asked City Water, Light and Power officials and city attorney Jim Zerkle at Tuesdays committee of the whole meeting if a permit was necessary for the event and if one had been obtained.

DiCenso said she was enjoying a day at the lake with her son and niece when she noticed the parade of boats "hooting and hollering and tooting their horns and having a jolly old time on Lake Springfield," which is city-owned property. DiCenso said she fielded several calls complaining about the parade.

CWLP chief utility engineer Doug Brown told City Council members that a permit had not been requested, and Zerkle, though acknowledging that a "boat parade" was not something the city typically deals with, said it was likely allowed under the First Amendment.

"Generally speaking, the courts are going to protect freedom of speech," Zerkle said. "So, absent a public safety concern boats too close, driving too fast, unsafe activities by way of jumping out of the boats into the water, things of that nature there's going to be a preference to support the First Amendment."

The question was asked and answered, and the discussion was seemingly over within five minutes. But, it turns out, it was only the beginning.

On Thursday, DiCenso became the target of fierce criticism from Sangamon County Republican Party chairwoman Rosemarie Long, who was responding to information on a flier thats been making the rounds on social media.

The flier claimed that DiCenso, following Tuesdays meeting, had described the boat parade as "horrid and unacceptable" and that she had plans to propose an ordinance that would prevent the displaying of political signs and flags on lake property.

The flier has been distributed to various lake clubs and to lake lease owners. Long, speaking at the partys committee call, said she was "getting goosebumps because I'm so mad" about the claims.

"I cannot tell you how upsetting this is to me," Long said. "What happened to freedom in this country, in this town, in this county when they just think about not letting you place your American flag in your yard?"

But DiCenso flatly denied the claims made in the flier, saying they contained "completely made up statements." She also said she has never proposed preventing political signs or flags from being displayed on lake property and has no plans to introduce such a plan.

Several aldermen reached Friday, including Ward 10 Ald. Ralph Hanauer, said DiCenso has never mentioned such a proposal to them. Hanauer said that he doesnt "think everything's accurate that was in the flier."

Long declined to disclose who sent her the information or identify the "sources" cited in the flier.

"I just feel everyone is jumping at any chance to do away with our American way of life," Long said. "And just even because a group was out having a good time on the lake, now, all of a sudden, 'Oh, weve got to get a permit, we've got to make them do this, we've got to make everyone do this.' I just think every little thing the American people try to do anymore is trying to be taken away from them."

DiCenso said the controversy is an example of the Sangamon County GOP "just looking for something, for anything" to drum up during an election year.

"My question wasn't out of line," DiCenso said. "I never mentioned any candidates name. I just said there was a boat parade. I'm asking what the regulations are. If an alderman can't ask that question at City Council without the other side launching a full-blown smear campaign along with graphics and a pamphlet, then something's really wrong in the city."

Though the Springfield City Council is technically a nonpartisan body, council members typically identify with and are supported by one of the two major political parties.

DiCenso and Alds. Shawn Gregory, Doris Turner, Erin Conley and Jim Donelan identify as Democrats, while Alds. Chuck Redpath, John Fugenzi, Andrew Proctor and Hanauer are Republicans. Ward 7 Ald. Joe McMenamin, who previously lost a Democratic primary for Congress, identifies as an independent.

The council typically keeps the focus on issues facing the city. But in a country deeply divided along partisan lines and with less than two months before a heated presidential election, national politics have inevitably seeped down.

Hanauer briefly challenged DiCenso on her questioning of the parade Tuesday, calling it free speech. But even then, there was levity at the end of the conversation, with DiCenso jokingly telling Hanauer "and now we know who you're voting for," implying his support for Trump.

Hanauer replied, "I dont think there was any doubt on that."

Still, reached Friday, Hanauer said he thinks DiCenso would not have brought up the topic if it were a boat parade for a candidate she supports.

"What rubbed me wrong on this was, if it would have been a boat parade with a Democrat candidate on, Kristin would have never said anything about it," Hanauer said.

But DiCenso said that is not the case.

"Im all for free speech," DiCenso said, noting that an American flag hangs on her porch and four political signs are in her front yard. "But we're talking about municipally-owned property."

"We have rules and regulations on our property, we have speed limits on the lake, you have to wear a life jacket, we have lake police," DiCenso said. "Again, if you have events or activities at the lake, you have to have a permit. I was just asking a question."

Political writer Bernard Schoenburg contributed to this report. Contact Brenden Moore: brenden.moore@sj-r.com, twitter.com/brendenmoore13.

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Alderwomans question about Trump boat rally on Lake Springfield turns up heat as election nears - The State Journal-Register

David Warren, Governors Village

To the Editor:

Like all Americans, I love our country and I am grateful to be born here. I learned to respect the Flag as a Boy Scout, served under it in the Navy and studied its history in law school (e.g., the First Amendment allows flag burning and other means of protest as a form of symbolic speech under a 1989 Supreme Court ruling). And I display the flag proudly on all federal holidays and presented it in the triangular fold at the funeral of my father, a WWII vet.

The First Amendment also allows citizens to not participate in the Pledge of Allegiance and to take a knee during the playing of the National Anthem. I take the Pledge (originally composed by a Union soldier during the Civil War) along with other citizens in patriotic settings, saying Under God even though it was only later added by Cold War fervor and raises questions under the First Amendments religion clause.

Our constitutional traditions permit, and perhaps even encourage, the public expression of starkly different points of view, particularly during a political season. But no one condones violence by the far left and far right perpetrators during the peaceful Black Lives Matter protests. While conservatives and progressives can and do hold the same hopes for our nation to be the Land of the Free and that the military, National Guard and police are important elements in protecting the security and safety of our society, we can easily differ on the paths to achieve the shared goals of racial justice, fair immigration, criminal justice system reforms, educational system upgrades and economic opportunity for all our citizens.

Because I have heard Joe Bidens assurances of policies that emphasize inclusion and tolerance, respect for science and the environment, reliance on competent and experienced advisers, re-engagement with the global community and rebuilding trust in the government at all levels, I will be voting for the Democratic Party ticket in the faith of achieving a more perfect Union.

Regardless of viewpoint, we all have a patriotic responsibility to work hard to restore civility, trust and mutual respect in our institutions and communities, and among ourselves. Especially it is crucial in these testy times of hyperbolic viewpoints that the soul of America be preserved and promoted.

In conclusion, each of us who loves our democracy must take seriously the individual responsibility to honor our common values and to take the time to vote!

Read more from the original source:

Letters: God bless America, and vote! - The Chatham News + Record

Today, Judge Patrick Bumatay dissented from the denial of rehearing en banc in NLRB v. International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers. I would commend everyone to read his careful analysis about how lower courts should approach originalism and stare decisis. I may be partial to his approach, as he cites my article on this issue.

I agree with Judge Berzon that this case should have been taken up en banc. I write separately to emphasize my views on why the Supreme Court's decision in International Brotherhood of Electrical Workers, Local 501, A.F. of L. v. NLRB, 341 U.S. 694 (1951) ("IBEW"), is not binding in this case and why it is our duty to apply the Constitutionnot extend precedenthere.

As inferior court judges, we are bound to follow Supreme Court precedent. Hart v. Massanari, 266 F.3d 1155, 117071 (9th Cir. 2001). After all, "[f]idelity to precedentthe policy of stare decisisis vital to the proper exercise of the judicial function." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 377 (2010) (Roberts, C.J., concurring). But our fidelity is not blind. We always have a "duty to interpret the Constitution in light of its text, structure, and original understanding." NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring). The same could be said of precedent that has been eroded by more recent jurisprudence.

This doesn't mean that lower court judges can refuse to follow precedenteven if subsequent caselaw or the original meaning cast it into doubt. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Lower court judges don't have license to adopt "a cramped reading" of a case in order to "functionally overrule" it. Thompson v. Marietta Educ. Ass'n, No. 19-4217, 2020 WL 5015460, at *3 (6th Cir. Aug. 25, 2020). Nor are we permitted to create "razor-thin distinctions" to evade precedent's grasp. Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU J.L. & Liberty 44, 51 (2019).

But, where precedent is seriously questioned "as an original matter" or under current Supreme Court doctrine, courts "should tread carefully before extending" it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting). We can take care not to unduly expand precedents by reading them "in light of and in the direction of the constitutional text and constitutional history." Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting). So too with intervening Supreme Court decisions. And if a faithful reading of precedent shows it is not directly controlling, the rule of law may dictate confining the precedent, rather than extending it further. Cf. Citizens United, 558 U.S. at 378 ("[S]tare decisis is not an end in itself. . . . Its greatest purpose is to serve a constitutional idealthe rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.").

In this case, he finds there is not a "razor-thin" distinction with precedent. Therefore, it should not be extended:

Given this backdrop, nothing in Supreme Court doctrine or principles of stare decisis require the extension of IBEW here. IBEW deals with picketing and this case does not. As the cases above show, this is not a "razor-thin" distinction. And as Judge Berzon ably demonstrates, IBEW cannot be squared with modern First Amendment law. See Dissent at 16 (Berzon, J., dissenting) ("Given such a sea change in First Amendment jurisprudence," IBEW "would need to be quite directly on point to be controlling today.").

Indeed, Judge Bumatay argues that the a careful study of the original meaning further justifies not extending this precedent. He favorably cites the work of Jud Campbell.

Also, I have doubts that 158(b)(4)(i)(B), as applied here, would be consistent with the original meaning of the First Amendment. That Amendment pronounces that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend I. While the contours of this language need further explication, and there is ongoing debate about its meaning among scholars, Justice Scalia articulated the convincing view that the First Amendment generally prevents government from proscribing speech on the basis of content, subject to "traditional categorical exceptions." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 38283 (1992) (identifying obscenity, defamation, and fighting words as examples of such exceptions). Another persuasive view is that the First Amendment cemented the natural right to freely express one's thoughts, spoken or written, subject to restrictions for the common good. See Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 30407 (2017). But, under this view, "the Founders widely thought that the freedom to make well-intentioned statements of one's views belonged to a subset of natural rights . . . that could not be restricted in promotion of the public good and thus fell outside legislative authority to curtail." Id. at 25556. As James Madison said, "[o]pinions are not the objects of legislation." 4 Annals of Cong. 934 (1794); see also Thomas Jefferson, A Bill for Establishing Religious Freedom (1779) ("[T]he opinions of men are not the object of civil government, nor under its jurisdiction[.]").

Considering our growing understanding of the First Amendment's original meaning, I question whether Congress can abridge the type of expression at issue here, especially the common catchphrase, "friends don't let friends cross." NLRB, 941 F.3d at 904. Such an expression seems precisely like the type of "well-intentioned statement[] of opinion" that the Founders would have thought inalienable. See Campbell, supra, at 25556, 284. By denying rehearing en banc, we've passed on a valuable opportunity to examine First Amendment history and further ground our own jurisprudence in the original meaning of the Constitution.

Judge Bumatay is forming his own string cite for other judges to cite.IAB Local and Edmo are exactly right. (I blogged about Edmo here.) He also cites Judge Thapar's decision in Thompson v. Marietta Educ. Ass'n. (Jon Adler blogged about it here.) Judge Bumatay really should have been added to the not-so-short list.

With a contrary perspective, Mike Dorf recently wrote that lower courts should disregard Supreme Court precedent that has been called into doubt.

Read the original:

Judge Bumatay on Originalism in the Lower Courts: "It is our duty to apply the Constitutionnot extend precedent" - Reason

Methods of addressing attorney discrimination already exist, rendering the proposed Rule not just unconstitutional, but wholly unnecessary.

Texas Insider Report: AUSTIN, Texas

In December 2016, Attorney General Paxtonissued an opiniondescribing the Rules glaring unlawfulness. And in 2018, the United States Supreme Court concluded that state restrictions on professional speech are presumptively unconstitutional because they are content-based restrictions on speech. Despite these rulings, the Texas Bar is set to consider on Thursday whether to refer Model Rule 8.4(g) to a committee for further consideration.

The proposed Rule is broad enough to extend beyond judicial proceedings to include participation in education panel discussions, authoring law review articles, or even informal conversations at a bar association event. It effectively suppresses honest and thoughtful exchanges about complex issues, said Attorney General Paxton. Methods of addressing attorney discrimination already exist, rendering the proposed Rule not just unconstitutional, but wholly unnecessary.

Follow this link:

AG Paxton Warns State Bar of Texas Against Adopting Rule that Would Trample Attorneys' First Amendment Rights | texasinsider - Texas Insider

Jeremy Dys, Opinion contributor Published 6:13 a.m. ET Sept. 10, 2020

When U.S. District Judge Gregory Tatenhove placed a temporary restraining order on Kentucky Gov. Andy Beshears unconstitutional attempt to halt in-person worship during the COVID-19 pandemic, he did so with the following moving language: The Constitution will endure. It would be easy to put it on the shelf in times like this, to be pulled down and dusted off when more convenient. But that is not our tradition. Its enduring quality requires that it be respected even when it is hard.

His decision in Tabernacle Baptist Church v. Beshear was a major win for religious liberty. But despite the clear victory in the Tabernacle case, religious liberty remains under threat in Kentucky and across the nation.Far too many governors and local elected officials continue to flex their power by restricting religious worship, including by preventing private, religious schools from opening.

Tabernacle Baptist Church(Photo: Tabernacle Baptist Church)

But Kentucky Attorney General Daniel Cameron seems to respect the autonomy of these religious institutions.He recently issued a thorough opinion defending religious schools from state and local officials attempting to prevent them from reopening. Referencing Tatenhoves opinion and other precedents, Cameron argued that the law governing religious liberty prohibits the government from closing religious schools that choose to offer in-person instruction this fall.

Part of the freedom to practice ones faith is the freedom to be free from governmental interference in the internal governance of religious organizations, including schools. That is no less true in the midst of a pandemic.

After all, as the Supreme Court recently affirmed in Our Lady of Guadalupe Schoolv. Morrissey-Berru, faith-based schools exist primarily to communicate their faith to the young. For the government to interfere in how these schools carry out their central mission necessarily intrudes upon the First Amendments guarantee to the free exercise of religion.

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Camerons opinion is timely. Across the country, overzealous government officials are continuing to restrict the First Amendment rights of religious organizations, sometimes even in opposition to public health recommendations. In Montgomery County, Maryland, local officials initially issued a directive prohibiting private, religious schools from conducting on-campus learning until at least Oct. 1.Within days, Governor Larry Hogan issued an emergency order removing the authority of local health agencies to shut down private, religious schools.

Texas Attorney General Ken Paxton sought to blunt attempts by local officials in his state to close private, religious schools by issuing clear guidance weeks before the start of school making it clear that local officials dont have the authority to do so.That did not stop them from trying.Local officials in Cameron County, Texas ignored the Attorney Generals guidance, dismissing it as nothing more than an opinion and ordering the closure of the countys religious schools until they declared they could open. First Liberty Institute stepped in to remind them of the law.

And, in Californias Santa Cruz County, local officials are preventing in-person instruction in schools despite allowing the schools to act as day camps and childcare centers. In fact, California allows small groups of children to gather for a variety of purposes, including for childcare, preschool, daycare, day camps, and recreation programs. Incredibly, for most of the state who live in counties on the COVID-19 monitoring list, children may still gather in these small groups as long as they arent learning.

All of us, including schools, should consider the advice of experts and their evidence-based health and safety guidance. We should all do what we can to promote a safe reopening. Nonetheless, a pandemic does not grant government officials the authority to ignore the Constitution and the freedoms it has guarded for 200-plusyears.

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As Attorney General Cameron said, The law prohibits the state from mandating the closure of religiously affiliated schools that are complying with recommended health guidelines. Our courts have consistently held, throughout this pandemic, that religious entities are protected by our Constitution.

Lets hope the Governor and local officials in Kentucky and across the nation heed those words.

Jeremy Dys (@JeremyDys) is Special Counsel for Litigation and Communications for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all Americans. Read more at FirstLiberty.org.

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The continuing fight for religious liberty in the age of COVID-19 - Courier Journal