July 11 through Aug. 23, the North Carolina Utilities Commission (NCUC) conducted several public comment hearings regarding the states plan to reduce carbon emissions. At these meetings, members of the public could (or should have been able to) freely speak out and address the commission on their implementation of the carbon plan, which the General Assembly mandated they do in H. B. 951.

However, members of the public who spoke at these public comment hearings were faced with being sworn in like in a courtroom and were subjected to cross-examination by NCUC attorneys, even if they did not have legal representation.

What average citizen shows up with a lawyer to what should have been, effectively, a town hall meeting? This does not seem like a typical public comment hearing we should appreciate as citizens of the United States in North Carolina where we should have the right to reasonably petition the government without infringement.

The NCUC does, in its ordinary proceedings, operate much like a court. Their website states, Commissioners have a job similar to that of a judge. They are required to make decisions based on the law and upon the facts of a case. While this may be a suitable procedure for their usual meetings, subjecting citizens to cross-examination by a government lawyer is not an appropriate method to conduct public comment hearings.

Imagine for a minute that during the redistricting public comment hearings, the Republican majority General Assembly forced every member of the public to swear an oath and be subjected to questioning by legislative attorneys.

People would be enraged, rightfully so, at such an infringement of their right to petition the government. Likewise, people should be equally concerned about the restrictions on free speech which occurred to those who wished to speak out about the NCUCs proceedings and perhaps to those who showed up to speak but decided not to when they saw the conditions.

Of course, the current jurisprudence on free speech demonstrates that it can and should be limited sometimes. You cannot shout fire in a movie theatre that is not actually on fire, for example, or incite imminent violence against another person. Restrictions on speech are constitutional in some cases.

However, when we, the citizenry, are encouraged to offer public comments to an entity of government, we should be allowed to do so freely and reasonably articulate our concerns without significant restrictions. Committee hearings at the General Assembly, where public comments are heard, are an excellent example of an open and fair process. It is left to the discretion of the committee chairman on who speaks and for how long, which is a reasonable example of ordered liberty, but no one is sworn in, and no person from the public is subjected to deposition by government lawyers.

Currently, the NCUC is holding expert witness testimonies at their Dobbs Building location in Raleigh. Here is the appropriate time (which they are doing, of course) to have sworn testimony from expert witnesses and those who are officially intervening in the carbon plan docket, where cross-examination from attorneys can take place. This is distinct and categorically different from public comments.

Suppose an agency of the state solicits public comments. In that case, the public should not be forced to overcome excessive burdens further imposed on them by the state, which negatively impacts their ability to petition the government. The General Assembly should consider and reevaluate the procedures of the NCUC moving forward to ensure the fairness and transparency of public comments.

Andr Bliveau is the Strategic Projects and Government Affairs Manager at the John Locke Foundation. He is an M.A. in Government Candidate at The Johns Hopkins University and previously served as a policy advisor in the North Carolina Senate.

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OPINION: Utilities Commission public comment hearings produced First Amendment concerns - The Richmond Observer

The administration, being that of a public charter school, is liable to be sued if any of the suspensions they give violate the First Amendment.

While protesting or organizing a protest are rights protected by the First Amendment, regulating certain types of student expression is still at the schools discretion.

They can suppress speech or expression if they deem it interferes with a schools ability to function, which could include physical harm, captive audience, disruption of school-sponsored activities or class time, threat, and destruction of school property.

When it comes to physical harm, the school addressed that they believe harassment occurred, but only in the context of the hey hey, ho ho chant.

When [policy changes werent met with immediate approval] in the past, the community worked together to reach a common goal and never harassed staff members in such a way, a d.tech administrative statement read.

Because the chant was targeting a position rather than a specific person, its too generalto be considered threatening if brought to court.

If the students are saying we want change and then part of the change is a change in personnel, then thats protected by the First Amendment, said Mike Hiestand, the president of the Student Press Law Center.

Another thing Hiestand points out that matters in cases of protest and use of profane language at school is whether it disrupts school-sponsored time or has a captive audience.

Nobody had to be in this protest. If somebody was offended by the use of profanity, they could have left. Thats also something that courts look at: if its at a captive audience, Hiestand said.

The students used profanity in their expression of disagreement with school policy.

We said F*** d.tech, F*** Yondr, and F*** e-hall pass,' Victor said.

According to Hiestand, the First Amendment protects this use and setting of profanity.

If it wasnt threatening, certainly any students that simply protested the policy, but even those who used profanity are protected [during a not school-sponsored activity,] Hiestand said.

The protest occurred during lunchtime, a free period, meaning it didnt disrupt school-sponsored activities.

Despite no physical threat, captive audience, or disruption of class time, certain actions surrounding the protest fell outside the First Amendments protection.

Courts definitely dont like threats; threatening language, that sort of thing. Even in jest, those are things that can change otherwise protected speech and put it into that protected category, Heistand said.

The group chat with threatening jokes about the student culture coordinator would give the school complete justification for the suspension of students. Even though it wasnt part of the protests language, it made that persons speech unprotected.

Phone use would be a violation of school rules. So I mean, somebody who did that can be held accountable for that, Hiestand said.

Several students took their phones out of the Yondr pouches with a magnet. Any student that did that could be held accountable with suspension. On top of that, if any student broke a Yondr pouch to get to their phone, that would constitute as the destruction of school property or vandalism.

If a student who didnt take out their phone or participate in threatening language on the group chat was suspended as a direct consequence of the protest, then the school would be violating First Amendment rights.

I think if we were coming at the teacher, if we were actually harassing the teacher, then I completely understand where theyre coming from. But nothing was pointed directly to them. They had no physical harm that happened to her. They said they felt unsafe, but nobody was coming towards her whatsoever. It is our First Amendment right to say what we want. They are our teachers, but at the same time, they cant tell us if we want to protest or not, Jordan said.

The administrations response in the following weeks of Aug. 24 to the protest didnt only affect the protestors; it affected d.techs entire community.

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Fanning the flames: d.tech administration's response to rebellion ignites controversy - Scot Scoop News

Dara Kam| News Service of Florida

TALLAHASSEE A federal judge on Monday refused to dismiss a lawsuit filed by suspended Hillsborough County State Attorney Andrew Warren but also rejected the Democrats request for a preliminary injunction to block the suspension by Gov. Ron DeSantis, saying the public wouldnt be served by yo-yoing prosecutors.

During an hour-long hearing, U.S. District Judge Robert Hinkle peppered a lawyer for DeSantis with questions about whether DeSantis overstepped his authority by suspending Warren and whether the governor violated Warrens protected speech rights.

DeSantis on Aug. 4 issued an executive order suspending the twice-elected prosecutor, accusing Warren of incompetence and willful defiance of his duties.

DeSantis order pointed to a letter Warren signed pledging to avoid enforcing a new law preventing abortions after 15 weeks of pregnancy. Also, the governor targeted a statement Warren joined condemning the criminalization of transgender people and gender-affirming care.

Warrens lawsuit alleges DeSantis violated the suspended prosecutors First Amendment rights and contends the governors executive order did not identify any actual conduct by Warren related to his official duties involving alleged criminal activity for seeking gender-affirming health care or abortion.

Jean-Jacques Cabou, an attorney for Warren, told Hinkle that Warren, an elected official, has to be free to express himself on issues of public importance.

Cabou took issue with the evidence DeSantis cited in the executive order.

They dont say what the governor says they said, Cabou, an Arizona-based attorney with the Perkins Coie LLP firm, told the judge.

Hinkle told Cabou that one sentence in the abortion statement seems to say were not going to prosecute any abortion case, but Cabou said there was never such a case referred to Warren.

Cabou said value statements joined by Warren arent policies that he acted on.

Every case is evaluated on a case-by-case basis, Cabou said. Theres no evidence to contradict this.

But state Solicitor General Henry Whitaker, representing DeSantis, argued that Warrens speech in the statements is not protected because it is government speech.

Andrew Warren has no First Amendment right to say that hes not going to do his job, Whitaker told Hinkle.

Hinkle repeatedly pressed Whitaker on the issue. The judge gave an example of an elected official being suspended by the governor for telling voters which candidate to support.

That cant be right, can it? he asked.

I think it can, Whitaker said.

Hinkle also pointed to a U.S. Supreme Court ruling involving former civil-rights leader Julian Bond, who was elected to the Georgia legislature in 1965. The Georgia House of Representatives refused to allow Bond to take his seat after he signed onto a statement condemning the Vietnam War. The U.S. Supreme Court reinstated him two years later, affirming that the First Amendment protects elected officials freedom to speak out on public issues.

The U.S. Supreme Court put Mr. Bond back in his position. Youre going to tell me I cant do that, Hinkle said to Whitaker. You really do think the governor is the state attorneys boss?

He is his supervisor in the same sense that federal prosecutors answer to the president of the United States, Whitaker replied.

But, shaking his head, Hinkle noted that U.S. attorneys are appointed by the president --- and are not elected state attorneys.

The governor cant go to a state attorney and start giving directions to the state attorney, the judge said.

Thats not correct. … He supervises state attorneys in some respects, Whitaker said, adding that the governor has the authority to assign cases to state attorneys. The governor was elected by millions more people than Mr. Warren was.

But Hinkle expressed concern about a governors ability to remove an elected official from office because he disagreed with their policy decisions.

Im talking about politics, partisanship, he said. Those things are all protected by the First Amendment, too.

Hinkle asked Whitaker if an elected official is speaking for the state of Florida when he holds a rally.

He doesnt have a right … to say I am a law unto myself and I cant be disciplined for it, the solicitor general responded.

The judge said he had to consider the real reason behind Warrens suspension, posing a hypothetical scenario in which a Republican governor removed a group of Democratic state attorneys who take a softer stance on crime.

The reason the governor acted was because Mr. Warren neglected his duties and demonstrated incompetence, Whitaker said.

Before ruling from the bench on the motions for dismissal and preliminary injunction Monday, Hinkle said the case included just a very preliminary record and that DeSantis replacement for Warren, former Hillsborough County Judge Susan Lopez, already has taken on the role of lead prosecutor.

I cant reliably determine the facts at this point, the judge said, adding that the public cant be served by yo-yoing this office.

Hinkle granted DeSantis motion to dismiss parts of the lawsuit accusing the governor of violating the Florida Constitution, saying any remedy by a federal court on that issue doesnt work.

But he refused to dismiss Warrens lawsuit altogether.

I think its clear that the complaint states First Amendment claims in which relief can be granted, Hinkle said.

The judge refused to grant Warrens request for a preliminary injunction blocking DeSantis action but said he wants the case to be expedited.

Its in everybodys interest to get this done just as quickly as possible, he said.

Speaking to reporters after the hearing, Warren said he looks forward to the trial, where we can win this case and put me back in office to continue doing the work that I was elected to do.

There is so much more at stake than my job. This is about making sure that our elections have meaning, making sure that no one, not even the governor, can overturn an election, can silence the vote and voice of the people, or steal their vote, he said.

Warrens suspension and legal battle have drawn national scrutiny, with more than 100 legal scholars from across the country denouncing DeSantis action and arguing that prosecutors have discretion over how to spend their resources.

But DeSantis, who is running for re-election this year and is widely seen as a frontrunner for the 2024 Republican presidential nomination, has defended his decision.

In Florida, we actually said we are going to follow the law across the board, state and local. We had a prosecutor over in Tampa that had said he wasnt going to enforce laws that he doesnt like. So, we removed him from his post, and we said thats not going to happen here, DeSantis said last month.

Link:

Fight over suspended prosecutor Andrew Warren headed to trial - Florida Today

FIRE argued the U.S. Court of Appeals for the Second Circuit should join other circuits that have recognized college faculty dont lose their free speech rights when they are public employees. (Shutterstock.com)

by Josh Bleisch

Faculty at public institutions of higher education are typically charged with three main duties: teaching students, conducting research, and serving the university. But what happens when a faculty members teaching and research involves controversial public issues?

Depending on where faculty teach, the First Amendment may not protect them when they engage in scholarship and teaching on matters of public concern as part of their official job duties.

This is due to a 2006 Supreme Court case, Garcetti v. Ceballos, which held a public employees on-the-job speech was not protected because it occurred pursuant to their job duties. However, consistent with its acknowledgment of academic freedom as a special concern of the First Amendment, the Court in Garcetti singled out public university faculty as one type of public employee that may not be covered by its decision. Despite this, since Garcetti, public university faculty, to whom the right of academic freedom most clearly applies, have had to reassert that right in the federal courts.

Academic freedom is an important part of the First Amendment because our nations universities are unique centers of free inquiry and knowledge creation.

One of those faculty members is Professor John Heim, who teaches macroeconomics as an adjunct professor at the State University of New York at Albany. Notably, his brand of macroeconomics is Keynesianism, in contrast to the preferred philosophy of the UAlbany economics department, Dynamic Stochastic General Equilibrium. Despite Heim applying several times, the economics department refused to promote Heim to a tenure-track position because of his adherence to Keynesian economics.

Heim sued, alleging that UAlbany violated his First Amendment rights. But the district court found for the university, holding that regardless of whether Garcetti applied, Heims scholarship and teaching was not protected by the First Amendment because they were not on a matter of public concern. So Heim appealed to the U.S. Court of Appeals for the Second Circuit.

Yesterday, FIRE filed an amicus brief in Heim v. Daniel in support of Professor Heim. FIRE argued the Second Circuit should join its sister courts in the Fourth, Fifth, Sixth, and Ninth Circuits by recognizing that Garcettis effect of removing on-the-job public employee speech from First Amendment protection does not apply to public college and university faculty.

Why should the free speech rights of college faculty be exempt from Garcetti?

Academic freedom is an important part of the First Amendment because our nations universities are unique centers of free inquiry and knowledge creation. As argued in our brief, Rigidly applying Garcettis framework would strip Heim of First Amendment protection merely because his job, as a university professor, is to teach and produce research. This offends the essence of academic freedom by punishing professors who pursue heterodox ideology.

By over-emphasizing the role of audience size, courts risk turning the public concern analysis into a popularity contest for speech.

FIRE also argued that Heims scholarship and teaching on Keynesian economics constitutes speech on a matter of public concern. Debate and disagreement among scholars is how knowledge flourishes. Even though disputes among academics may be opaque, they can have significant impacts on the broader public. (Think professors of literature deciding collectively and over time what makes up the cannon leading to students today reading works like Homers Odyssey and Herman Melvilles Moby Dick.) The trial court in Heims case recognized as much when it noted Heims primary audiences were government officials and economic policy wonks.

But despite that recognition, the trial court held that Heims speech wasnt a matter of public concern, giving too much weight to the niche subject matter and relatively small size of Heims audience. As FIRE wrote in its brief, By over-emphasizing the role of audience size, courts risk turning the public concern analysis into a popularity contest for speech. Indeed, much of the Supreme Courts First Amendment jurisprudence concerns speech that is or was quite unpopular or simply not of interest to the broader public.

As the brief notes, the fact [t]hat Heims audience consists of public servants charged with making important economic decisions is all the court should need to understand that his scholarship and teaching is on matters of public concern.

You can read FIREs full brief here.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If youre faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).

The rest is here:

In Heim v. Daniel, FIRE pursues opportunity to bolster academic freedom in the Northeast - Foundation for Individual Rights in Education

A speech by conservative commentator Tomi Lahren, shown here speaking in 2021, was disrupted at University of New Mexico. (Ken Ruinard / Imagn Content Services)

by Sabrina Conza

When protesters substantially disrupted a student-organized speech by conservative commentator Tomi Lahren last week, the University of New Mexico correctly tried to preserve students right to free expression while also keeping safety in mind.

On Sept. 16, Lahren spoke at UNM at the invitation of the campus Turning Point USA chapter. However, during Lahrens speech, protesters reportedly tried to force their way into the room, banged on doors and walls, and pulled the fire alarm to disrupt the speech. To their credit, administrators and police barricaded the door to keep protesters from disrupting the speech, and Lahren left with police after she finished her speech though the question and answer session was cut short.

Ideally, university police and administrators would have prevented substantial disruption without squelching legitimate protests, and the event would have concluded as initially scheduled. However, when it became clear that this wouldnt happen because some protesters resorted to physical force, UNM reportedly called the New Mexico State Police, Albuquerque Police Department, and an emergency response team to help, along with the university police who were already there.

The next day, UNM released a statement, which read in part:

The University of New Mexico is committed to the principles of free speech and values its role as a public square for debate, a marketplace of ideas, and a place to test and challenge competing viewpoints and opinions. In this context, allowing speakers invited by a student organization on campus in no way implies an endorsement of the content of their speeches or their opinions. And those who disagree with the ideas expressed are encouraged to respectfully voice their perspectives.

The safety of our campus community and visitors is our first priority. We are deeply disappointed in the actions of those individuals who intentionally chose to disrupt a scheduled speaker and infringed upon the rights of the speaker and those who attended the event to listen and engage, vandalized University property and unlawfully pulled a fire alarm. UNM is investigating these incidents and will hold anyone who violated the law or University policies accountable.

This is the correct way to handle disruption to expressive events. UNM took clear steps to ensure the event would occur, and has said that those who disrupted it by going beyond spirited protest will be investigated and held accountable.

FIRE commends UNM for getting it right unlike many universities in the past.

UNM must make sure to limit any sanctions it may impose to those who disrupted the event, and not punish non-disruptive and non-violent protesters who remained outside expressing their own First Amendment rights.

When institutions allow protesters to shut down events, they acquiesce to the hecklers veto. A hecklers veto occurs when protestors substantially disrupt an event through violence or other means to prevent a speaker from speaking. Courts have made clear that when events are targeted for disruption by those opposed to the speakers or their messages, educational institutions must respond not by removing the speaker, but rather by making bona fide efforts to protect expressive rights by other, less restrictive means. These efforts must take place before authorities suppress legitimate First Amendment conduct.

UNM took action calling in more security, barricading the door, and ensuring Lahren finished her speech before escorting Lahren out for safety reasons. The institution also made clear that it will not tolerate students who infringe on others expressive rights regardless of any legitimate complaints regarding the speaker or host organization.

In keeping with the First Amendment, UNM must make sure to limit any sanctions it may impose to those who disrupted the event, and not punish non-disruptive and non-violent protesters who remained outside expressing their own First Amendment rights. So long as it does so, UNMs actions here should serve as a model to other institutions that will face the substantial disruption of events in the future.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If youre faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).

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FIRE commends University of New Mexico for its response to disruption at Tomi Lahren event - Foundation for Individual Rights in Education

Lawyers for state teachers unions and the American Civil Liberties Union of New Hampshire faced off against the Attorney Generals Office last week over a new law banning certain concepts from being taught in New Hampshire schools.

The law, known by many as the divisive concepts law after an earlier title, bars New Hampshire educators from teaching that a person in one protected class is inherently superior to another, inherently racist, or inherently oppressive, even unconsciously, and it prohibits teaching that an individual should be treated differently for one of those characteristics.

Supporters have said the law stops teachers from tailoring lessons against one race or gender. But teachers and public education advocates say it suppresses the ability to present nuanced lessons about history and could lead to unfair punishments, including the loss of educators credentials.

Wednesdays oral argument was the first in the lawsuit, in which the ACLU, the American Federation of Teachers of New Hampshire, the National Education Association of New Hampshire, and others are seeking to overturn the law in federal court.

Heres what Judge Paul Barbadoro said in court the U.S. District Court for the District of New Hampshire and what it could mean for the future of the case.

At the crux of the case is vagueness: Plaintiffs argue the law is so vague that it is not possible to follow and violates the 14th Amendment. Attorneys for the ACLU and the American Teachers Federation have said the law does not make clear what might be prohibited and what might not be even with a frequently asked questions document released by the Attorney Generals Office last year.

The Attorney Generals Office argues that the guidance document when combined with the statute undermines the claims of vagueness.

The U.S. Supreme Court has held that some statutes can be so vague that they are unconstitutional. But exactly how far that principle applies to the banned concepts law could determine this case, Judge Barbadoro indicated Wednesday. Plaintiffs have chosen a high stakes strategy: They argue that the statute is facially vague, meaning that the statute is unconstitutional in all its applications and should be struck down entirely. They are not attempting to argue that it is vague as applied, a narrower standard.

Facial challenges like this one are much harder to establish than an as applied challenge, Barbadoro told the court. It would be easier, he said, to decide that the law is unconstitutional if plaintiffs had brought a real case of a teacher facing discipline because of an inability to decipher the law. No decided cases so far exist, though the Attorney Generals Officesaid last weekthat one charge is currently pending before the New Hampshire Commission for Human Rights.

The plaintiffs cannot win merely by positing bizarre hypotheticals saying it might be vague in that context, Barbadoro said.

But Barbadoro also appeared skeptical of the states argument that because the statute could be understood in one way, it was not unconstitutionally vague, citing an opinion by Justice Antonin Scalia in the 2015 caseJohnson v. U.S.

A statute is not vague if it is vague in a single application that has no real bearing to the issues that the court addresses, he said. But it doesnt have to be vague in all respects.

One clause of the banned concepts law came under particular scrutiny Wednesday. The law states: That people of one age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin cannot and should not attempt to treat others without regard to age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.

Barbadoro brought up the fourth concept, asking for clarity.

An attorney for the state, Sam Garland, agreed that the triple negative creates a problem. He said that the clause is meant to prevent teachers from advocating that colorblind treatment of classes of people is not possible. But throughout the back and forth, the two at times became confused.

(That) you and I are having so much trouble even communicating about the fourth concept may tell us a lot, Barbadoro said. If were having this much trouble, do you think a person of ordinary intelligence (could interpret it)?

Meanwhile, the states case could be complicated by one missing phrase from the banned concepts law: a scienter clause, Barbadoro said.

Nowhere in the new anti-discrimination law does the statute state that a teacher must have violated the statute knowingly, intentionally, recklessly, or in any particular state of mind. That type of clause, known as scienter clause, is often added to criminal statutes in order to set a standard for mens rea: the mindframe of the defendant, which can then determine whether theyve violated the statute.

The banned concepts law is not a criminal statute, but without the clause, a teacher could be found in violation of teaching one of the banned concepts without directly meaning to or having any awareness of it, Barbadoro said. The absence of the clause, he added, makes the case that the statute is too vague slightly stronger.

The Attorney Generals Office is saying to educators, or people who offer sensitivity trainings, that if you do something that implies that a banned concept is true, you could be disciplined for violating the statute, Barbadoro said. Thats how the attorney general interprets the statute, and that seems to broaden it quite expansively, especially when there is no scienter requirement.

Barbadoro said that educators could be potentially avoiding advocating a banned concept but find themselves afoul of the law anyway.

Thats where my core concern is, he said.

A lawyer for the Attorney Generals Office pushed back, arguing that the frequently asked questions make it clear to teachers which types of lessons can and cannot be taught.

Plaintiffs are also attempting to argue that the banned concepts law violates a teachers freedom of speech. On that point, Barbadoro said, they may have an uphill battle.

The success of the First Amendment argument could hinge on Barbadoros reading ofGarcetti v. Ceballos, a 2006 Supreme Court case that held that public employees do not have First Amendment rights for speech they give during their official duties. In that case, the Supreme Court ruled that a California prosecutor did not have a First Amendment protection after he was transferred to a different position after criticizing a sheriffs deputys search warrant affidavit.

On its face, that and other cases would seem to bind teachers free speech rights in the classroom, Barbadoro said.

The school board at the local level and DoE at statewide level have unlimited ability to impose any restriction on teaching, as long as it serves a legitimate pedagogical purpose, Barbadoro said, addressing the states attorney.

Barbadoro said that case law has afforded academic freedom to professors and teachers in higher education, but that that principle is much more limited when it comes to elementary and secondary school teachers.

But Barbadoro also noted that there are limits to teachers official duties. Citing a Supreme Court decision this year,Kennedy v. Bremerton School District, in which the court held that a school should not have fired a high school football coach who led his players in prayer after games, Barbadoro noted that the court had drawn lines around conduct seen to be outside the educators official school role.

I dont think they lose that right entirely, he said, speaking about the First Amendment. They cant teach what the curriculum says they cant teach. But outside of the classroom, its entirely different.

At one point in the hearing, Garland, with the Attorney Generals Office, raised a little-discussed piece of the banned concepts legislation: the severance clause.

If any provision is held to be invalid, the remainder of such sections, and their application to any other persons or circumstances shall not be affected thereby, the bill that contains the law,House Bill 2, states.

The proposal and the states mention of it raises the possibility that the law could be abridged by a future court decision, and made narrower.

Barbadoro blocked the suggestion from being discussed, arguing it would not be fair to the plaintiffs.

We may have to confront severance later down the road, Barbadoro replied. But I dont feel like the plaintiffs have to respond to this.

But elsewhere during oral argument, Barbadoro was skeptical of the notion that his ruling should help interpret the statute to make it workable.

A judge cant and shouldnt try to save the statute, he said. Its either vague or it isnt. I just have to say what it means. If I said that it meant only conduct that expressly advocates and not anything by implication, it would be a far narrower statute and of far less concern to the plaintiffs. But thats not what the statute says.

Wednesdays hearing is only the start in a potentially years-long process. The plaintiffs are requesting that the judge grant a full hearing and limited discovery. The Attorney Generals Office is pushing for the motion to be dismissed before that can happen.

In his closing remarks, Barbadoro noted his heavy workload, and said his decision would come sometime between 60 and 90 days. If he grants the motion to dismiss, the plaintiffs may appeal. If he denies the motion to dismiss, Barbadoro said he would intend to set up a short discovery period so the hearing can happen relatively quickly.

For the plaintiffs, that discovery could prove key: At a press conference after the hearing, attorneys for the ACLU said it could provide more information into how the law is being interpreted and enforced by the five bodies that can take up complaints: the Department of Education, the Department of Justice, the Department of Labor, the New Hampshire Commission for Human Rights, and the Superior Court system.

Were gonna be looking for complaints and how theyve been adjudicated and the nature of the Department of Educations involvement, said Gilles Bissonnette, legal director of the ACLU of New Hampshire.

Continue reading here:

4 things to watch in 'banned concepts' suit - Concord Monitor

TALLAHASSEE Gov. Ron DeSantis and Attorney General Ashley Moody are appealing a federal judges ruling that blocked part of a new state law that placed restrictions on how race-related issues can be addressed in workplace training a law DeSantis dubbed the Stop WOKE Act.

Lawyers for DeSantis and Moody filed a notice Friday that is a first step in asking the Atlanta-based 11th U.S. Circuit Court of Appeals to take up the issue.

Chief U.S. District Judge Mark Walker last month issued a preliminary injunction, agreeing with three businesses and a consultant that the workplace-training restrictions violate the First Amendment.

At least three other pending federal lawsuits challenge part of the law placing restrictions on how race-related issues can be addressed in public schools and higher education. Walkers preliminary injunction did not address the education issues.

As is common, Fridays notice of appeal did not detail arguments that the state will make at the appeals court. In addition to DeSantis and Moody, defendants in the case included members of the Florida Commission on Human Relations.

The law (HB 7), which DeSantis signed April 22, spurred fierce debates before passing during this years legislative session. DeSantis called it the Stop Wrongs To Our Kids and Employees Act, or Stop WOKE Act.

The employment-related part of the law lists eight race-related concepts and says that a required training program or other activity that espouses, promotes, advances, inculcates, or compels such individual (an employee) to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin.

The law takes aim at compelling employees to believe that an individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.

The plaintiffs in the lawsuit, filed June 22, are Primo Tampa LLC, a Ben & Jerrys ice-cream franchisee; Honeyfund.com Inc., a Clearwater-based technology company that provides wedding registries; and Chevara Orrin and her company, Collective Concepts, LLC. Orrin and her company provide consulting and training to employers about issues such as diversity, equity and inclusion.

They contend the law violates their ability to discuss issues such as racism and implicit bias with employees. They have pointed to the need for such things as diversity training for employees.

In his Aug. 18 decision on the preliminary injunction, Walker wrote that the law targets speech.

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If Florida truly believes we live in a post-racial society, then let it make its case, Walker wrote. But it cannot win the argument by muzzling its opponents. Because, without justification, the (law) attacks ideas, not conduct, Plaintiffs are substantially likely to succeed on the merits of this lawsuit.

In district-court filings, attorneys for the state disputed that the law violates First Amendment rights, saying it only bars businesses from requiring employees to take part in training programs that use the targeted concepts.

They (the laws restrictions) leave employers free to engage in, promote and pay for any speech they wish, including the invidiously biased speech targeted by the act, and they leave willing employees free to hear and to join in it, the states lawyers wrote last month. All they prevent is the use of the employers coercive economic leverage over its employees to make them an offer they cant refuse: Listen to the companys speech or clear out your desk.

By Jim Saunders

See the article here:

DeSantis, Moody appeal ruling that blocked Stop WOKE Act - Tampa Bay Times

Since 2012, National Voter Registration Day has been observed each September to encourage us all to vote.

Perversely, the idea of voter registration started with the opposite idea in mind: creation of a system to prohibit voting of recent immigrants, Black Americans and lower-income people.

The registration system or systems, because each state controls how its voters register also has been used to spur participation. The Voting Rights Act of 1965 voided many discriminatory practices. Mail-in and motor-voter provisions made it easier to register. Extensions of the time period for registration addressed attempts to exclude groups of the working poor who often were not at home when registrars visited.

In 1993, President Bill Clinton signed the National Voter Registration Act, which mandated that states allow citizens to register to vote by mail, at the department of motor vehicles or other local public offices and helped more than 9 million new voters.

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Today, National Voter Registration Day provides information that can help you register to vote. The organization says nearly 4.7 million Americans have used the day to register, including 1.5 million in 2020.

Voting and being able to register to vote seem obvious extensions of First Amendment rights. What good are the rights to freely think, speak, write, gather, and seek change in our government if we are unable to choose the people who carry out its policies?

Still, as my colleague Lata Nott has observed, The First Amendment protects so many activities that are adjacent to voting spending money to influence voters, expressing political views near polling stations, signing petitions to put initiatives on a ballot but stops short of voting itself.

Voter registration continues to be a contentious issue. Courts have delved into battles over gerrymandering aimed at splitting certain voter groups into differing districts to dilute those groups influence. Now, mail-in voting is the subject of scrutiny as mostly Republican state leaders defend limits on certain registration efforts seen as more favorable to likely Democratic voters.

The U.S. Supreme Court has not risen as the champion of registration and voter rights, either directly under the First Amendment or through the 14th Amendments guarantee of due process for all. (The 15th Amendment does make it clear that racial discrimination in registration and voting is illegal.)

The high court generally subjects most election-related First Amendment restrictions on campaign finance and even the wearing of election-related T-shirts in polling places to the highest bar. But it has used lesser standards in direct registration and voting cases, sometimes accepting unsupported claims of potential registration and/or voter fraud in deferring to restrictive state laws.

The voting battles around the 2022 midterm elections will be around more restrictive voter registration laws and new limits on pre-election and absentee ballots adopted in 17 states, and whether voting groups seeking to increase voting by people of color and new citizens can find ways to counter the effect of those new laws.

A 2021 USA TODAY analysis found that while some states passed post-2020 laws to expand voting access, 55 million eligible voters faced new anti-voter laws limiting access to the ballot last year. Americans overall lost more than 160 days in absentee-voting availability with the changes.

And a report by the Brennan Center found that new laws seen as restricting voting opportunities were more often sponsored or supported in state legislatures by elected officials representing the most racially diverse areas of their respective states.

The inherent values of voting and being registered to vote have been hailed since the nations early days. Alexis de Tocquevilles Democracy in America, first published in 1835, had great hopes for American democracy to succeed, based on a principle of constitutionally protected independent thinking and actions and what he called the reconciliation of personal interests and the public good.

Starting with our First Amendment freedoms, the nations founders devised a system of free exchange of views to create an informed electorate, who could then exercise self-governance through the process of elections.

Registering to vote is the first step in reconciliation of our individual views and needs against the overall needs of our society. Voting is the next step: the ultimate expression of our First Amendment right of the people peaceably to assemble, and to petition the government for a redress of grievances.

So dont let Tocqueville, your fellow citizens or democracy down. Register. Vote.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum. A version of this column was first published in September 2020.

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Speak, assemble, petition and register to vote | Smyth County News & Messenger | swvatoday.com - Southwest Virginia Today