Two of the nations leading bar associations recently issued warnings about attorneys who mislead the public, make baseless charges, or blatantly lie about highly charged matters to be resolved in court. Both associations were responding to false claims made by attorneys for former President Donald Trump about the search of his Mar-a-Lago resident, challenging its lawfulness and the integrity of the federal government.

Some of the statements have been shown to be verifiably false, while the rest lacked a scintilla of evidence. Yet confronted with contrary facts, none of those attorneys provided support for their statements or corrected the record. Words are consequential, the associations underscoredthey can invoke violence directed at judges, FBI agents, and everyone involved in law enforcement.

Such lies by lawyers are nothing new. They continue a rampant pattern of lies offered in court and in the public sphere by election deniers.

The New York City Bar Associations report starkly reiterated that attorneys should not make claims of wrongdoing against officers of the court for which they have no factual basis, or which they know to be incorrect. Nor should attorneys, especially in a highly charged environment of public interest, make comments about the judicial processes or judicial officers that they know to be demonstrably misleading or palpably false.

A week earlier, the New York County Lawyers Association called out the danger of threats and antisemitic slurs aimed at the federal magistrate judge who issued the Mar-a-Lago warrant, as well as the identification of two FBI agents involved in the search, and the subsequent armed attack on the FBIs Cincinnati office.

Such warnings implicitly raise a crucial First Amendment question: Do lawyers lies have the same First Amendment protections as lies by others?

As I explained in A Right to Lie? Presidents, Other Liars, and the First Amendment, the Speech Clause impedes the states power to punish most lies. Long-standing exceptions to that principle include regulation of defamation, exemplified in current lawsuits brought by Dominion Voting Systems and Smartmatic against Fox News and others.

However, First Amendment protection for knowing falsehoods does not amount to an affirmative right to lie. The state violates the Constitution when it punishes speech simply because a court believes it to be false. The US Supreme Court has indicated that the government may only punish verifiable false statements of fact that harm others or unjustly benefit the liar.

The First Amendment may create an insuperable obstacle to state regulation of lies attorneys tell about pending proceedings, but it does not apply to private discipline by professional organizations. Arguably, as the New York City Bar suggested, attorneys waive some of their First Amendment rights to lie about public events and submit to the jurisdiction of the bar association as a condition of their license to practice law.

It is important to distinguish several settings in which lawyers might knowingly misrepresent the facts.

First, lawyers who represent clients in the dispute must be truthful in all statements to a court as well as to third parties, including the public. The ABA Model Rules of Professional Conduct prohibits attorneys from making false statements of fact or law before a legal tribunal as well as to the public.

A federal judge in Michigan explained in sanctioning Trump attorney Sidney Powell for her lies about the 2020 election and referring her to the Texas bar for professional discipline that conjecture and speculation are neither permitted nor welcomed in a court of law.

Referencing a 1991 Supreme Court opinion, she added, it is well-established that an attorneys freedom of speech is circumscribed upon entering the courtroom. In court, attorneys do not retain personal First Amendment rights because they are just doing their jobs. The legal definition of lies does not include conjecture, opinion, and the like, but courts require more of attorneys than not technically lyingassertions must be backed by evidence.

Of course the Michigan court did not mean to suggest that lawyers representing clients can lie outside of judicial proceedings. Powell carefully limited her fabrications to extrajudicial settings. She was cautious in court filings, and even asked the court to disregard her public statements as too incredible to be taken seriously.

Indeed, a New York appellate court upheld the suspension of Rudy Giulianis law license in part because of his false statements of material fact or law to third persons, that is, the general public. Giuliani communicated demonstrably false and misleading statements to courts, lawmakers and the public at large while trying to overturn the 2020 presidential election results.

A third and more nuanced situation involves lawyers who are not involved in the controversy. The Model Rules of Professional Conduct generally apply to attorneys in the course of representing a client, and the Supreme Courts conclusion that lawyers doing their jobs in court lack First Amendment rights does not seem to apply to attorneys without a client who speak about matters of public concern.

But the New York City Bar exhorted all attorneys to refrain from falsehoods. The specific setting and the lawyers choice of hat may matter. If speaking as myself, a concerned citizen, or as a legal opinion commentator, the scope for prevarication may be wider than if the lawyer speaks as the chair of the judiciary committee.

On what ground can we demand lawyers stay within the boundaries of professional propriety? This brings us to the quintessential features of the legal profession.

Upon admission to practice each lawyer is considered a public citizen having special responsibility for the quality of justice. As the Model Rules of Professional Conduct explain, Lawyers play a vital role in the preservation of society. That is why we hold ourselves to high aspirational standards, even when we may lack effective means of enforcement.

The New York bar associations were right to rebuke flagrant falsehoods that target the very rule of law. We should all take those warnings seriously.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Catherine J. Ross is Lyle T. Alverson Professor of Law at the George Washington University Law School. She specializes in constitutional law with particular emphasis on the First Amendment, and family law. She is the author of A Right to Lie? Presidents, Other Liars, and the First Amendment.

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Does the First Amendment Protect Attorneys Who Lie? - Bloomberg Law

On Wednesday, September 14, 2022, at 10:00 a.m. ET, Rep. Jamie Raskin, Chairman of the Subcommittee on Civil Rights and Civil Liberties, will hold a hybrid hearing to examine how the fossil fuel industry is weaponizing the law to stifle First Amendment protected speech and stymie efforts to combat climate change by abusing Strategic Lawsuits Against Public Participations (SLAPPs) and anti-protest laws.

Since the 1980s, SLAPPs have been used by powerful entities and individuals to silence critics through costly, lengthy, and often meritless litigation. These lawsuits have recently been employed by the fossil fuel industry to target environmental activists and non-profits by claiming defamation, trespass, and even racketeering to deter them from speaking out against proposed fossil fuel pipelines and other projects that contribute to climate change.

In response to increased protest activity surrounding fossil fuel pipelines, 17 states have enacted anti-protest laws as of June 2022, labeling them critical infrastructure protection laws. These laws are selectively enacted and enforced to target environmental activists and protect corporate interests.

The fossil fuel industrys use of SLAPPs and support for anti-protest laws not only stifles free speech, but also serves as another form of disinformation about climate change. After years of spreading denial and disinformation, fossil fuel companies now acknowledge the existence of climate change but are attempting to ensure their greenwashing narrative dominates by silencing opposing views.

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Free Speech Under Attack (Part III): The Legal Assault on Environmental Activists and the First Amendment - House Committee on Oversight and Reform |

Title IX, the federal law enacted to combat discrimination based on gender just recently celebrated its 50th anniversary. Enacted in 1972 Title IX of the Education Amendments protects people from discrimination based on sex in education programs or activities that receive federal financial assistance. Title IX states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Perhaps best known for its application to ensure that females receive equal footing with male counterparts when it comes to athletics in public schools, Title IX also addresses discrimination when it comes to recruitment, admissions, counseling. financial assistance, sex-based harassment and assault, treatment of pregnant and parenting students, treatment of LGBTQI+ students, discipline, single-sex education, and employment.

And in addition to some 17,600 local school districts and over 5,000 postsecondary institutions nationwide that receive federal financial assistance, Title IX also applies to other local and state educational organizations such as charter schools, for-profit schools, libraries, museums, vocational rehabilitation agencies and education agencies.

While there are no doubt some admirable intentions and results of the 50-year-old legislation, Title IX has also been a lightning rod for controversy as many institutions have used the act as a premise to enforce their own established rules governing speech and actions, which have pitted them squarely against other enumerated rightsspecifically the First Amendment to the United States Constitution.

Recently, the Biden Administrations Department of Education set forth a Fact Sheet to accompany its proposed amendments to Title IX that would appear to give cover to those institutions already curtailing speech. The Fact Sheet begins by stating:

The Departments proposed amendments will restore vital protections for students in our nations schools which were eroded by controversial regulations implemented during the previous Administration.

It goes on to state:

Through the proposed regulations, the Department reaffirms its core commitment to fundamental fairness for all parties; protecting freedom of speech and academic freedom; and respect for the autonomy and protections that complainants need and deserve when they come forward with a claim of sex discrimination.

This would be the fact sheets only reference to Freedom of Speech, and more importantly there is no hint to just how that right would be protected in light of the following from the Dept. of Education:

The proposed regulations would cover all forms of sex-based harassment, including unwelcome sex-based conduct that creates a hostile environment by denying or limiting a persons ability to participate in or benefit from a schools education program or activity.

And with that little phrasecreating a hostile environmentThe Department of Education opens the door for weaponizing Title IX to further curtail freedom of thought and speech in an educational environment.

Most of the Education Departments expanding focus appears to center on how transgenderism and transgenders themselves are going to be addressed at publicly funded institutions. In that regard, schools have curtailed speech that they consider complicit in creating a hostile environment for transgenders by using institutional policies or falling back on the provisions of Title IX.At least two California universities have already laid the groundwork for curtailing expression with written policy. At the University of the Pacific in Stockton, the Title IX coordinator (yes, each institution accepting federal funds is required to employ one) released auniversity policy that stated:

Misgendering is the intentional or unintentional use of pronouns or identifiers that are different from those used by an individual. Unintentional misgendering is usually resolved with a simple apology if someone clarifies their pronouns for you. Intentional misgendering is inconsistent with the type of community we hold ourselves out to be. We all get to determine our own gender identity and expression, but we dont get to choose or negate someone elses.

The statement went on to identify deadnaminga relatively new term in the transgender vernacularwhich is defined as using a transitioning or transitioned individuals previous name as a form of harassment and bullying.

In 2020, the University of California system set forth policy that also defines deadnaming and further allows students and alumni to alter names on official UC documents such as diplomas without a legal name change. This was codified in California state law with the signing of Assembly Bill 245 in 2021.

While the new Title IX guidelines set forth by the Biden administrations Dept. of Education do not specifically require institutions to prohibit misgendering or stifle speech regarding gender ideology, there are those that fear that these new regulations will do just that, or at the very least give the typical progressive school campus cover to do so.

But what happens when speech code police on college campuses run afoul of the U.S. Constitution and its First Amendment governing freedom of speechspecifically when it comes to misgendering or refusing to employ preferred pronouns? To date, students, faculty, and staff have been subjected to censorship and other sanctions for violating campus speech codes in this regard. However, when challenged in court these punishments dont necessarily carry the day.

In 2018 at Shawnee State University, a public institution in Ohio, a professor was sanctioned for refusing to employ a students preferred pronouns. Citing his First Amendment right to free speech and free exercise of religion, the professor sued. The 6th Circuit Court of Appeals backed his claims, and the university was forced to settle with the professor.

Closer to home, the 3rd District California State Court of Appeals ruled last year that parts of SB 219 governing nursing homes and skilled nursing facilities violation of which could result in fines and/or imprisonmentwere unconstitutional. Specifically, the justices took issue with the clause that reads:

Willfully and repeatedly fail to use a residents preferred name or pronouns after being clearly informed of the preferred name or pronouns.

The unanimous opinion reads in part:

The penalty for referring to patients in a manner inconsistent with their identities restricts more speech than is necessary to achieve the governments compelling interest in eliminating discrimination.

We recognize that misgendering may be disrespectful, discourteous, and insulting, and used as an inartful way to express an ideological disagreement with another persons expressed gender identity, but the First Amendment does not protect only speech that inoffensively and artfully articulates a persons point of view.

The Courts opinion seems unambiguous here and certainly begs the question, if this applies to long term care and skilled nursing facilities, how could it not apply to other institutions such as those governed by Title IX?

The expanding language of Title IX, and more importantly the expanding use of the act to limit if not stifle speech appears to be on a collision course with the First Amendment. This will all no doubt need to be sorted out in a court near you-or perhaps a court some three thousand miles away in Washington. That particular court as of late seemingly holds the tenets of our constitution in high, if not supreme regard.

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Expansion of Title IX Tramples First Amendment - California Globe

Dahlia Lithwick will give a lecture in the Osher Lifelong Learning Auditorium on Sept. 15 addressing Supreme Court decisions, such as Roe v. Wade and the separation of church and state.

Dahlia Lithwick, an award-winning journalist, writer, and lawyer, is speaking at Florida Atlantic University on Sept. 15 in celebration of Constitution Day. Her goal is to educate the community about Supreme Court decisions, such as Roe v. Wade and the separation of church and state, all of which impact First Amendment freedoms.

FAU students, faculty, and staff can attend the event at the Osher Lifelong Learning Auditorium for free with their FAU ID. The first 200 tickets claimed will come with a copy of Lithwicks book Lady Justice: Women, the Law, and the Battle to Save America, which attendees will have the opportunity to get signed at the event. FAU students, faculty, and staff can get tickets at http://www.fauevents.com, and members of the public can get tickets for $25 by making an account.

Director of the School of Communication and Multimedia Studies (SCMS), Carol Mills, believes Lithwick will help continue the tradition of the SCMS selecting journalists who are knowledgeable on the issues of freedom of the press. The school is responsible for selecting the keynote speaker, and for this year, the school chose Lithwick.

Although students may enter college thinking primarily about their career trajectory, they should also be preparing to be civically engaged citizens in a democratic society, Mills said. Events like Constitution Day, and the Breezeway Dialogue Series, help all students become more aware of the key issues and concerns that shape our world.

Lithwick is a senior editor at Slate, where she has been writing since 1999 and has also been published by The New York Times, Harpers, The New Yorker, The Washington Post, The New Republic, and Commentary. She is also the host of Amicus, Slates award-winning biweekly podcast about the law and the Supreme Court. She also frequently appears as a commentator on MSNBC.

Dahlia Lithwick is a perfect person [for this event], I would say because she is one of the foremost journalists and commentators covering the Supreme Court today, said journalism professor and event organizer Ilene Prusher.

She hopes that people who attend this event will have an easier time being able to connect the dots between Supreme Court decisions and how they will impact First Amendment freedoms.

[Lithwicks] knowledge of [law] is simply extraordinary. She has an incredible knack for being able to break down legal issues that are both understandable and engaging, Prusher said.

As of late, Lithwick has taken a dim view of the direction the current Supreme Court has taken in regard to personal freedoms.

Published on Slates website, Lithwick says, As the conservative supermajority that controls the Roberts court careens through the remainder of this term, take note of which types of people deserve privacy and spiritual dignity, and the right to be let alone, and which do not.

Lithwick and her staff did not respond to requests for comment by the time of publication.

Jessica Abramsky is a contributing writer for the University Press. For more information on this article or others, you can reach Jessica at [emailprotected]

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Award-winning journalist and lawyer to speak at FAU on First Amendment freedoms for Constitution Day - University Press

Arizona State University

Michael Scott

A lawsuit filed by theAmerican Civil Liberties Union (ACLU)and some local media outlets is challenging the constitutionality of a new Arizona law, which prevents people from filming police within 8 feet of the officer.

There is an exception for people who are themselves the subject of the police action. The groups suing argue it violates the First Amendment rights of those who want to record what the police are doing and those who want to see what police are doing.

Without an injunction, the law will take effect later this month.

Attorney General Mark Brnovich, by the way, says he will not defend the law in court. In filings, he said itd be up to county prosecutors, not his office, to decide whether or not to pursue charges, so those offices should be the ones defending the law. Both the Maricopa County Attorney and Sheriffs offices have also said they will not defend the law or oppose the request to block it from taking effect.

Michael Scott says the law seems to be aimed at addressing a challenge police officers face: giving them the space to do what they need to do without undue interference or obstruction. But Scott also says that competes with another legitimate interest the public hasthe ability to observe and record what police are doing.

Scott is a former police officer and a clinical professor in Arizona State Universitys School of Criminology and Criminal Justice.

The Show spoke with him to learn about the conflict.

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Law preventing police filming struggles to balance First Amendment with space for officers' duties - KJZZ

President Joe Bidens Philadelphia speech was certainly something to behold. An orchestrated attack on half the citizens of this country. An attempt to classify an entire political party as extremist. In effect, Biden was calling for a one-party state. Its also worth noting that Bidens speech was written for him, by those who effectively control the Biden regime. And that speech was effectively sanctioned by the White Housebecoming, in a very real sense, the official position of the executive branch of our government. If you doubt this, take a look at some of the tweets that were sent out under Bidens official accountsincluding the White House account. And it was only a week earlier that Biden referred to the MAGA philosophy as semi-fascism.

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Biden's Censorship Enterprise Is an Assault on the First Amendment | Truth Over News - The Epoch Times

John Compere| Abilene Reporter-News

The Constitution was born Sept. 17, 1787, when signed by delegates to the Constitutional Convention.

Constitution Day is our annual national observance each Sept. 17 - Saturday, this year - commemorating creation of the United States of America and celebrating American citizenship.

Knowledge of our Constitution and its significance begins with the Constitution itself. The Preamble states six secular reasons our nation was founded by and for We the People. The Constitution establishes our secular democratic government.

James Madison, know as the Father of the Constitution," proclaimed this is derived from the superior power of the people. (public speech, June 6, 1788). George Washington, Father of Our Country, wrote The Constitution is a guide which I will never abandon. (public letter, June 22, 1792).

The Constitution provides three separate and equal government branches for check and balance on power. The legislative branch enacts law (Article I), executive branch executes law (Article II), and judicial branch interprets law (Article III).

Article V provides two ways to amend the Constitution:

The 1791 Bill of Rights (first 10 Amendments) and later amendments provide our individual liberties. The 14th Amendment guarantees all persons born or naturalized in the United States are American citizens and citizens of the state where they reside.

Most Americans do not know what our Constitution provides regarding religion (Pew Research). The secular Constitution contains no religious deity reference. Article VI commands no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States lawfully separating religion from government and protecting government from religion.

The 1st Amendment provides our historic trinity of religious liberties :

It lawfully separates government from religion, protects religion from government and requires government neutrality regarding religion.

1st Amendment genesis was the landmark 1785 Virginia Religious Freedom Statute authored by Thomas Jefferson and James Madison that separated church and the state in Virginia and mandated no one shall be compelled to frequent or support any religious worship, place, or ministry whatsoever. Our 1st Amendment also provided a basis for Article 18 of the United Nations Universal Declaration of Human Rights declaring everyone shall have the right to freedom of thought, conscience and religion.

We were the first nation in history established without acknowledging higher authority (emperor, monarch, dictator, deity, religion, scripture, etc). There were no public prayers during the 116 day Constitutional Convention. When independence was declared in 1776, less than 20% of colonists belonged to religion establishments. Today, less than 50% of Americans belong to a church, synagogue or mosque (Gallup) and one in three Americans identify as non-religious or Nones (Pew Research).

Our Constitution created a secular government and not one based on religion. The 1797 Treaty of Tripoli confirmed this to the world - the government of the United States of America is not in any sense founded on the Christian religion. This international legal document was negotiated during 1st President George Washington's administration, unanimously ratified by the US Senate and signed by 2nd President John Adams.

World history records the human harm when governments and religion combined. Separation of church and state is a liberty of free people keeping government and religion separate originating during the European Age of Enlightenment. Most Americans (73%) agree religion should be separate from government (Pew Research). Jesus even separated government and religion (Matthew 22:21; Mark 12:17).

It is important to note Native-American contribution has been officially acknowledged -the confederacy of the original Thirteen Colonies into one republic was influenced by the political system developed by the Iroquois Confederacy as were many of the democratic principles which were incorporated into the Constitution itself. (100th US Congress Resolution).

America has endeavored 235 years establishing and expanding individual liberties for Americans.

We are one nation under our Constitution and it is the Constitution in which we must trust. We can celebrate with patriotic pride our American Constitution and citizenship.

John Compere lives in Callahan County.

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Light the candles! Our American Constitution is 235 years old - Abilene Reporter-News