Former Indiana University Professor Mark McPhail faced retaliation for being outspoken on issues of race and diversity on campus, according to a new lawsuit. (Photo courtesy Indiana University)

by Josh Bleisch

Mark McPhail, a former communications professor at Indiana University Northwest in Gary, Indiana, has sued the university and administrators last month for retaliating against his exercise of First Amendment rights, among other things. The lawsuit alleges IU Northwest fired McPhail after he criticized the selection of the person appointed to lead a reorganized School of the Arts and spoke out about racism and diversity efforts. McPhail seeks reinstatement to his tenured position and damages to compensate for lost salary.

IU Northwest initially hired McPhail in 2015 as executive vice chancellor for academic affairs with an appointment as professor of communication with tenure. He resigned from his administrative position and assumed his tenured professorship a year later.

During his time on the faculty, McPhail has been outspoken on issues of race and diversity at his institution. He hosted a public forum in 2018 titled Diversity: An unfulfilled promise at IU Northwest that included members of the Indiana state legislatures Black Legislative Caucus and identified ways IU Northwest had failed to support black students. McPhail argued, overemphasis on institutional diversity initiatives can obscure or frustrate progress.

McPhails complaint alleges that the day after he appealed, IU terminated his employment by sending police to his home.

McPhail also spoke out on matters of university governance. When IU Northwest announced it would merge its Departments of Fine Arts and Performing Arts with the Department of Communication Studies to create a new School of the Arts, McPhail criticized the administrations process for selecting the new schools dean. He argued at the time that IU Northwest selected a dean without a search and without sufficient transparency under university policy. As a result, McPhail alleges, IU Northwest transferred him to IU Bloomington for two years.

Upon his return, McPhail alleges the dean refused to communicate with him about his course assignments and refused to assign him certain courses because McPhail had told IU the deans appointment violated university policy. When the time came for his first performance review after returning, the dean characterized McPhails teaching as inadequate, relying on unspecified reports about his reputation as a teacher and the number of students who failed his class.

Things came to a head when McPhail attempted to defend himself against the deans characterization of his performance. The dean said that, because McPhail had attempted to shift the blame, he would recommend that the university suspend McPhail from teaching and reduce his salary by 75%. IU Northwests executive vice chancellor agreed and did just that.

The situation got even stranger after McPhail attempted to appeal that decision. McPhails complaint alleges that the day after he appealed, IU terminated his employment by sending police to his home with a termination letter. The reason the university gave for its drastic action was that McPhail made a threat of physical violence by saying words to the effect that the only way to end racism is to kill all white people.

Rhetorical hyperbole, or even the endorsement of violence, does not exclude a particular statement from constitutional protection.

McPhail in his complaint disputes saying that or anything to the effect. But even if he had, that speech would be protected under the First Amendment. Despite what IU Northwest says, McPhails purported statement is not a true threat that would fall outside of First Amendment protection. A true threat is a statement by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. Rhetorical hyperbole, or even the endorsement of violence, does not exclude a particular statement from constitutional protection.

FIRE will be closely watching McPhails lawsuit as he fights to vindicate his First Amendment rights and get his job back.

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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Fired for criticizing his administration and discussing racism, Indiana professor sues - Foundation for Individual Rights in Education

In the landmark case Engel v. Vitale in 1962, the Supreme Court ruled that school-sponsored prayer in public schools violated the Establishment Clause of the First Amendment breaching the constitutional wall of separation between church and state.

Do you think prayer has any place in public, state-financed schools? Why or why not?

On April 25, the Supreme Court heard arguments in the case of Joseph Kennedy, a football coach at a public high school in Washington State, who was told by the school board that he could no longer offer prayers on the 50-yard line after games.

In Coachs Prayers Prompt Supreme Court Test of Religious Freedom, published before the arguments before the Supreme Court, Adam Liptak writes about the case and its potential implications for society:

BREMERTON, Wash. Joseph Kennedy, who used to be an assistant coach for a high school football team near Seattle, pointed to the spot on the 50-yard line where he would take a knee and offer prayers after games.

He was wearing a Bremerton Knights jacket and squinting in the drizzling morning rain, and he repeated a promise he had made to God when he became a coach.

I will give you the glory after every game, win or lose, he said, adding that the setting mattered: It just made sense to do it on the field of battle.

Coaching was his calling, he said. But after the school board in Bremerton, Wash., told him to stop mixing football and faith on the field, he left the job and sued, with lower courts rejecting his argument that the board had violated his First Amendment rights.

The Supreme Court will hear arguments in the case on Monday, and there is good reason to think that its newly expanded conservative majority will not only rule in Mr. Kennedys favor but also make a major statement about the role religion may play in public life. The courts decision, expected by June, could revise earlier understandings about when prayer is permitted in public schools, the rights of government employees and what counts as pressuring students to participate in religious activities.

The two sides offer starkly different accounts of what happened and what is at stake. To hear Mr. Kennedy tell it, he sought only to offer a brief, silent and solitary prayer little different from saying grace before a meal in the school cafeteria. From the school boards perspective, the public nature of his prayers and his stature as a leader and role model meant that students felt forced to participate, whatever their religion and whether they wanted to or not.

The community in Bremerton appeared to be largely sympathetic to Mr. Kennedy, who is gregarious, playful and popular. But the school boards Supreme Court brief suggested that some residents opposed to prayer on the football field may have hesitated to speak out given the strong feelings the issue has produced.

District administrators received threats and hate mail, the brief said. Strangers confronted and screamed obscenities at the head coach, who feared for his safety.

Rachel Laser, the president of Americans United for Separation of Church and State, which represents the school board, said, What were focused on is the religious freedom of students.

Going to the 50-yard line directly after the game when youre the coach, with the students assuming theyre supposed to gather with the coach, and praying at that time puts pressure on kids to join, she said.

Mr. Liptak provides some constitutional background on prayer in public school:

Over the last 60 years, the Supreme Court has rejected prayer in public schools, at least when it was officially required or part of a formal ceremony like a high school graduation. As recently as 2000, the court ruled that organized prayers led by students at high school football games violated the First Amendments prohibition of government establishment of religion.

The delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship, Justice John Paul Stevens wrote for the majority.

Mr. Kennedys lawyers said those school prayer precedents were not relevant because they involved government speech. Rather, they said, the core question in Mr. Kennedys case is whether government employees give up their rights to free speech and the free exercise of religion at the workplace.

The school district, its lawyers responded, was entitled to require Mr. Kennedy to stop praying as he had. Regardless of whether Kennedys very public speech was official, the district could regulate it, the school districts Supreme Court brief said. His prayer practice wrested control from the district over the districts own events, interfered with students religious freedom and subjected the district to substantial litigation risks.

The sweep of the Supreme Courts decision may turn on which sides characterization of the facts it accepts. But even a modest ruling in Mr. Kennedys favor, saying that his private, solitary prayer was protected even if it took place in public and at least tacitly invited students to participate, would represent a sea change in the courts approach to the role religion may play in public schools.

Students, read the entire article, then tell us:

Does prayer have any place in school? Why or why not? How do you think we should navigate the tension between individuals First Amendment right to freely exercise their religious beliefs and the separation between church and state? How do your own religious views shape your opinion?

What is your reaction to the case of Kennedy v. Bremerton School District, which is now before the Supreme Court? What do you see as the most important facts in the case?

Do you think the Bremerton School District violated Mr. Kennedys First Amendment rights? Or was the board entitled to require that its employees refrain from public prayer if students were likely to feel coerced into participating? Which arguments presented in the article did you find most persuasive? Which less so? Why?

How would you rule if you were one of the nine Supreme Court justices? How do you think they will rule? What impact do you think the ruling will have on the role of religion in public schools?

What questions do you have about the case or the constitutional law around it?

For more information and resources on the question of prayer in public schools, see ProCon.org, the mission of which is to promote civility, critical thinking, education and informed citizenship by presenting the pro and con arguments to debatable issues in a straightforward, nonpartisan, freely accessible way.

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Does Prayer Have Any Place in Public Schools? - The New York Times

CONCORD Why should misinformation be protected under the Constitution? Dont we need laws to ensure that citizens receive truthful information? If you are living in an authoritarian country, the answer is easythe state determines what is true and what is false. But in our democracy, the burden for filtering out truth from falsehood falls on each of us.

New Hampshire Humanities will present Tell Me Lies: The First Amendment & the Right to (Mis)inform on Mon., May 9, 5:30-7:30 p.m., at Stark Brewing Company, 500 N Commercial Street in Manchester.

This discussion will examine the 1964 case New York Times v. Sullivan that protects newspapers from libel suits, even when they publish erroneous statements, and its consequences. Well consider the reasoning behind the Sullivan ruling, how journalists depend on its protection, and what would happen should it be overturned. Rather than endorsing one side of the argument, can we work together to create animated yet productive public debates?

Cost is $15 per person and includes appetizers and one beverage (beer, wine, or non-alcoholic drink) in the relaxed atmosphere of the Stark Brewing Co. in downtown Manchester.

To register, go to http://www.nhhumanities.org.

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'Tell Me Lies: The First Amendment & the Right to (Mis)inform' - carriagetownenews.com

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The need for the Constitution grew out of problems with the Articles of Confederation, which established a firm league of friendship between the States, and vested most power in a Congress of the Confederation. This power was, however, extremely limitedthe central government conducted diplomacy and made war, set weights and measures, and was the final arbiter of disputes between the States. Crucially, it could not raise any funds itself, and was entirely dependent on the States themselves for the money necessary to operate. Each State sent a delegation of between two and seven members to the Congress, and they voted as a bloc with each State getting one vote. But any decision of consequence required a unanimous vote, which led to a government that was paralyzed and ineffectual.

A movement to reform the Articles began, and invitations to attend a convention in Philadelphia to discuss changes to the Articles were sent to the State legislatures in 1787. In May of that year, delegates from 12 of the 13 States (Rhode Island sent no representatives) convened in Philadelphia to begin the work of redesigning government. The delegates to the Constitutional Convention quickly began work on drafting a new Constitution for the United States.

A chief aim of the Constitution as drafted by the Convention was to create a government with enough power to act on a national level, but without so much power that fundamental rights would be at risk. One way that this was accomplished was to separate the power of government into three branches, and then to include checks and balances on those powers to assure that no one branch of government gained supremacy. This concern arose largely out of the experience that the delegates had with the King of England and his powerful Parliament. The powers of each branch are enumerated in the Constitution, with powers not assigned to them reserved to the States.

Much of the debate, which was conducted in secret to ensure that delegates spoke their minds, focused on the form that the new legislature would take. Two plans competed to become the new government: the Virginia Plan, which apportioned representation based on the population of each State, and the New Jersey plan, which gave each State an equal vote in Congress. The Virginia Plan was supported by the larger States, and the New Jersey plan preferred by the smaller. In the end, they settled on the Great Compromise (sometimes called the Connecticut Compromise), in which the House of Representatives would represent the people as apportioned by population; the Senate would represent the States apportioned equally; and the President would be elected by the Electoral College. The plan also called for an independent judiciary.

The founders also took pains to establish the relationship between the States. States are required to give full faith and credit to the laws, records, contracts, and judicial proceedings of the other States, although Congress may regulate the manner in which the States share records, and define the scope of this clause. States are barred from discriminating against citizens of other States in any way, and cannot enact tariffs against one another. States must also extradite those accused of crimes to other States for trial.

The founders also specified a process by which the Constitution may be amended, and since its ratification, the Constitution has been amended 27 times. In order to prevent arbitrary changes, the process for making amendments is quite onerous. An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification. In modern times, amendments have traditionally specified a time frame in which this must be accomplished, usually a period of several years. Additionally, the Constitution specifies that no amendment can deny a State equal representation in the Senate without that States consent.

With the details and language of the Constitution decided, the Convention got down to the work of actually setting the Constitution to paper. It is written in the hand of a delegate from Pennsylvania, Gouverneur Morris, whose job allowed him some reign over the actual punctuation of a few clauses in the Constitution. He is also credited with the famous preamble, quoted at the top of this page. On September 17, 1787, 39 of the 55 delegates signed the new document, with many of those who refused to sign objecting to the lack of a bill of rights. At least one delegate refused to sign because the Constitution codified and protected slavery and the slave trade.

The process set out in the Constitution for its ratification provided for much popular debate in the States. The Constitution would take effect once it had been ratified by nine of the thirteen State legislatures; unanimity was not required. During the debate over the Constitution, two factions emerged: the Federalists, who supported adoption, and the Anti-Federalists, who opposed it.

James Madison, Alexander Hamilton, and John Jay set out an eloquent defense of the new Constitution in what came to be called the Federalist Papers. Published anonymously in the newspapers The Independent Journal and The New York Packet under the name Publius between October 1787 and August 1788, the 85 articles that comprise the Federalist Papers remain to this day an invaluable resource for understanding some of the framers intentions for the Constitution. The most famous of the articles are No. 10, which warns of the dangers of factions and advocates a large republic, and No. 51, which explains the structure of the Constitution, its checks and balances, and how it protects the rights of the people.

The States proceeded to begin ratification, with some debating more intensely than others. Delaware was the first State to ratify, on December 7, 1787. After New Hampshire became the ninth State to ratify, on June 22, 1788, the Confederation Congress established March 9, 1789 as the date to begin operating under the Constitution. By this time, all the States except North Carolina and Rhode Island had ratifiedthe Ocean State was the last to ratify on May 29, 1790.

One of the principal points of contention between the Federalists and Anti-Federalists was the lack of an enumeration of basic civil rights in the Constitution. Many Federalists argued, as in Federalist No. 84, that the people surrendered no rights in adopting the Constitution. In several States, however, the ratification debate in some States hinged on the adoption of a bill of rights. The solution was known as the Massachusetts Compromise, in which four States ratified the Constitution but at the same time sent recommendations for amendments to the Congress.

James Madison introduced 12 amendments to the First Congress in 1789. Ten of these would go on to become what we now consider to be the Bill of Rights. One was never passed, while another dealing with Congressional salaries was not ratified until 1992, when it became the 27th Amendment. Based on the Virginia Declaration of Rights, the English Bill of Rights, the writings of the Enlightenment, and the rights defined in the Magna Carta, the Bill of Rights contains rights that many today consider to be fundamental to America.

The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.

The Second Amendment gives citizens the right to bear arms.

The Third Amendment prohibits the government from quartering troops in private homes, a major grievance during the American Revolution.

The Fourth Amendment protects citizens from unreasonable search and seizure. The government may not conduct any searches without a warrant, and such warrants must be issued by a judge and based on probable cause.

The Fifth Amendment provides that citizens not be subject to criminal prosecution and punishment without due process. Citizens may not be tried on the same set of facts twice and are protected from self-incrimination (the right to remain silent). The amendment also establishes the power of eminent domain, ensuring that private property is not seized for public use without just compensation.

The Sixth Amendment assures the right to a speedy trial by a jury of ones peers, to be informed of the crimes with which one is charged, and to confront the witnesses brought forward by the government. The amendment also provides the accused the right to compel testimony from witnesses, as well as the right to legal representation.

The Seventh Amendment provides that civil cases preserve the right to trial by jury.

The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments.

The Ninth Amendment states that the list of rights enumerated in the Constitution is not exhaustive, and that the people retain all rights not enumerated.

The Tenth Amendment assigns all powers not delegated to the United States, or prohibited to the States, to either the States or to the people.

Learn more about the Constitution

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The Constitution - The White House

Editorial writers delve into these public health topics.

USA Today:Teletherapy Across State Lines Is Constitutionally Protected SpeechLike so many other therapists across the nation throughout the pandemic, Elizabeth Brokamp used online video technology to talk with one of her clients about family struggles, COVID-19 anxiety, an engagement and a looming job change. Unfortunately, that last one meant these conversations eventually turned from "counseling"into "crimes."Not because anything changed about the client or her needs, but because the job change meant the client moved across state lines so Brokamp's helpful conversations were suddenly forbidden by the government. (Rob Johnson, 4/25)

The New York Times:Congress Has To Ask How Much McKinsey Hurt The F.D.A.The managing partner of the global consulting firm McKinsey will testify before Congress on Wednesday to respond to a stunning congressional report revealing that his companys consultants were simultaneously working for Purdue Pharma, the manufacturer of the opioid OxyContin, and the Food and Drug Administration. As McKinsey was sending what one consultant called a mini army to serve Purdue Pharma which would later declare bankruptcy while facing thousands of lawsuits over its role in the opioid epidemic it was advising the F.D.A. on how to organize the offices overseeing the safety of opioids and other medications. (Joshua M. Sharfstein, 4/26)

Columbus Dispatch:Medicare Advantage Reimbursement Rates Must Be Kept StableIf weve learned anything from the pandemic, its that ensuring access to health care services and treatments for everyoneparticularly for more vulnerable patients like seniors and those living with disabilitiesis not just the right thing to do, but it is an absolute necessity to ensure a stronger health care system. (Dontavius Jarrells, 4/26)

Chicago Tribune:Hospitals Are Doing More To Tackle Chicago Gun Violence Than Treating Gunshot WoundsIn 2018, I launched a partnership of the 10 major hospitals serving Chicago on a project to address the root causes of violence called the Chicago HEAL Initiative. Recently, we released a report on the progress made over three years and the ways that hospitals are reaching beyond their walls to partner with the community. Under this project, University of Chicago, Advocate Christ, Mt. Sinai, and Stroger-Cook County hospitals are not just stitching up the physical wounds of gunshot patients they are addressing their emotional scars to prevent retaliations. (Dick Durbin, 4/25)

Also

The Atlantic:There's No Knowing What Will Happen When Roe V. Wade FallsEverything about the American abortion war has taken on an air of inevitability. The Supreme Court will reverse Roe v. Wade, the landmark abortion decision establishing a constitutional right to end a pregnancy. The United States will divide along expected lines, with abortion broadly accessible in blue states and all but entirely criminalized in red states. This narrative is not completely wrong. Twelve states have passed so-called trigger bans that will outlaw all or most abortions if Roe and Planned Parenthood v. Casey are overturned. At the same time, 16 states and the District of Columbia have policies guaranteeing abortion rights no matter what the Supreme Court decides. (Rachel Rebouche and Mary Ziegler, 4/25)

Kansas City Star:Abortion A Case Of Religious Freedom, Missouri RepublicansMissouri legislative proposals range from laws to criminally prosecute anyone trying to help someone obtain an abortion in another state to prohibiting abortion after a so-called heartbeat is detected at roughly six weeks. Apparently, that rhythmic cardiac activity in an embryo is now equated with being a fully-formed human. Politicians are culpable for babies born through the force of the state into circumstances that increase their probability of experiencing abuse and neglect. Credible research has identified conditions associated with a greater probability that these children will be physically and/or sexually abused. They include domestic violence, isolation, economic distress, lack of support systems, past family abuse, substance abuse and unintended pregnancy. (Victoria Johnson, 4/26)

Columbus Dispatch:Abortion Ban Would Unfairly Impact Poor And People Of ColorAbortion is legal in Ohio, yet legislators continue to chip away at abortion access in the state. The entire country is awaiting the U.S. Supreme Court decision in Dobbs v. Jackson Womens Health Organization a case that could ultimately overturn Roe v. Wade. However, the weight of this decision hits differently in Ohio, where legislators are considering several bills, two trigger ban laws (Senate Bill 123 and House Bill 598) and one law that would allow private citizens to sue individuals aiding abortions (House Bill 480). (Payal Chakraborty and Danielle Bessett, 4/26)

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Viewpoints: Restricting Teletherapy To Within State Borders Is First Amendment Violation - Kaiser Health News

First Amendment

By Debra Cassens Weiss

April 22, 2022, 11:27 am CDT

Image from Shutterstock.

A federal appeals court has ruled that the University of Central Floridas ban on speech constituting discriminatory harassment likely violates the First Amendment.

The 11th U.S. Circuit Court of Appeals at Atlanta ruled Thursday in an opinion by Judge Kevin Newsom. The Volokh Conspiracy has highlights in a series of posts here, here, here and here.

The appeals court said the discriminatory-harassment policy likely violates the First Amendment because its regulation of constitutionally protected speech appears to be overbroad, content-based and viewpoint-based.

The plaintiff in the case was Speech First, a group that seeks to protect students free speech rights. Its members include Student A, who wants to express views against abortion, affirmative action, illegal immigration and LGBTQ issues. Student B and Student C express similar desires.

All three students say they are reluctant to talk about their opinions because of the universitys policies that ban discriminatory harassment and address bias-related incidents.

The discriminatory-harassment policy bans conduct that unreasonably alters a students participation in a program or activities if the conduct is based on a long list of characteristics that include religion, genetic information and political affiliation. Students are also barred from condoning or encouraging such discriminatory conduct, and they are required to intervene to stop it.

The bias-related incidents policy created a Just Knights Response Team to provide assistance to those who have witnessed a hate-related or bias-related incident.

The 11th Circuit ruled that Speech First had standing and then moved on to the merits.

The discriminatory-harassment policy is staggeringly broad, the appeals court said. It restricts political advocacy and covers substantially more speech than the First Amendment permits.

The policy is also content-based because it requires the university to examine the content of the message to determine whether it is harassment, the appeals court said. Nor does the policy appear to be narrowly tailored because it applies to a wide variety of speech.

Beyond that, the policy likely discriminates based on viewpoint in that it bans speech that is discriminatory, the appeals court said.

In prohibiting only one perspective, UCF targets particular views taken by students and thereby chooses winners and losers in the marketplace of ideaswhich it may not do, the decision said.

A lower court had determined that Speech First didnt have standing. The 11th Circuit remanded the case to allow analysis of the First Amendment claim and a decision on an injunction.

Nowhere is free speech more important than in our leading institutions of higher learning. Colleges and universities serve as the founts ofand the testing grounds fornew ideas, the appeals court said.

Accordingly, it is imperative that colleges and universities toe the constitutional line when monitoring, supervising, and regulating student expression. Despite what we presume to be the very best of intentions, it seems to us substantially likely that the University of Central Florida crossed that line here, the 11th Circuit said.

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University's ban on 'discriminatory harassment' likely violates the First Amendment, 11th Circuit says - ABA Journal

Jurors on Wednesday found the city of Athens, Tennessee, and its city manager and attorney did not retaliate against a local man or violate his First Amendment rights for his speech at city meetings or in a sign painted on the side of a downtown building criticizing the city.

Jurors began deliberations at 5 p.m. Wednesday in the suit filed in U.S. District Court by Athens resident Glenn Whiting, who painted a sign on the side of a downtown building in 2019 criticizing city officials over the handling of a police investigation into a stolen car. The jury reached a verdict around 6 p.m.

Whiting contended in his suit that city officials condemned a building owned by his father-in-law and mother-in-law and ordered it demolished in retaliation for voicing his complaints at city meetings and in the painted message, according to the suit filed Oct. 15 against the city of Athens, City Attorney Chris Trew and City Manager C. Seth Sumner.

The trial before U.S. District Judge Travis R. McDonough began Monday in Chattanooga.

"We appreciate the jurors' decision in the case," the defendants' attorney, Dan Pilkington said in a telephone interview following the verdict. He declined further comment.

Whiting's not quitting yet.

"Obviously it's a disappointing verdict that we didn't think would happen," Whiting said Wednesday in a telephone interview after the verdict. "We believe there are major appealable issues, so we're not done."

Court documents have no image of the painted message at issue, Whiting provided a photo of it in January.

(READ MORE: Athens, Tennessee, city manager suspended for two weeks without pay)

It said: "Witness calls me to tell me about car being stolen out of our building. Called 911 was told wouldn't stop robbery until we prove ownership? Witness confronts thieves they ran for the car and took off. Athens P.D. still refuse to get involved? Car found damaged and radio stolen. APD refusing to talk to witnesses or fingerprint. Met with chief Couch and Seth Sumner who promised to investigate. Well over a year later, key witnesses still not questioned, Mayor Burris refuses to allow me to speak at city council about car. Is this the leadership we want? Time for change!!!"

The downtown building the sign was painted on a different structure than the one that was ordered to be demolished stands across the street from the McMinn County Courthouse facing Jackson Street, a main northbound thoroughfare in downtown Athens. Whiting later painted over the sign.

The building ordered by the city to be demolished is on Pope Street, although court records show it as being on both Pope Avenue and Pope Street.

A mistrial in the case was declared in January when jurors couldn't reach a consensus after deliberating for three days in the first trial of the case. Monday's retrial began before a jury eight including two alternates.

In closing statements, Whiting's attorney, Van Irion, told jurors Wednesday the retaliation his client alleged he suffered met the elements of a First Amendment retaliation case in involving constitutionally protected speech, an adverse action by the city by condemning and ordering the demolition of the family-owned building and proof his painted message and remarks at city meetings led the city to its actions against him.

Irion told jurors Sumner and Whiting are political enemies and Sumner used his position as city manager and his role as the effective judge in a condemnation hearing to retaliate against Whiting by ordering a 1948-era building to be condemned when another building in similar condition wasn't treated in the same way.

Codes officials testified earlier Wednesday about a visit May 20, 2019, based on a complaint when homeless people were found living there in deplorable conditions. There was a hole in the roof, signs of rodents, water damage from the roof all the way to the basement and rotting wood. The condemnation notice was sent out soon after, according to testimony.

Whiting's 88-year-old father-in-law had the impression from city officials his attendance at the condemnation hearing was not required, Irion told jurors, and Whiting hadn't been notified of the hearing. Irion contended Sumner used the situation to order the condemnation and demolition by taking action under a city ordinance that didn't seek to work with the property owners.

(READ MORE: Former Athens, Tennessee, police chief files suit after firing)

Irion said Sumner chose to take the more aggressive solution of condemnation and demolition because of the animosity between Whiting and the city and its officials, not because the owners were unwilling to work on the problems with the building.

He pointed to what he said were contradictory statements by some city officials and told jurors some city employees weren't truthful because they were afraid of Sumner, who is their boss, and they were afraid of losing their jobs.

The defendants' attorney, Dan Pilkington, told jurors the numerous photos entered into evidence of the family's building showed why nearby residents had complained to the city about the family's property.

Pilkington told jurors Whiting was not treated differently than anyone else.

The complaints were that the building was dangerous and that was the reason for the condemnation hearing, the notice and the demolition order, not retaliation, Pilkington said.

Pilkington said Whiting's father-in-law didn't show up at the condemnation hearing, and no one from the family approached city officials about a remedy or to contest the condemnation notice.

"The building met all the standards for condemnation," Pilkington told jurors.

Contact Ben Benton at bbenton@timesfreepress.com or 423-757-6569. Follow him on Twitter @BenBenton.

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Jury sides with Athens, Tennessee, and city officials in First Amendment retaliation case - Chattanooga Times Free Press

(WFXR) Debates over what are appropriate reading materials are nothing new, according to the chair of political science and international relations at the University of Lynchburg, Professor David Richards.

Its something that historically has been going on since books have existed, he said.

Richards says the Supreme Court allows the banning of books in public institutions for two reasons: If the book incites violence against people or the government, or if the book contains obscene material harmful to the community.

Thats basically all they said. So what is obscene? What is community standard? Thats up for debate, said Richards.

Current concerns are that books are being banned due to political beliefs, not legal justifications.

Richards adds that even books with foul language or sexually explicit content are defended by the courts if they have artistic merit or are considered to be widely accepted.

A lot of times those books are books used in literature courses, Richards noted. The bar can be a little different there because students are being made to read these books that they find objectionable.

In Roanoke, people like Evelyn Bumbalough weighed in.

Teachers are the ones that are in the classroom with the students, they have the educational background to decide, she said.

Nathaniel Myers says it should be up to the government, but it should be used lightly.

It should be up to the state to produce a curriculum that is going to be knowledgeable and prepare people for the future and isnt concerned about offending people, he said.

PEN America is an organization that supports literary freedom, and said 2021 was the highest year for banned books on record. In addition to more than 300 banned books last year featuring LGBTQ+ content, more than 400 books have protagonists of color, organizers said. Biographies of Rosa Parks, Martin Luther King Jr., and Cesar Chavez are also included.

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Lynchburg expert discusses the first amendment debate over banned books - WFXRtv.com

Image from Evan El-Amin / Shutterstock.com

During the 2016 presidential primaries, then presidential candidates Donald Trump and Senator Marco Rubio exchanged insults, with Trump calling Rubio Little Marco and Rubio commenting on the size of Trumps hands. Recently, this exchange was the basis for a Federal Circuit decision reversing a refusal to register the trademark TRUMP TOO SMALL as an unconstitutional restriction of speech under the First Amendment.

In 2018, Steve Elster applied to register the mark for use on T-shirts and related apparel. As the Federal Circuit recounts, According to Elsters registration request, the phrase he sought to trademark invokes a memorable exchange between President Trump and Senator Marco Rubio . . . and aims to convey[] that some features of President Trump and his policies are diminutive. The Examining Attorney at the United States Patent and Trademark Office denied Mr. Elsters application under Sections 2(a) and 2(c) of the Lanham Act. On appeal to the Trademark Trial and Appeal Board (TTAB), the TTAB affirmed the refusal of the application, relying solely on Section 2(c) of the Lanham Act.

Section 2(c) of the Lanham Act prohibits registration of a trademark that: Consists of or comprises a name, portrait or signature identifying a particular living individual except by his written consent. 15 U.S.C. 1052(c). Section 2(c) does not prohibit all uses of an individuals name in a trademark. Rather, it applies only when: (1) the public would reasonably assume that the goods associated with the mark are connected with the particular individual due to the individuals fame or recognition; or (2) the individual is publicly connected with the business in which the mark is, or will be, used.

There was no dispute that President Trump is sufficiently famous to fall within the protection of Section 2(c) not only because of his political office but also because of his prior celebrity. Elster argued that refusing to register the TRUMP TOO SMALL trademark violated his right to free speech under the First Amendment. The TTAB noted that as an administrative tribunal, it does not have the authority to strike down any statute as unconstitutional, but noted that a constitutional challenge may involve many threshold questions . . . to which the [agency] can apply its expertise, and went on to find that the refusal to register TRUMP TOO SMALL was not unconstitutional.

The TTAB first opined that Section 2(c), like all of Section 2 of the Lanham Act, merely sets forth criteria for obtaining a federal trademark registration. It does not control the use of the trademark. Indeed, one can use a trademark in commerce without obtaining a registration and Elster could do so here even if the registration is denied. Second, the TTAB found that Section 2(c) does not restrict any particular type of speech, but applies in an objective, straightforward way to any proposed mark that consists of or comprises the name of a particular living individual, regardless of the viewpoint conveyed by the proposed mark. Accordingly, the TTAB affirmed the Examiners refusal to register TRUMP TOO SMALL.

On appeal, the Federal Circuit reversed the TTAB, finding that Section 2(c) is unconstitutional as applied to the TRUMP TOO SMALL trademark, while deferring any decision on whether it is unconstitutional in all cases. The Court noted that trademarks can be protected speech and that denying registration, while not prohibiting use of the trademark, chills speech by stripping the mark of the many advantages associated with federal registration. Accordingly, there must be a substantial government interest to justify restricting speech by denying a registration.

The purpose of the Section 2(c) is to protect state law rights of privacy and publicity that individuals have in their names, appearance, and likeness. The Court quickly found that a right of privacy cannot shield a public official from comment or criticism. The Court also questioned whether a political figure maintains a right of publicity at all. At the very least, the political figures right of publicity would not permit a prohibition on the distribution of posters, buttons, apparel, or other materials that express support for or disagreement with the political figure. In short, [a]s a result of the Presidents status as a public official and because Elsters mark communicates his disagreement with and criticism of the then-Presidents approach to governance, the government has no interest in disadvantaging Elsters speech.

As we reported previously, the Supreme Court has found that portions of Section 2(a) of the Lanham Act, which prohibit the registration of immoral, deceptive, or scandalous trademarks and trademarks which may disparage . . . any persons, living or dead are unconstitutional. While this opinion expands the Supreme Courts reasoning to Section 2(c), whether its reasoning applies to trademarks that do not involve political figures or that do not criticize famous individuals remains to be seen. The Federal Circuit noted that it was only asked to analyze Section 2(c) as applied to Elsters mark. But it did go on to note that Section 2(c) may be impermissibly overbroad because it does not leave the USPTO discretion to permit registration for marks that advance First Amendment interests.

See the article here:

Rights of Privacy and Publicity TOO SMALL to Overcome First Amendment Freedom of Speech - JD Supra

April 22, 2022by Laura Shin

Peter Van Valkenburgh, director of research at Coin Center, discusses a proposed rule by the US Securities and Exchange Commission that has massive implications for the free-speech rights of crypto software developers in the US. Show highlights:

Find out information on the three openings at Unchained and how to apply here:

On April 26th, I will be selling NFT tickets to five 90-minute virtual book clubs in which 22 people can discuss The Cryptopians with me and with each other without worrying about spoilers! Two of the book clubs will also feature special guests.

The sale will go live on Tuesday, April 26, at 1pm ET/10am PT, and tickets will be $100 each. (The sale will be on Bitski, but the NFTs will not be visible until the sale goes live on the 26th): https://www.bitski.com/@laurashin/created

Crypto.com: https://crypto.onelink.me/J9Lg/unconfirmedcardearnfeb2021

Coinchange: https://coinchange.io

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Galaxis: https://galaxis.xyz/

Peter Van Valkenburgh

The SEC Proposal

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Why the SEC's Proposed Rules Affecting DeFi Could Violate the First Amendment - Unchained Podcast