With the holiday season upon us, its the perfect time to reflect on the many things for which we can and should be grateful. And yes, 2021, like the year before it, was a challenging year for most of us. But free speech actually had quite a good year.

Given the state of civil discourse and the human impulse to silence or punish others because of their speech, this may come as a surprise to many. Surely, our free speech culture is a cause for concern. However, if you look more closely, there are also plenty of reasons to be thankful. For example, although America seems more divided today than it has been for the past 50 years, the truth is that Americans are less polarized than we think.

But even if we grant that our free speech culture has seen better days, our First Amendment rights have never been better protected than they are now, at the end of 2021. While our culture continues to try to remind itself that free speech really is a good idea, the judiciary continues to do its job of protecting those freedoms.

So this year, Im thankful for four Supreme Court decisions upholding every Americans First Amendment rights.

Future law students may not appreciate needing to remember the names in the first one, Uzuegbunam v. Preczewski, but the Supreme Courts 8-1 decision will make it easier to vindicate First Amendment rights in court. Georgia Gwinnett College violated the free speech rights of a student by restricting his speech to a small speech zone and then imposing a speech code to censor him because his religious speech disturbed the tranquility of another student. The violation didnt cost Chike Uzuegbunam anything except many months of not exercising his First Amendment rights. Like many government defendants, the college later tried to avoid adjudication and responsibility for its violation of Uzuegbunams free speech rights by changing its policies, arguing that his $1 nominal damages claim wasnt sufficient to keep the case in court if the colleges free speech violations didnt cost him out of pocket. The Supreme Court held that Uzuegbunams free speech rights were priceless, not worthless, and his case could go forward. This resolves an important question and makes it much more likely that campus and other free speech claimants will get their day in court.

Second is Mahanoy Area School District v. B. L., which will forever be known as the cursing cheerleader case. The 8-1decision in this case affirms that in all but the rarest circumstances, a public schools jurisdiction over student speech ends at the schoolhouse gate. Parents, not principals, should be the ones policing a students social media posts during nonschool hours. While not a home run, the decision was a solid double for free speech. And importantly, it avoided the strikeout scenario, in which the court could have opened the door wide to public schools policing their students speech during nonschool hours.

Third is our own case: Americans for Prosperity Foundation v. Bonta. This 6-3 decision protects and reaffirms the freedom to support causes and charities anonymously. In reaffirming its decision in NAACPv.Alabama, the court held that the California attorney general could not collect data on charitable contributions for tens of thousands of charities all over the country. A former executive director of the NAACP described the case as one of the most significant wins for civil rights in decades. Underscoring this point is the most diverse set of organizations ever on one side of a constitutional case in the Supreme Court.

Finally, I am grateful for Fulton v. City of Philadelphia. Philadelphia had disqualified a Catholic foster parent placement service because of the stated views of Catholic clergy about foster parent placements with same-sex couples. As we argued to the court, free and voluntary association to address social ills is crucial to maintaining our system of government. Throughout our nations history, fights for civil rights have relied on the simultaneous exercise of civil liberties, including this ability to associate freely. Excluding some volunteers from working to address a problem on the basis of their views would imperil ... the very building blocks of civil society. As in Mahanoy, the court failed to go as far as it could have, but it did side unanimously with the Catholic foster placement agency, protecting its freedom to continue to serve children and foster parents in Philadelphia. This was a win for pluralism and First Amendment rights.

As we enjoy the holidays and close in on the end of 2021, when youre tempted to be despondent about the state of our politics and culture, remember that there are bright spots to be appreciated. You get to watch Alabama in the College Football Playoff (maybe thats just something Im happy about), and your First Amendment rights are on firmer footing now than theyve ever been as we leave 2021 behind. Heres to using those freedoms more in 2022.

Casey Mattox is the vice president for legal and judicial strategy atAmericans for Prosperity.

Read more:

First Amendment rights are reason for cheer this holiday season - Washington Examiner

This week in my POLS 117 (freedom of speech) class at UW-Eau Claire, we end the semester by discussing the freedom of expression on the internet. To understand constitutional protections for expression online, it is useful to recount how the U.S. Supreme Court has interpreted the First Amendment to apply to media that emerged earlier in American history.

The Court has not always found the same level of protection for expression in newer media as it has for the printed word and speech uttered in person. For instance, in Mutual Film Corporation v. Industrial Commission of Ohio (1915), the Court found that movies received no First Amendment protection. The Court overturned this in Burstyn v. Wilson (1952), when the justices held that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.

The Supreme Court maintains that the First Amendment permits the Federal Communications Commission (FCC) to restrict more expression in broadcast media (radio and television) than the government may regulate in print media. In cases like Red Lion Broadcasting v. FCC (1969) and FCC v. Pacifica Foundation (1978), the Court ruled that the government possesses greater power over broadcast media due to three factors: (1) the long history of its regulation, (2) the scarcity of available frequencies, and (3) its invasive nature.

What about the internet? The foundational case is Reno v. ACLU (1997), where the Court ruled that the government does not possess greater regulatory power online like it does for broadcast media. Regarding the three factors above, the Court in Reno found that those factors are not present in cyberspace.

Put another way, in 1997 there was no long history of government regulation of the internet, there was no structural limit to how many people could produce online content, and the internet was not deemed to be invasive. Therefore, the governments power to regulate the internet is more restricted by the First Amendment. In Reno, the Court spoke positively of the internet as a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers.

As for social media, the Court in Packingham v. North Carolina (2017) reasoned that a fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court went on to state the following: While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace the vast democratic forums of the Internet in general, and social media in particular. Thus, the Court scrutinizes government attempts to ban people from social media.

What about persons who have their accounts removed or suspended by social media companies? While the Constitution protects ones free expression rights from being violated by the government, American courts have not found that the First Amendment restricts what social media companies may do regarding user accounts.

The basis of this approach can be found in a case involving a privately-run cable company, Manhattan Community Access Corporation v. Halleck (2019), where the Supreme Court stated that the Free Speech Clause of the First Amendment constrains governmental actors and protects private actors. Other federal courts have used this reasoning in recent cases to protect social media companies which as private actors possess their own First Amendment rights from laws that would restrict those companies abilities to moderate content or ban/suspend users.

The Supreme Court could eventually overrule or modify some of these precedents, just as it did when overturning Mutual Film Corporation in Burstyn to reinterpret First Amendment protections for movies. Although there are legitimate questions about what powers the government has under the Constitution to regulate social media companies, those companies have not been found to be state actors. Individuals who disapprove of social media companies policies can use their own First Amendment rights to advocate that those companies change their policies. The scope of what the First Amendment protects online is shaped by the Reno, Packingham, and Manhattan Access cases.

Eric T. Kasper is a professor of political science and the director of the Menard Center for Constitutional Studies at UW-Eau Claire. He also serves as the municipal judge for the City of Rice Lake and is a member of the Wisconsin Bar Association.

Continue reading here:

Ink Blog: The First Amendment and the internet - Ashland Daily Press

SAN DIEGO (KUSI) The San Diego Unified School District Board of Education Tuesday will consider adopting a set of rules for debates and public comment periods at its board meetings in response to a rise in hate speech and unruly behavior at public meetings both locally and nationally.

The board will consider the Code of Civil Discourse, authored by the National Conflict Resolution Center, at its Tuesday meeting.

The district says most often, the unruly or vitriolic speech is made in response to hot- button topics such as vaccine mandates and the mistaken belief schools are teaching critical race theory, officials said.

Its so important for every public agency to model civility and respect at this point in our nations history, but school boards need to always remember that the way we conduct ourselves sets a model for our students, San Diego Unified School Board President Richard Barrera said in a statement. We are grateful that National Conflict Resolution Center, our longtime partner, is taking a leadership role in advocating that public meetings throughout San Diego county are conducted in a way that allows honest, open, and respectful dialogue even when and especially when we disagree with each other.

According to a district statement, hate speech and disorderly conduct at public meetings have become a major problem for local government bodies nationwide and it has reduced public officials ability to do their jobs and serve their communities effectively.

The Code of Civil Discourse, which was first established by the National Conflict Resolution Center in 2015, is intended to serve as a guide for facilitating civil, respectful discussions of opposing views during public meetings.

Our democracy depends on our ability as Americans to have civil discussions that constructively air different points of view, according to Steven Dinkin, president of the National Conflict Resolution Center, which is based in San Diego. Without this, our elected leaders cannot get things done, and our communities suffer.

However, when ground rules are established and adhered to, it is possible to express views on polarizing topics in a civil, respectful manner and work toward solutions that benefit all involved, Dinkin said. The Code of Civil Discourse is intended to encourage productive conversations about policy issues, no matter how strongly-held the views are on either side, while still respecting all participants First Amendment rights.

Last month, in response to a contentious meeting in which some members of the public used racist and threatening language, the county Board of Supervisors approved the same code.

The change for that body added a series of policies, including:

Reading a statement on the countys policy regarding discrimination and harassment into the record during the meeting;

Prohibiting disruptive conduct, including but not limited to loud or threatening language, whistling, clapping, stamping of feet, speaking over or interrupting the recognized speaker;

Creating parameters for group presentations allowing them only to be given for land use or adjudicatory matters as well as a maximum time period of four minutes for individual members of each group within the 10-minute maximum;

Limiting public comment to one minute per person if there are more than 10 individuals wishing to comment, under the Brown Act;

Adopting a consent calendar for routine or administrative items for which debate is not anticipated;

Asking members of the public to bring their own technology to provide presentations; and

Codifying continued allowance of remote participation by the public to participate in board meetings.

Earlier this year, NCRC partnered with UC San Diego to form the Applied Research Center for Civility, the nations first-ever research center dedicated to conflict resolution, civility and bridging political divides, according to a statement from the center.

See the original post:

SDUSD to consider a set of rules for public comment at it's board meetings 'while still respecting all participants' First Amendment rights' - - KUSI

Michael Cohen, the former attorney for Donald Trump, has issued a defiant message about his legal fight after filing a lawsuit that claimed his return to federal prison was punishment for writing a critical book about the ex-president.

In December 2018, Cohen was given a three-year sentence for crimes including tax evasion, campaign finance violations and lying to Congress.

But in May 2020, Cohen was allowed to serve his sentence at home due to the COVID pandemic, during which he made public statements about the publication of his book, Disloyal: The True Story of Michael Cohen, Former Personal Attorney to President Donald J. Trump.

Cohen was ordered back to prison, with officials saying he had not accepted certain terms of his release.

U.S. District Judge Alvin K. Hellerstein ordered Cohen to return to home confinement after saying that his transfer back into custody was a "retaliatory" measure, thwarting his "First Amendment rights to publish a book critical of the president and to discuss the book on social media."

Cohen's lawsuit was filed in a Manhattan federal court on Thursday and names Trump, former Attorney General William Barr and federal prison officials.

It said that upon his return to jail, he was held in solitary confinement for 16 days in a small cell in Otisville, New York. There he suffered shortness of breath, severe headaches and anxiety.

According to the suit, Cohen was "retaliated against" for exercising his First Amendment rights and says he seeks "redress for the extreme physical and emotional harm he suffered as a result of the conduct of all defendants and for the pain and suffering he continues to experience."

On Thursday, Cohen shared a Bloomberg article of news of the lawsuit and added the message: "I will never stop until all of these animals who seek to destroy our democracy are held accountable for their unconstitutional and immoral acts!"

Jeffrey K. Levine, an attorney for Cohen, told The Associated Press, "without accountability, we have only chaos."

The suit says Cohen was the victim of a long line of "retaliatory measures" taken by Trump and his associates "in the weaponization of his administration against his enemies."

It also referred to attempts to stop books critical of Trump written by former security adviser John Bolton and the ex-president's niece, Mary Trump.

Cohen spent over 13 months in prison and another year and a half in home confinement. He had faced campaign finance charges connected with helping arrange payments during the 2016 presidential race to silence claims by adult film star Stormy Daniels and model Karen McDougal about affairs with Trump that the ex-president has denied.

Cohen has made public calls for Trump to be prosecuted and has given information to New York prosecutors looking into whether the ex-president misled banks or tax authorities about the value of his assets to get loans or tax breaks.

Newsweek has contacted Trump and the U.S. Bureau of Prisons for comment.

Read more from the original source:

Michael Cohen Says He 'Will Never Stop' After Suing Donald Trump - Newsweek

Mississippi had actually filed its abortion appeal in the previous term, in June 2020, when Justice Ginsburg was still alive, but it wasnt until nearly a year later, this past May, that the court agreed to hear it. The case, Dobbs v. Jackson Womens Health Organization, met none of the usual criteria for deciding whether to hear a case: In overturning the states ban on abortion after 15 weeks of pregnancy, the United States Court of Appeals for the Fifth Circuit simply applied binding precedent, and there was no dispute among the lower federal courts for the Supreme Court to resolve. What the case offered was a vehicle the newly empowered anti-abortion supermajority was waiting for.

The decision to hear the New York gun case, New York State Rifle & Pistol Association v. Bruen, came after years during which the court sidestepped multiple opportunities to expand on the Heller decision, to the frustration of Justices Clarence Thomas and Samuel Alito, who had taken to complaining that their colleagues were turning the Second Amendment into a second-class right. Their protests finally bore fruit in March of this year, when the court accepted an appeal filed by a National Rifle Association affiliate.

The grant of review in the Maine religious schools case came at the very end of the last term. The grant itself was no surprise; the case is tailor-made to complete a project that Chief Justice Roberts has approached incrementally with the clear goal of enabling religious institutions to enjoy the same public benefits as secular institutions.

His mentor and predecessor, Chief Justice William H. Rehnquist, had a similar goal but lacked the votes, or perhaps the will, to see it to completion. One of his last major opinions, Locke v. Davey in 2004, held that while a state could choose to subsidize religious education, it was not required by the First Amendments Free Exercise Clause to do so. There needed to be play in the joints, Rehnquist wrote, connecting the First Amendments two religion clauses, one that protects the free exercise of religion and the other that prohibits religious establishment by the government.

The new case would transform the permissive into the mandatory, asking the court to rule that Maine cannot exclude religious schools from a program that, in school districts too small to have their own high schools, offers tuition reimbursement to parents who choose to send their children to a private school.

The line Maine drew for its tuition program was based on the states concern that to channel public money to the coffers of parochial schools that provide religious instruction, even though it is a program that relies on parental choice, would violate the Establishment Clause. The United States Court of Appeals for the First Circuit upheld the exclusion on the ground that the programs purpose was to duplicate, for children lacking access to a local public high school, the religiously neutral education that a public high school offers. During the oral argument, the conservative justices seemed unable to grasp that simple proposition. They insisted to the states lawyer, Chief Deputy Attorney General Christopher Taub, that some kind of rank anti-religious discrimination was afoot.

Mr. Taub readily agreed with Justice Brett Kavanaugh that a state could not subsidize tuition at the schools of one faith while withholding the subsidy from schools of other religions; that would be discrimination, obviously. But Justice Kavanaugh wanted more. Our case law suggests that discriminating against all religions, as compared to secular, is discriminatory just as it is discriminatory to say exclude the Catholic and the Jewish and include the Protestant, he told Mr. Taub. While the courts recent precedents may suggest such an equal-footing principle when it comes to public education, they arent quite there yet. They soon will be. The Establishment Clause, long understood as a barrier to taxpayer subsidy of religious education, was almost completely absent from the argument. Its absence will be more than rhetorical if the challenge to the Maine program succeeds.

See the rest here:

Opinion | Trump Weaponized the Supreme Court - The New York Times

WASHINGTON (AP) A judge Thursday rejected a motion by Fox News to dismiss a $1.6 billion defamation lawsuit brought against the cable news giant by Dominion Voting Systems over claims about the 2020 presidential election.

In the 52-page ruling Delaware Superior Court Judge Eric Davis said that the voting-machine company had shown that [a]t this stage, it is reasonably conceivable that Dominion has a claim for defamation per se.

Denver-based Dominion filed a lawsuit earlier this year against the media organization alleging that some Fox News employees elevated false charges that Dominion had changed votes in the 2020 election through algorithms in its voting machines that had been created in Venezuela to rig elections for the late dictator Hugo Chavez. On-air personalities brought on Trump allies who spread the claims, and then amplified those claims on Fox News social-media platforms.

There was no evidence of widespread fraud in the 2020 election, a fact that a range of election officials across the country and even Trumps attorney general, William Barr confirmed. An Associated Press review of every potential case of voter fraud in the six battleground states disputed by former President Donald Trump has found fewer than 475 a number that would have made no difference in the 2020 presidential election.

Key Words (March 2021): Trump defender Sidney Powell justifies her election-theft claims by conceding reasonable people dont believe them

Plus (March 2021): Fox News sued for $1.6 billion by Dominion Voting Systems over election claims

Also see (August 2021): Dominion Voting Systems sues Trump allies over election-fraud claims

In denying the motion to dismiss the lawsuit Davis said that Dominions complaint supports the reasonable inference that Fox either (i) knew its statements about Dominions role in election fraud were false or (ii) had a high degree of awareness that the statements were false.

Davis said that Fox possessed countervailing evidence of election fraud from the Department of Justice, election experts, and Dominion at the time it had been making its statements. The fact that, despite this evidence, Fox continued to publish its allegations against Dominion, suggests Fox knew the allegations were probably false.

The judge also wrote that despite emails from Dominion attempting to factually address Foxs fraud allegations, Fox and its news personnel continued to report Dominions purported connection to the election fraud claims without also reporting on Dominions emails.

Given that Fox apparently refused to report contrary evidence the Complaints allegations support the reasonable inference that Fox intended to keep Dominions side of the story out of the narrative.

Fox News Media said in a statement: As we have maintained, Fox News, along with every single news organization across the country, vigorously covered the breaking news surrounding the unprecedented 2020 election, providing full context of every story with in-depth reporting and clear-cut analysis. We remain committed to defending against this baseless lawsuit and its all-out assault on the First Amendment.

From the archives (December 2020): Fox News, Newsmax air statements debunking voter-fraud claims pushed on air

Fox News had sought to have the lawsuit dismissed arguing that its coverage is protected by the First Amendment and that a free press must be able to report both sides of a story involving claims that strike at the core of democracy.

Fox News parent Fox Corp. FOX, -0.29% FOXA, -0.14% and News Corp NWS, -0.51% NWSA, -0.37%, which owns MarketWatch publisher Dow Jones, share common corporate control.

Class A shares of Fox Corp. are up nearly 27% to date in 2021 and have gained more than 31% over the past 52 weeks.

Follow this link:

Fox News motion for dismissal of Dominion Voting Systems defamation suit rejected in Delaware - MarketWatch

News and research before you hear about it on CNBC and others. Claim your 1-week free trial to StreetInsider Premium here.

Washington, D.C., Dec. 16, 2021 (GLOBE NEWSWIRE) -- For decades, the U.S. Securities and Exchange Commission (SEC) has silenced people with lifetime speech bans enforced through threat of reopened prosecutions. The New Civil Liberties Alliance has filed an opening brief in the U.S. Court of Appeals for the Fifth Circuit in U.S. Securities and Exchange Commission v. Christopher Novinger, et al., challenging a Gag Order included in Mr. Novingers settlement agreement with SEC, which violates not only his First Amendment rights, but also those of everyone who wants to learn more about his case.

On May 11, 2015, SEC filed a complaint against Mr. Novinger and ICAN Investment Group, where he formerly served as director. As a non-negotiable condition of settlement, SEC required Mr. Novinger and ICAN to sign a consent order that they would not question the merits of the Commissions action against them. Mr. Novinger and ICAN continue to be bound by the Gag Order provision, yet desire to engage in truthful public statements concerning the SEC enforcement proceeding.

Mr. Novinger does not want to violate a consent order or suffer the consequences, so he has refrained from making truthful statements that might indirectly creat[e] an impression that the complaint lacked a factual basis or was otherwise without merit. For those reasons, on June 17, 2021, he and ICAN moved for relief from judgment under Rule 60(b).

The district court denied relief in August, holding that Appellants consented willingly to the mandatory gag, and thus failed to meet their threshold burden to establish a due process violation. But the First Amendment of the Constitution provides that Congress shall make no law abridging the freedom of speech, so the First Amendment applies to this court action.

SEC published its Gag Rule in 1972, and for the next half-century, the agency has coerced the silence of hundreds of individuals, forever damaging reputations and livelihoods while securing settlements as the price of peace. But SEC lacked statutory authority to enact such a substantive rule. Furthermore, it did not follow the provisions of the Administrative Procedure Act, which require prior publication, notice and comment before enacting any rule that binds regulated persons or entities.

SECs Gag Rule is a forbidden prior restraint, an unconstitutional content-based restriction on speech, and an unconstitutional condition that violates a hornbooks worth of First Amendment doctrines. The Gag Order also violates Appellants right to due process of law because it was never authorized by Congress, nor was it lawfully promulgated by SEC. It shields and encourages regulation by settlement, allowing SEC to pursue cases not well-founded in established law or rulesand the targets of those actions are forever silenced because the gag operates in perpetuity.

NCLA released the following statements:

It is long past time that courts fulfill their unflagging duty to keep government power within constitutional bounds. The gag rule was invalid from the moment SEC deceitfully slipped it into the Federal Register in violation of law five decades ago. Time has only enlarged the scope and depth of damage to the rule of law and the devastation imposed in perpetuity upon the lives, livelihoods, and reputations of SEC targets. Peggy Little, Senior Litigation Counsel, NCLA

SECs vision statement declares that the Commission seeks to be worthy of the publics trust and characterized by transparency[.] Ironically preferring its operations to remain in the shadows by demanding its targets silence, SECs gag rule subverts its vision. The unlawful silencing of individuals and businesses for decades has prevented important and transparent public discourse about how the Commission might better conduct its enforcement efforts. It is time for this punitive practice to stop. Kara Rollins, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholarPhilip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLAs public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans fundamental rights.

###

Read more:

NCLA Asks Fifth Circuit to End an SEC Lifetime Gag Order that Violates the First Amendment - StreetInsider.com

The Supreme Court on Monday turned away an appeal from a Wisconsin-based conservative think tank that sued the states Democratic governor for denying the group access to press events.

The courts rejection of the appeal, which was issued without comment, brings an end to the MacIver Institute's unsuccessful years-long First Amendment suit against Wisconsin Gov. Tony EversTony EversWisconsin Democrat attorney general says he won't enforce potential abortion bans Supreme Court denies appeal by Wisconsin conservative think tank over press access It's more than midterms next year: State fights that matter MORE (D).

Former Wisconsin Gov. Scott Walker (R) had urged the justices to take up the groups appeal.

The case arose in 2019 after Evers did not invite members of the MacIver Institute to a background briefing on budgetary matters that was attended by some two dozen members of the press who cover the governor.

The MacIver Institute filed a federal lawsuit alleging the group had been denied press access due to their conservative viewpoint, in violation of the First Amendment.

Evers countered that the law permits reasonable restrictions on access to official events, and that his offices denial of press credentials to the think tank was not done because of the groups viewpoint.

In March 2020, a federal judge in Wisconsin sided with Evers, finding that the governor had reasonably concluded that MacIver is not a bona fide news organization.

MacIver publicly brands itself as a think tank committed to ideological principles. It engages in policy-driven political advocacy, including advocating for specific initiatives and policy approaches, wrote U.S. District Judge James D. Peterson, an Obama appointee. It has a news tab on its website, but it does not maintain a news-gathering organization separate from its overall ideological mission.

The Chicago-based U.S. Court of Appeals for the 7th Circuit affirmed the district court ruling in April, prompting the think tanks ultimately unsuccessful appeal to the Supreme Court.

Attorneys for Evers office and MacIver Institute did not immediately respond to requests for comment.

See more here:

Supreme Court denies appeal by Wisconsin conservative think tank over press access | TheHill - The Hill

The heading on a list of books that a politically conservative parents group found objectionable for school libraries was ominous.

DO NOT LET THIS MATERIAL FALL INTO THE HANDS OF OUR YOUNGSTERS, it said, regarding works that included literary-prize winners, minority perspectives on the American experience, and discussions of sexuality, as well as plenty of examples of vulgar language.

Three local school board members who attended the conservative groups conference took the list back to their community and worked to find out whether their school libraries had any of the books on the shelves. One board member was particularly agitated about books on the list that addressed racial issues.

It may sound like something happening today in Texas or any number of other areas around the country. But this was 1975 in Levittown, N.Y., the famous planned community on Long Island. The board members took action to remove a handful of the listed books, leading a few years later to an importantbut complicatedU.S. Supreme Court decision about the limitations on school authorities to remove books for political or ideological reasons.

That 1982 decision in Board of Education, Island Trees Union Free School District v. Pico was so fractured that legal experts debate to this day the degree of legal guidance it provides for the newest wave of book challenges in schools.

Justice William J. Brennan Jr. wrote a sometimes-soaring opinion that said the First Amendment imposes limits on school boards authority to remove library books and that students have a right to receive information.

A school library, no less than any other public library, is a place dedicated to quiet, to knowledge, and to beauty, Brennan wrote, quoting an earlier high-court decision. We hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books.

But Brennans opinion in Pico was for a three-justice plurality of the court, not a majority. Two other justices concurred in varying degrees with a bottom-line judgment in favor of the students in the Pico case. The complicated result left much to be interpreted by lower courts and legal experts.

Pico is a nebulous decision, but lower courts have understood it to say that there are some limitations on the ability of school authorities to ban and remove books from school libraries, said Justin Driver, a Yale University law professor who wrote about the case in The Schoolhouse Gate, his 2018 book about landmark student-rights cases in the Supreme Court.

Its definitely relevant today, Driver said in an interview.

Neal Ramee, a partner in a Raleigh, N.C., law firm with an education practice that advises school districts throughout North Carolina, has studied the finer points of the Pico case for years.

There are a lot of different opinions out there about how to interpret Pico, he said. At a minimum, we know that intent [of school officials] matters and there is not an untrammeled right to remove books.

Many educators would probably agree that now is a good time for dusting off a nearly 40-year-old Supreme Court decision if it offers any assistance in fending off the latest wave of book challenges. Across the country, some parents and lawmakers have called for the removal of long lists of objectionable books touching on race, sex, gender identity, and sexual orientation, among other topics.

In November, Texas Gov. Greg Abbott, a Republican, issued a directive to the Texas Education Agency and other state officials to develop standards to prevent pornography and other obscene content in school materials. Abbott cited two books with LGBTQ themes, Gender Queer: a Memoir by Maia Kobabe, and In the Dream House by Carmen Maria Machado, both of which the governor said depict pornographic or sexual acts.

Meanwhile, a Republican Texas state representative, Matt Krause, has launched a legislative-committee inquiry into education content in the states schools. He released a list of some 850 books, many with race or LGBTQ themes, and has asked school districts to determine whether they have copies in their school libraries or classroom collections.

Krause, who is running for state attorney general, includes on his list The Confessions of Nat Turner, a 1967 Pulitzer Prize-winning novel by William Styron; Between the World and Me by Ta-Nehisi Coates; LGBT Families by Leanne K. Currie-McGhee; The Letter Q: Queer Writers Notes to their Younger Selves, edited by Sarah Moon; and Michael J. Bassos The Underground Guide to Teenage Sexuality: An Essential Handbook for Todays Teens and Parents.

Krause also asked in his letter that districts identify any other books that might make students feel discomfort, guilt, anguish, or any other form of psychological distress because of their race or sex.

And it isnt just in Texas. In North Carolina, Lt. Gov. Mark Robinson in October called for the removal from school library shelves three books the Republican claimed were sexually explicit: Gender Queer; Lawn Boy by Jonathan Evison; and George by Alex Gino. A group of parents this month filed a criminal complaint related to those books against the Wake County school system, alleging the books content may violate obscenity laws.

These are organized efforts by groups that have developed playbooks on how to challenge books in schools, said April Dawkins, an assistant professor of library and information science in the School of Education at the University of North Carolina-Greensboro. My concern is that all these challenges will lead to a chilling effect on the collections and the collection-development decisions of school librarians.

The Pico case began in September 1975, when the three members of the Island Trees school board attended a conference of Parents of New York United, a politically conservative group focused on state education policy. Thats where they got the list of books deemed objectionable by the group.

One of the board members, Frank Martin, took it upon himself to slip into a high school library one evening (with the aid of a janitor), where he found card catalogue entries for nine books from the conservative groups list. Two other books from the list were found elsewhere in the school system.

Martin was particularly agitated that one of the booksA Hero Aint Nothin But A Sandwich by Alice Childress highlighted George Washingtons ownership of enslaved people.

Among the other books from the list found in the Island Trees library were Slaughterhouse-Five by Kurt Vonnegut Jr.; Best Short Stories of Negro Writers, edited by Langston Hughes; Go Ask Alice by an anonymous author; Black Boy by Richard Wright; and Soul On Ice by Eldridge Cleaver.

In early 1976, the school board directed administrators to remove the books from library shelves and deliver them to the central office for review. The board justified its action in a press release by calling the books anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy, adding that it was our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers.

A review committee made up of four parents and four school staff members made a range of recommendations about the books, including that five be retained and two be removed because of vulgarities. (The panel could not agree about the others.) But the Island Trees school board largely rejected the committees work and ordered nine of the 12 books removed from school libraries or the curriculum.

A group of students, including Steven Pico, a student council president, sued the school board under the First Amendment. They lost in a federal district court, but a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, reinstated the students suit. One judge in a 2-1 majority said a trial was necessary on whether the school board had been motivated justifiably by a desire to remove vulgar and sexually explicit works or by an impermissible intent to suppress ideas.

The case reached the Supreme Court in the spring of 1982. The archives of several of the justices papers from that time show that the court struggled with both the substantive issues and procedural peculiarities of the case.

The students attracted five votes in the justices initial internal deliberation. Brennan, as senior justice in that potential majority, assigned the opinion to himself.

He soon circulated a draft opinion that said, Local school boards have broad discretion in the management of school affairs, but such discretion must be exercised in a manner that comports with the transcendent imperatives of the First Amendment.

Brennan emphasized that the case involved not the regular curriculum or a school systems acquisition of library books but their removal. He stressed that school libraries were a place for students to engage in self-education and individual enrichment, and that the books there were optional reading. Brennans opinion further suggested it would be permissible for school boards to remove books based on pervasive vulgarity or educational unsuitability.

Justice Lewis F. Powell Jr., a former state and local school board member in Virginia, was lined up in support of the Island Trees school board, and he was not swayed to change his view by Brennans draft opinion.

As reflected in his papers at Washington and Lee University, Powell underlined transcendent imperatives in Brennans draft and wrote in the margin: nonsense.

Brennan had a bigger problem. Justice Byron R. White, who was one of the five who had voted tentatively for the students, had issues with Brennans opinion.

As your draft is currently written, I doubt that I could join it, White wrote in a memo to Brennan.

You propose as the constitutional benchmark the intention to suppress constitutionally protected ideas with which the school board disagrees, or the intention to impose a political or ideological orthodoxy upon secondary school students, White added in the May 10, 1982, memo. I am frank to say that I scarcely know what a political or ideological orthodoxy is, and it would take years to find out. The removal of any book based on its content could be challenged on this basis.

Brennans opinion, in the end, would be signed in full by Justices Thurgood Marshall and John Paul Stevens, and in part by Justice Harry A. Blackmun.

White wrote an opinion concurring in the judgment, which meant the 2nd Circuits opinion was affirmed, and White called for a trial and further development of the factual record of the case. He wrote that he saw no necessity for the court to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library.

Chief Justice Warren E. Burger wrote the main dissent, joined by Powell, William H. Rehnquist, and Sandra Day OConnor. Burger worried that essentially all decisions concerning the retention of school library books will become the responsibility of federal courts.

Powell, in a separate dissent, expressed concern about the erosion of the authority of local school boards to make educational decisions.

In different contexts and in different times, the destruction of written materials has been the symbol of despotism and intolerance, Powell wrote. But the removal of nine vulgar or racist books from a high school library by a concerned local school board does not raise this specter.

He attached an appendix with excerpts highlighting vulgarities and sexual and racial references in the removed books. Rehnquist and OConnor also wrote separate dissents.

(After the decision, the challenged books were returned to the shelves in the Island Trees district, but there was never a trial about the school boards motivations. In 1983, the school board voted 4-3 to settle the case.)

Charles R. Waggoner, a professor of education administration at Eastern New Mexico University in Portales, N.M., says that when he teaches the Pico case (typically to educators seeking graduate degrees), they divide sharply on whether it stands for the idea that school boards may remove books from school libraries.

I tell my students that, at the very least, when they get into a principalship, they need to have procedures in place to handle book-removal requests, said Waggoner, a former longtime principal.

Yales Driver says that while there is no clear First Amendment holding in Pico, I view Justice White as providing the crucial fifth vote for the idea that there are some limitations on what school officials may do with the [school library] volumes they have already acquired.

Ramee, the North Carolina education lawyer, said lower courts have interpreted Pico in multiple ways. One federal appeals court, ruling in 2009 in a challenge to a book about Cuba in the Miami-Dade County, Fla., school system, held that Pico is of no precedential value to the First Amendment issues in the case.

But other courts have construed Pico to stand for the idea that school boards may not remove books because they dislike the ideas contained in them. For example, lower courts have overruled the removal of the Harry Potter books in an Arkansas district and a lesbian romance, Annie on My Mind by Nancy Garden, by a Kansas school board.

Despite the absence of a clean First Amendment holding, Picos bottom line has enjoyed considerable vitality in lower courts, Driver wrote in his book.

The court did something in Pico, said Ramee. There arent five votes for the right for students to receive ideas. But there are five votes for a remand [for trial]. Justice White at least thinks the state of mind and the motivation of the school board was relevant. So the logical inference is that school boards dont have unlimited authority to remove books. Intent matters.

Its frustrating that there isnt more to Pico, Ramee added. But you cant ignore it.

Read the original post:

Yanking Books From School Libraries: What the Supreme Court Has Said, and Why It's Murky - Education Week

Note: The next edition of Union Station will be on Jan. 7, 2022. Until then, happy holidays!

Since late 2019, Ballotpedia has tracked 160 federal lawsuits related to public-sector labor policy. Today, well look at an overview of these cases. Well also highlight seven Supreme Court decisions that these cases commonly reference.

The majority of these lawsuits ask one or more of the following questions:

The map below shows the cases were tracking by the U.S. district court in which they originated. The three districts with the highest number of cases are the Central District of California (16 cases), the Middle District of Pennsylvania (16 cases), and the District of Oregon (13 cases).

Heres the breakdown by circuit:

And by case status (pending cases are divided by court level, and cases that have been dismissed, settled, or otherwise resolved are counted together):

Finally, this chart shows the cases weve tracked by the year they were filed. The earliest case weve tracked was filed in 2014.

The following Supreme Court decisions are commonly referenced in these types of cases. Heres a quick rundown of each decision, in chronological order:

To view a spreadsheet with information about all of the lawsuits were tracking, click here.

We are currently tracking 110 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills were tracking.

Below is a complete list of relevant legislative actions taken since our last issue.

See the original post here:

An overview of the public-sector labor lawsuits tracked by Ballotpedia Ballotpedia News - Ballotpedia News