The voters of Maine passed the "right to food" state constitutional amendment on Tuesday, the first amendment of its kind in the U.S.

The Associated Press reported that the amendment to Maine's constitution woulddeclare that all individuals have a natural, inherent and unalienable right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health, and well-being.

The vote on the "right to food" amendment was passed with large support in Maine's state legislature, but needed to be placed on the ballot following approval from lawmakers.

The referendum on the amendment came amid growing sentiment among small farmers, liberals, libertarians and other anti-corporation factions that local communities should have more of a stake in their food supply, according to the wire service.

Supporters of the amendment argued that the bill would allow residents the right to grow produce and maintain livestock when big business threatens ownership of local food supply.

State Sen. Craig Hickman (D) told the newswire that the amendment resonated with Mainers.

Its always a good idea to secure and protect an individual right in the world we live in. Food is life, Hickman said, according to AP. I dont understand why anyone would be afraid of saying so out loud in the constitution.

However,opponents of the measure argue the new amendment is vague, and poses a threat to food safety and animal welfare. They fear that people will try to raise domesticated livestock such as cows in their backyards in Maine's cities like Portland.

Maine Farm Bureau is prepared to support Maine farmers as this amendment is enacted and, as always, stands clear in its resolve to protect and embrace food safety and animal welfare as a standard for all Mainers, Maine Farm Bureau executive director Julie Ann Smith said in a statement, according to AP.

Maine passed the nations first food sovereignty law in 2017, which allows food producers to sell their yields on site.

Continue reading here:

Maine voters pass first 'right to food' amendment in US | TheHill - The Hill

Kristine Roegner| Guest columnist

Video: Columbus Dispatch panel discusses critical race theory

On Tuesday, The Dispatch held a live discussion on what Critical Race Theory is, its role in schools and recent moves against similar teachings.

The Columbus Dispatch

As parents and American citizens, we have the First Amendment right to assemble, speak freely and petition our government, including local school boards, on any topic.

More: Here are all the bills impacting the LGBTQ community in Ohio

Whether seeking relief from universal mask mandates, opposing critical race theory indoctrination or addressing other issues affecting our childrens education,parents should feel confident in their constitutional right to speak their opinions.

More: Bill to ban mask mandates in Ohio schools unlikely to pass

Sadly, the National School Boards Association, without approval from any state boards of education, recently petitioned the federal governments law enforcement agencies, including the Department of Justice and FBI, to abridge these constitutional rights.

The Sept. 29 National School Boards Association letterrelies on selective and biased media reporting rather than actual indictments or convictions to request that federal law enforcement deal with what they claim to be growing threats of violence and acts of intimidation occurring across this nation."

More: 'Terrorism and hate crimes': School boards say death threats, unruly meetings require FBI

The national association suggests these acts, which they describe as domestic terrorism," provide justification to employ the Patriot Act against parents who are exercising their First Amendment rights.

More: Threats against Worthington school board over critical race theory part of campaign against democracy

The lack of any direct evidence of threats or harassment by parents when addressing school boards is a clear sign that this has nothing to do with domestic terrorism.

Rather, the left is attempting to further divide this country by launching a cultural war and using intimidation to silencethose who do not agree with their liberal agenda.

Within five days of receiving the National School Boards Association letter, the Biden administration's attorney general, Merrick Garland, directed the FBI to work with U.S. attorneys and meet with federal, stateand local leaders to facilitate the discussion of strategies for addressing threats against school administrators, board members, teachers and staff and open dedicated lines of communication for threat reporting, assessment and response."

More: 'We did not sic the FBI on parents': Attorney General Merrick Garland defends school memo

It is the foundation and core value of our representative government that parents enjoy their constitutional right to speak before and petition their boards of education to shape their desired school curriculums.

Parents can effect change primarily in two ways: electing school board members who represent their core values and exercising their First Amendment right to freely address their local school boards.

More: Distrust, disinformation, dark money: Who's trying to sway Worthington school board race?

It is disturbing that the attorney general is attempting to assert federal authority over a local school board matter, which has no valid constitutional predication and clearly violates the basic principles of free speech and federalism.

Garlands testimony before the House Judiciary Committee indicated he could not factually support his own directive.

Instead, it was a political action taken to stifle and intimidate parents from exercising their First Amendment rights.

This is not a Democrat or Republican issue.

This is about upholding the constitutional right of each American to freely express themselves, seek hearing before and redress their grievances from governmental authorities.

More: Question about anti-Asian hate at Dublin forum shows how not talking about race leads toracist talk

Fortunately on Oct. 26, the Ohio School Boards Associationtook a strong standby severing ties with the NSBA and will no longer will be a member of the national association. This decision is a direct result of the letter sent to President Joe Biden, which they claim was sent on behalf of state associations and school membersacrossthe nation. The OSBA stated, "this assertion could not be furtherfrom the truth."

More: Ohio School Boards Association cuts ties with national group over Biden 'terrorism' letter

Their reasonings echo my belief as a parent and my position as an elected official that "there is tremendous value in allowing and encouraging the public to have meaningful input intothe decision-making process."

I applaud this decision and believe it speaks to our state's commitment to uphold Ohioans First Amendment rights, and empowers parents to use their voice to advocate for what they believe is best for their child.

We are not domestic terrorists; we are American parents.

Sen. Kristina Roegner represents the 27th district in the Ohio Senate, which encompasses all or part of Stark, Summitand Wayne counties.

More:

Parents have every right. Opposing school boards is not 'domestic terrorism' - The Columbus Dispatch

During oral arguments inNYS Rifle & Pistol, there were extended discussions of New York's diverse geography. There are the rural areas of upstate New York, the urban jungle of New York City (neversay "downstate"), and "intermediate areas" like Rensselaer County. These varied communities raise the question of whether the scope of Second Amendment rights can vary from place-to-place.

For example, Justice Thomas asked NY SG Underwood how population density affects the scope of the right to bear arms:

JUSTICE THOMAS: General Underwood, you seem to rely a bit on the density of the population. You say, I think, that states like New York have high-density areas. And implicit in that is that the more rural an area is, the more unnecessary a strict rule is. So, when you are --when you suggest that, how rural does the area have to be before your restrictions shouldn't apply?

Later, Justice Kagan returned to Justice Thomas's question. (We are all better off that the revised format has enabled Justice Thomas to share his wisdom). Kagan explained that it would be intuitive for rights to vary in Wyoming and New York City. But that argument does not "match with our notion of constitutional rights generally." Rights should not vary by place.

JUSTICE KAGAN: I mean, if you think about Justice Thomas's questions about less populated areas, the rural areas of New York versus the cities, I mean, it seems completely intuitive that there should be different gun regimes in New York than in Wyoming or that there should be different gun regimes in New York City than in rural counties upstate.But it's a --it's --it's a hard thing to --to match with our notion of constitutional rights generally.I mean, Mr. Clement makes a big point of this in his brief about how we would never really dream of doing that for the First Amendment or other constitutional rights, allow that level of local flexibility that you're basically saying we should allow in this context. So I guess I just want to hear you say why you think that is. You know, what justification is there for allowing greater flexibility here?

General Underwood's reply focused on the importance of local officials having discretion. After all, local officials know the circumstances of their communities. Justice Sotomayor then interrupted Underwood mid-sentence. Sotomayor contended that Underwood had dodged Kagan's question:

JUSTICE SOTOMAYOR: I don't think that was Justice Kagan's question.

MS. UNDERWOOD: Oh, I'm sorry.

JUSTICE SOTOMAYOR: It was on a broader level, I believe. She can correct me if I'm wrong. The issue is no other constitutional right do we condition on permitting different jurisdictions to pass different regulations or --but do we have any other constitutional right whose exercise in history has been as varied as gun possession and use?

(I'm sure someone is keeping track of when female Justices interrupt veteran female advocates, forcing them to say "I'm sorry.")

Justices Thomas, Sotomayor, and Kagan recognize that a constitutional right should not mean different things in different states. I don't think this agreement will affect the bottom line inNYS Rifle & Pistol. But this overlap should affect how the opinions are written.

I am very sympathetic to this premise. I made a similar argument in one of my first law review articles,The Constitutionality of Social Cost. I asked whether the Second Amendment has a "geography clause"--a term I coined in a 2009 blog post. Here is an excerpt from my 2011 article from the Harvard Journal of Law & Public Policy.

Does the Constitution have a geography clause? This section explores whether the Second Amendment is a national right or a local right that can be limited based on circumstances, such as high crime. Proponents of the geography clause argument fall into two camps. First, Justice Stevens in McDonald contended that the Second Amendment as applied against the States should provide weaker protections than the Second Amendment as applied against the federal government.225 Justice Alito adequately rebutted this erroneous application of Justice Brandeis's laboratories of experimentation thesis and Justice Harlan II's never accepted incorporation jurisprudence.226 The other theory, advanced by Justice Breyer, contends that local municipalities should be able to consider whether an area has a high crime rate when construing the meaning of the Second Amendment.227 Although Justice Alito rejected Justice Stevens's twotrack approach to incorporation, he leaves open the door for localities to devise solutions to social problems that "suit local needs and values" according to certain limitations.228 This section considers the First and Fourth Amendments, which countenance locational rights that can vary based on location, and distinguishes those frameworks from the approach Justice Breyer seeks.

I could not have fathomed that a decade after I wrote this article, the questions I posed about the Second Amendment would still be unresolved.

Read more here:

Does The Second Amendment Have A Geography Clause? - Reason

On October 8, 2021, after a preliminary injunction hearing heldon September 28, 2021, Judge James O. Browning of the U.S. DistrictCourt for the District of New Mexico issued a 92-page opinion inwhich he found that the New Mexico Administrative Office of theCourts and the First Judicial District Clerk's Office violatedthe First Amendment right of timely public and press access tonewly filed state civil, non-confidential complaints. While afavorable ruling in many respects, the resulting preliminaryinjunction does not, for now, fully remedy the constitutionalviolation.

The lawsuit was brought by Courthouse News Service (CNS), led byits founder and publisher, William Girdner, asserting that FirstAmendment and common law precedent - viewed through the lens oftraditional access - established a right to contemporaneous accessto new civil complaints when filed, before administrativeprocessing, largely derived from the influential case of Press-Enterprise Co. v. Superior Court,478 U.S. 1 (1986) (known as Press-Enterprise II). Theheart of the argument was that the district clerks, who are thecustodian of court records, were unconstitutionally delaying accessto new complaints in a way that departed from the traditionalaccess that existed in the world of paper filings before the adventof electronic filing (or e-filing). Recent statistics showed thatover 30% of newly filed complaints were delayed one or more daysstatewide, and over 67% in the Santa Fe court, before the press andpublic could see them.

Intuitively, one would think that under mandatory e-filing,access delays would decrease, not increase. Indeed, federal courtsusing PACER and many other state courts throughout the countryusing a variety of e-filing systems provide traditional, on-receiptaccess within minutes of an e-filing transaction. Yet, New Mexicoand many other states now delay access until after administrativeprocessing-also called docketing-which can vary in time, but oftenresults in access being delayed until the next day or longer. Thisis not traditional access where, the undisputed evidence showed,new complaints were made available to CNS and other members of thepress within minutes of receipt of paper filings by clerks atin-take counters, and virtually all on the same day of filing.Instead of speeding up access, certain courts and clerks havechosen to slow down access to e-filed complaints throughadministrative processing "requirements," whichdetrimentally affects reporting on newsworthy case filings in aprompt manner. As Mr. Girdner aptly described it, news is likebread - fresh the day it is made, stale the next.

Out of the gate in New Mexico, as tried elsewhere, thedefendants challenged the federal court's jurisdiction to evenhear the constitutional claim based on the abstention doctrine.However, U.S. Supreme Court precedent, including Sprint v. Sprint Communications, Inc. v.Jacobs, 571 U.S. 69 (2013), as well as Tenth Circuitprecedent made clear that abstention did not apply because therewas no concurrent state court proceeding involving CNS seeking thesame relief that would be subject to interference by a federalcourt ruling. Judge Browning ruled that abstention did not applyand, thus, rejected the defensive move.

On the merits, the key holdings were that the press and publichave a constitutionally protected right to timely access to newcivil complaints, and, importantly, the right attaches at the timeof "filing" - that is, when submitted by the e-filer tothe clerk. This ruling is valuable because many clerks argue, asthey did here, that a complaint is not "filed" untilafter administrative processing is completed, which is comprised ofpurely clerical tasks. The Court rightfully rejected this argument.Any other conclusion would mean that state court bureaucraciescould unilaterally, and arbitrarily, define for themselves whenFirst Amendment access rights spring into existence.

After reviewing precedent and analyzing access delay statisticsin the New Mexico state courts, Judge Browning created a "fivebusiness hour" rule; that is, defendants are required to makenew civil complaints available within five business hours offiling. Essentially, this rule allows a time period of acceptabledelay based on what current access data reflects is within thecapability of the clerk's office to achieve using existingprocessing procedures without much additional effort. As a resultof this rule, statistics show that access to over 60% of filings ona given day can be delayed until the next business day. This resultis not aligned with traditional access when complaints were filedin paper form by hand. More importantly, the "five businesshour" rule is not a narrowly tailored means to achieve acompelling or substantial state interest where the interest inadministrative processing undisputedly involves clerical tasks.While clerks cite concerns over sealed or confidential documentsbeing made public with more contemporaneous access, the evidenceshowed that sealed complaints cannot be e-filed, and in any event,this interest can be protected by commonly used safeguards providedby software and e-filer obligations, as evidenced by PACER andother systems, without curtailing the constitutional right ofaccess. Thus, the "five business hour" rule does notreturn what was taken away - traditional access - and fails toremedy the constitutional violation.

Several other important challenges brought by CNS are pendingacross the country, including a federal lawsuit filed in TravisCounty, Texas, where a motion to dismiss based on abstentionremains pending after the case was filed late in 2020. Given therecent New Mexico district court opinion rejecting abstention,coupled with Ninth and Fourth Circuit consensus on the issue, themotion will hopefully suffer a similar fate, allowing the case toproceed to the merits of the constitutional claim. How the meritswill be addressed remains to be seen, but First Amendmentprecedent, the history of traditional access, and a substantialpublic interest fully supports an obligation to providecontemporaneous, on-receipt access without unnecessary andarbitrary clerical delay. The less workable approach of fashioninga time window of acceptable processing delay, in reliance on localclerk practices, effectively dispenses with traditional access,allowing the contours of an important constitutional right to beshaped on an ad hoc, inconsistent basis throughout thecountry - to the public's detriment. Technological advancementsshould be used to improve, not delay, press and public access.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

Link:

State Court Clerks In New Mexico Delay Access To Court Records In Violation Of The First Amendment, But An Adequate Remedy Proves Elusive -...

Recently theNew York Timesand other newsoutletsreported that a seven-foot-tall statue of Thomas Jefferson will soon be removed from the New York City Council chamber. City officials unanimously voted for its removal, citing Jeffersons slaveholding history.

Lost in the conversation is the little-known genesis of the statue.

The sculpture was commissioned by the first Jewish commodore in the United States Navy Uriah Phillips Levy a man who for decades, at his own expense, worked to save Jeffersons dilapidated historic home Monticello from ruin. Levy, who faced anti-Semitism throughout his naval career, greatly admired Jeffersons views on religious freedom. The third president wrote the Virginia Statute for Religious Freedom, whichserves as the prototype for the First Amendment in the Bill of Rights.

Levys motivation, to celebrate the religious liberty that allowed him a career of military service, is paramount to the sculptures intended (and lost) meaning. Levy wrote in a letter, For his determined stand on the side of religious liberty, I am preparing to personally commission a statue of Jefferson.

Levys desire to recognize Jeffersons legacy of religious freedom is a vital distinction. It strongly correlates with Levys commitment to American values despite the obstacles he faced because of his religio-cultural heritage, and the reciprocal gains America reaped because of Levys freedom to serve his country. Levy fought in the War of 1812, where he and his crew were taken prisoner by the British and held in captivity for 16 months. He also spearheaded the banning of flogging in the Navy.

But if a statue of Jefferson is up for relocation then should we rethink the location for the countrys largest equestrian monument, which honors Ulysses S. Grant? In view of the US Capitol building, the statue memorializes the man who issued a deplorable decree that expelled all Jews as a class within 24 hours from districts occupied by the Union army in Kentucky, Mississippi, and Tennessee. Grants order, the most anti-Semitic ever issued by the American government, erroneously branded Jews as traitors to the Union, accusing them of black-market profiteering in cotton.

Unquestionably, Grants success as the commanding Union general merits celebration, alongside important presidential acts such as signing into law the 15th Amendment to the Constitution, granting Black men the right to vote.

This commemorative sculpture still stands in its intended location because it has been examined for the context of its creation.

Two proposed locations for Jefferson are the New York Public Library and the New-York Historical Society. Wherever Jefferson is eventually displayed likely a public venue where many more people will see it the sculpture should be accurately contextualized. A plaque near it should explicitly honor Jeffersons critical and too-often forgotten contributions to religious equality while also pointing out his egregious flaws. Levy, too, should be part of that conversation, offering a potent example of an individual who reaped the rewards of Jeffersons commitment to religious liberty and a country that equally benefited worthy of celebration by Jews and non-Jews alike.

Go here to read the rest:

What We Are Missing in the Debate Around NYC City Halls Jefferson Statue? - Hyperallergic

Amy Kristin Sanders| Opinion contributor

Supreme court sides with Pennsylvania cheerleader over Snapchat post

The Supreme Court ruled that a Pennsylvania public school wrongly suspended a cheerleader over her profane Snapchat post.

Fox - LA, Fox - LA

For a country that purports to value our First Amendment right to freedom of speech, it has become clear that some of our elected officials dont understand it.

State legislatures across the country have passed bill after bill that violate the First Amendments free expression protections protections that limit the governments ability to infringe on individuals speech.

Yet a recent survey by the Freedom Forumof more than 3,000 Americans found that 94% value the First Amendment as vital, and more than half say it should never be altered.

Now more than ever, we need a renewed focus on civic education to ensure Americans understand their constitutional rights. In addition, one study from the Freedom Forumsuggests nearlyone in fiveAmericans cannot name a singleFirst Amendment freedom.

Still, elected officials are regularly quoted in the media, espousing plans to require social media platforms to carry certain speech or barring them from shutting down certain accounts. Ask honest constitutional scholars, and theyll assure you these plans are unconstitutional.

This summer, a federal judge in Florida temporarily barred the state from enforcing a new law that targeted social media platforms that shut down accounts of political candidates or journalistic enterprises, allowing up to $250,000 in fines per day.

Texas Gov. Greg Abbott has signed several similarly unconstitutional bills. One,House Bill 20, purports to restrictsocial media platforms when it comes tocontent moderation. Another,Senate Bill 4, aims to require Texas sports teams to play the national anthem.

The Arizona State Legislature hasconsidered a law that would require parents to opt-in toany curriculum that addresses gender identity orgender expression of sexuality effectively limiting schools ability to teach about historical events including the Stonewall riots. It also restricted the teaching of HIV and AIDS awareness.Doing so represents a clear violation of the First Amendment. Gov. Doug Ducey a Republican vetoed Senate Bill 1456, yet lawmakers persisted andreintroducedthe measure.

So why are all these lawmakers, many of whom graduated from elite law schools, proposing laws that contravene the First Amendment? Perhaps its political theater. Or perhaps they simply need a bit of civics education.

Like our elected officials, it seems even we voters need a refresher course on these issues. Only 36% of Americans know that companies like Twitter and Facebook are not liable for the content users post on their platforms, while just over half of respondents in the Freedom Forum survey knew the First Amendment protected flag burning as a form of free speech.

In numerous opinions during the past century, the Supreme Court has made clear that there are stringent limits placed upon the government when it comes to regulating speech.

As recently as June, the Court ruled 8-1 in favor of a high school student who was sanctioned by her school for a social media post that contained a well-known, four-letter expletive. Although the court stopped short of saying public school officials could never sanction students for off-campus speech, it made clear that some speech is protected by the First Amendment.

In November, the Supreme Court will hear a case asserting that the city of Austin, Texasexceeded its authority to regulate speech when it enacted an ordinance that treats on-premises signage differently from off-premises signage.

The courts decision could give federal, state and local governments much greater latitude to regulate speech if the justices decide to narrow the types of restrictions to which their highest level of scrutiny applies. In the Austin case, this would allow the city to regulate on-premise and off-premise signs differently including banning digital billboards while permitting on-site digital signage.

Without a greater emphasis on civic education, and First Amendment rights in particular, many of us will continue to lack the knowledge and tools we need to fully participate in our governance, and taxpayers will continue to foot the bill for legal challenges to state laws that are plainly unconstitutional laws that should never have been proposed or passed in the first place.

Our nations first president, George Washington, famously saidthat without free speech"dumb and silent we may be led, like sheep to the slaughter."Free Speech Week offers a great reminder that many of us need to reeducate ourselves about the collective rights and obligations that we have as citizens living under a republican form of government.

Amy Kristin Sanders is an associate professor of journalism andlaw at The University of Texas at Austin, where she studies global free expression rights.

See more here:

We need to do a better job teaching citizens about the First Amendment - USA TODAY

BRUNSWICK, Ga., Oct. 22, 2021 /PRNewswire/ -- On October 22, family members of Ahmaud Arbery, will join the Transformative Justice Coalition at a press conference to address recent attacks raised in court proceedings against the Transformative Justice Coalition (TJC). The press conference will precede a March sponsored by TJC and the family of Ahmaud Arbery at approximately 2:00 PM EDT. Following the press conference, the march demanding justice for Ahmaud Arbery will commence and go through the community in which Ahmaud was raised.

The Transformative Justice Coalition (TJC) sponsored 100 activists from around the nation to attend the first week of the trial of Ahmaud Arbery's accused killers. Kicking off the march with a press conference, TJC will also discuss its impressions from the first week of the murder trial and its response to the scurrilous and unfounded attacks on TJC and the First Amendment.

What:

Justice at the First Amendment

Who:

Diane Arbery, Matriarch of Ahmaud Arbery Family

Marcus Arbery, Father of Ahmaud Arbery

Barbara Arnwine, Esquire Founder/President/Co-Leader, Transformative Justice Coalition

Daryl D. Jones, Esquire, Board Chair/Co-Leader, Transformative Justice Coalition

When:

October 22, 2021 at 2:00 pm

Where:

Brunswick, GA

Founded in 2015 by Barbara Arnwine, president emeritus of the Lawyer's Committee for Civil Rights, the Transformative Justice Coalition seeks to be a catalyst for transformative institutional changes that bring about justice and equality in the United States and abroad. Learnmoreattjcoalition.org.

Formoreinformation,contact:

Lynn Whitfield, Esq.

322008@email4pr.com

(561) 856-6757

Ricky Parker

Cell: (347) 524-2530

Email: 322008@email4pr.com

View original content:https://www.prnewswire.com/news-releases/transformative-justice-coalition-tjc-press-conference-and-march--justice-and-the-first-amendment--301406859.html

SOURCE Transformative Justice Coalition

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Transformative Justice Coalition (TJC) Press Conference and March: "Justice And the First Amendment " - Johnson City Press (subscription)

From Doe v. Google LLC, decided today by Judge Beth Labson Freeman:

Plaintiffs assert that Defendants have deprived them of their First Amendment rights by suspending their YouTube accounts. Plaintiffs argue that they have pled sufficient facts to plausibly allege state action under [the theory of government] compulsion .

{[From an earlier decision in the same case, the background facts: -EV] Plaintiffs created eighteen channels on the YouTube platform. Plaintiffs describe their channels as "extremely controversial" "conservative news" channels that feature content about "Hunter Biden and the Ukraine scandal," "the ongoing corruption probe," "social media censorship," "race relations or protests in America," and "anonymous posts on political issues by someone identifying themselves as 'Q.'" Plaintiffs allege that as of October 15, 2020, their channels attracted over 4.5 million subscribers and over 800 million views.}

Plaintiffs' First Amended Complaint cites statements by U.S. Rep. Adam Schiff and Speaker of the House Nancy Pelosi and an October 2020 House Resolution, which "have pressed Big Tech" into censoring political speech with threats of limiting Section 230 of the Communications Decency Act ("CDA") and other penalties.

For a private party's conduct to constitute state action under a compulsion theory, it must involve "such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky (1982). To plead such a claim, a party must allege that the government "commanded a particular result in, or otherwise participated in, his specific case." Plaintiffs must point to a "state regulation or custom having the force of law that compelled, coerced, or encouraged" the alleged private conduct. Further, a compulsion claim against a private party requires pleading "some additional nexus that [makes] it fair to deem the private entity a governmental actor in the circumstances."

The Court finds that the statements by federal lawmakers Plaintiffs point to are insufficient to plead that the government "commanded a particular result in, or otherwise participated in, [Plaintiffs'] specific case." Plaintiffs point to generalized statements from lawmakers pertaining to "coronavirus-related misinformation," "disinformation proliferating online," "QAnon-related speech," and "conspiracy theories."

None of the statements mention Plaintiffs' names, their YouTube or Google accounts, their channels, or their videos. Plaintiffs argue that state actors "commanded a particular result" in their case because "Plaintiffs have alleged that Congress demanded that the unpopular speech dubbed 'misinformation,' and QAnon-related speech be limited and erased, which is precisely what Plaintiffs allege Defendants did." The Court disagrees that broad lawmaker proclamations regarding "misinformation" or "QAnon-related speech," for example, are sufficient to show that the government "commanded" the suspension of Plaintiffs' accounts. Even if Defendants had complied with these lawmaker statements to the letter, they would still have had the ultimate discretion on what videos or accounts fit into buckets like "misinformation" or "QAnon-related speech."

The Court also disagrees with Plaintiffs that they have alleged sufficient facts about the content of their videos to link their removal to the broad categories of online content mentioned in the lawmakers' statements. For example, Plaintiffs plead no facts to indicate that their videos pertained to COVID-19, so none of the statements from members of Congress relating to COVID-19 misinformation have any relevance to Defendants' alleged conduct. Further, Plaintiffs plead only vague facts about other subjects that leave open the question as to whether all Plaintiffs posted about these subjects, or only some of them. And none of the lawmaker statements Plaintiffs cite contain clear action items relevant to Plaintiffs' allegations. Id. 32 (encouraging YouTube to "display messages to any users who have engaged with harmful coronavirus-related misinformation"); id. 34 (generally discussing "misconduct" related to "the division and the disinformation proliferating online"); id., Ex. F at 81 (encouraging action on the part of the FBI, intelligence community, and "all Americans").

Plaintiffs claim that Defendants' conduct is state action because it was in response to the threat of various government penaltiesthe repeal of CDA Section 230 protections, "show trials" in front of the U.S. Senate, and a DOJ antitrust suit against Googleallegedly linked to whether Defendants appropriately moderated certain types of content. The threats of penalties Plaintiffs point to are insufficient to convert private conduct into state action here. The Ninth Circuit has found that pleading "a private actor's conduct is subject to penalties is insufficient to convert private action into that of the state." Moreover, Plaintiffs fail to point to any penalties that necessarily or even likely would have followed if Defendants did not suspend their accounts. See, e.g., FAC 10 (citing a DOJ antitrust case against Google with no alleged relationship to content moderation decisions); id. 34 (discussing generally that "social media executives will be held accountable for [their] misconduct"); id. 33 (discussing removal of CDA Section 230 protections without any clear action item or ultimatum); Opp. at 12-13 (citing cases related to congressional subpoena and investigation powers). These speculative "threats" to Defendants do not plausibly constitute "state regulation or custom having the force of law."

Plaintiffs can point to no authority to support a compulsion theory of state action based on penalties, particularly "threats" as speculative as the ones they point to here. See, e.g., Abu-Jamal v. NPR (D.D.C. 1997) (pressure from individual members of Congress did not bring about state action because "not one of these people has any legal control over [defendant's] actions."); Daniels v. Alphabet Inc. (N.D. Cal. 2021) ("[S]peculative assertions about the possibility defendants will be subpoenaed to testify before Congress or exposed to some other peril if they ignore letters from Congressional representatives do not support a theory of government action."). Courts have declined to find state action even where government penalties are far less speculative than what Plaintiffs allege, like where a law or regulation tied to state funding applies. Blum ("[P]enalties imposed for violating the regulations add nothing to respondents' claim of state action."); Heineke v. Santa Clara Univ. (9th Cir. 2020); Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) ("The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State[.]"); see also Manhattan Comm. Access Corp. v. Halleck (2019) ("Put simply, being regulated by the State does not make one a state actor.") Here, no law or regulation appliesin fact, the main "threat" Plaintiffs allege is the repeal of a law (Section 230 of the CDA).

The Court also finds that Plaintiffs have not pled facts sufficient to plausibly allege the "something more" element required for a compulsion claim against a private defendant under Plaintiffs claim that they have pled facts that Defendants and the government "were jointly pursuing an unconstitutional end." But Plaintiffs rely primarily on a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki that has no alleged relevance to Plaintiffs' content, since it pertains to COVID-19 misinformation. Moreover, as discussed below, Plaintiffs have failed to allege facts sufficient to plead that Defendants were engaged in joint action with the government.

Plaintiffs [also] assert that there is state action under a joint action theory, pointing to a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki in which Ms. Wojnicki states, "We appreciate your partnership and will continue to consult with Members of Congress as we address the evolving issues around #COVID19."

Joint action is present where the government has "so far insinuated itself into a position of interdependence with [a private entity] that it must be recognized as a joint participant in the challenged activity." Further, a private defendant must be a "willful participant in joint action with the state or its agents." Joint action requires a "substantial degree of cooperative action" between private and public actors.

As a threshold matter, the Schiff-Wojnicki Twitter exchange Plaintiffs point to in support of their joint action claim clearly pertains to misinformation regarding COVID-19. As the Court discussed above, Plaintiffs have failed to allege any facts indicating that their posts pertained to COVID-19. Accordingly, it is unclear how this Twitter exchange supports a joint action theory pertaining to the suspension of Plaintiffs' channels. Since the Twitter exchange appears to be the fact Plaintiffs primarily rely on to allege joint action, Plaintiffs' failure to plead the relevance of this fact renders their joint action claim essentially unsupported. Further, it is simply implausible to read a casual Twitter exchange between one member of Congress and YouTube's CEO as joint action. Plaintiffs' theory would effectively cause companies to cease communicating with their elected representatives for fear of liability .

Further, Plaintiffs' allegations fail to plausibly plead a "substantial degree of cooperative action" between Defendants and the government. Based on Plaintiffs' allegations, their content was removed through the following series of events: federal lawmakers publicly flagged general categories of content for Defendants to consider moderating and issued threats to compel Defendants to comply, Defendants independently chose what content fit into the lawmakers' general categories, and Plaintiffs' channels happened to be some of the content Defendants decided to remove. Courts have dismissed cases for lack of state action despite significantly more alleged cooperation between public and private actors compared to what Plaintiffs allege here. Pinhas v. Summit Health, Ltd., (9th Cir. 1989) (affirming dismissal for lack of state action in decision by private hospital pursuant to review process approved by state); Heineke (affirming dismissal for lack of state action where private actor "receives federal and state funds conditioned on compliance with federal and state anti-discrimination laws and regulations"); Abu-Jamal (no plausible joint action at pleading stage where defendant is alleged to have a "close relationship" with the government); Jackson v. Metropolitan Edison Co. (1974) (affirming dismissal for lack of state action where defendant "was a heavily regulated, privately owned utility"); Blum (no state action with "state subsidization of the operating and capital costs of the [private] facilities, payment of the medical expenses of more than 90% of the patients in the facilities, and the licensing of the facilities by the State").

The cases Plaintiffs cite also indicate that far more is necessary to plead joint action than what they have alleged here. Plaintiffs cite U.S. v. Price (1966), which involved a scheme between state officers and private citizens where "[s]tate officers participated in every phase of the alleged venture: the release from jail, the interception, assault and murder. It was a joint activity, from start to finish." Plaintiffs have failed to plead anything close to the Price scheme. Ms. Wojnicki's tweet about "partnership" and "continu[ing] to consult with Members of Congress" does not suggest that government officials were involved at every step of Plaintiffs' suspension. At most, Plaintiffs appear to allege that government officials identified categories of information Defendants should consider removingthere is no allegation that government officials were in the room or somehow directly involved in the decision to suspend Plaintiffs.

Further, Plaintiffs cite Lugar v. Edmondson Oil Co. (1982). In that case, the Supreme Court found joint action where a private party "invok[ed] the aid of state officials to take advantage of state-created attachment procedures." In the present case, there are no allegations that Defendants invoked state or federal procedure to bring about the suspension of Plaintiffs' accounts. Defendants merely suspended Plaintiffs from Defendants own private platform.

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No Government Action (and Thus No First Amendment Violation) in Suspension of Plaintiffs' YouTube Accounts - Reason

The months-long legal dispute of publisher Activision trying to take down an indie web-based incremental strategy board game to safeguard its lucrative Warzone trademark has hit a new lawful curve.

According to court documents obtained for a hearing which took place in the United States District Court for the Central District of California earlier in the month, plaintiff Activision admitted that defendant Warzone.com was the first one to use the Warzone trademark in 2017, nearly three years before Call of Duty: Warzone was officially released.

However, Activision still argues that its use of the Warzone trademark as the title for its [Call of Duty] game is protected under the First Amendment and as such seeks massive damages from the defendant for reverse trademark infringement. That in addition to forcing the indie developer to completely abandon the Warzone trademark for its web-base game.

Activision has now forwarded a motion to dismiss any and all counterclaims made by the defendant. Warzone.com has in return pleaded that if the motion to dismiss is accepted by the court, it would signal that a corporate giant can claim the mark of a direct competitor without the claimant even being afforded an opportunity via discovery to explore the issues presented, merely because the defendant is using the claimants mark in the title of an expressive work.

It would mean that a large corporation can engage in reverse trademark confusion with impunity even filing for the same trademark for the identical description of goods. Such an outcome would place a fist not a thumb firmly on the First Amendment side of the scale balancing the constitutional interests between Lanham Act protection and free expression.

Activision sued Warzone.com several months back for using the same name as its own battle royale phenomenon despite Call of Duty being at least three years late. In a statement given to SegmentNext earlier today, the makers of Warzone.com reminded that Activision made this a legal dispute after endless effort by us to resolve the situation and now we will fight to the very end.

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Activision's Banking On The First Amendment To Win Warzone.com Trademark Lawsuit - SegmentNext

Patty Rhule. Photo courtesy Freedom Forum

By PATTY RHULE

The First Amendment isnt just lofty language.

For many Americans, including five we asked about it, its 45 words that they are living every day.

The Freedom Forum surveyed more than 3,000 people in late summer 2020 to find how their values and attitudes shape their feelings about the First Amendment. The First Amendment: Where America Stands finds near-universal support that the freedoms of religion, speech, press, assembly and petition are vital and essential today. We interviewed dozens of survey participants to get more insight into their thoughts about the First Amendment. Here are some thoughts from five of them.

Bora Kimemigrated to the United States from South Korea as a young girl. I was coming from a country and a culture that I should say, maybe didnt value or prioritize the freedom of expression or holding ones own opinion as valued. So when I came to the States being taught to really voice myself and to respect myself as an individual was really validating and empowering.

Today, Kim lives in New York City and advocates for artists and their right to free expression an everyday extension of her First Amendment freedoms. My work in supporting them is in a way allowing that freedom of speech and expression to be possible for these individuals.

Eric Arroyogrew up using his freedoms of assembly and petition as a child of the 60s fighting for civil rights, womens rights and gay rights. There was the youthful movement of saying, This is wrong. Why cant Blacks vote? Why must women be told what to do with their bodies? Why must you have Latinos and Asians being treated as second-class citizens?

I marched, sat in, boycotted all peacefully, said Arroyo, now retired in the Bronx, N.Y., from economic development work. He worked for progressive candidates and tried to effect change. Power was challenged, and unfortunately people were killed. And people sacrificed on behalf of that highest principle that we are in fact equal and should have equal access to the law.

WATCH:The First Amendment: Where America Stands Survey Interviews

ForRuben Morenoof Tucson, Ariz., speech is his most valued freedom. Im a gay American, so I need to be able to express myself doing a Pride parade, during a job interview, for healthcare. Its important that everybody, no matter who they are straight, gay, trans that they are able to be who they are and speak their truth with their authentic selves. If thats taken away, I mean, thats a huge tragedy, not just for Americans, but for America.

Raised in a fundamentalist faith, Moreno now exercises his First Amendment freedoms by opting out of organized religion. Speech is his most valued freedom, but press is a close second. Look, if you want to be like Russia or North Korea or Brazil or any other dictatorships in the world, youre going to want to limit freedom of the press because you dont want free thought to get around, Moreno said. You dont want people thinking on their own.

Rise Briggs, a picture framer and farmer in Roseburg, Ore., is also concerned about freedom of thought. Active on various community boards, Briggs has lately felt that free speech her most treasured freedom is under attack.

I dont expect people to agree with me, but I expect people to think, says Briggs, a Native American. Ive always written the letters to the editor and things like that as I process. It gets people to either get fired up and do something or something along those lines. But I didnt expect a lot of venom and thats what Im getting now.

Still, she opposes the idea of campus safe spaces where speech is limited for college students. You must allow the ideas to be heard, she said. Nor does she believe in the idea of hate speech, defining the term as made up to silence people.

If you believe in the First Amendment, you can say whatever you want. It affords you the ability to be heard and to have conversations and dialogues and resolve issues that may need to be able to have people debate.

Religious freedom is most vital toRobert Gray, whose family fled Germany and Switzerland for Pennsylvania in the late 1600s due to religious persecution they experienced as Mennonites.

Gray, a CEO who lives in Terre Haute, Ind., worries about the lack of responsibility people exhibit in exercising their freedoms today. If I know my speech is going to hurt somebody and take away their rights, maybe I should think a sec and engage my brain before I put my mouth in gear.

For Arroyo, it all comes down to five freedoms. I value the First Amendment because it presents me with five rights that I have to live my life and enjoy my life in the company of my fellow citizens.

Watchmore Americans share their First Amendment views and questions, plus expert answers.

. . .

Patty Rhule is the chief content officer and vice president of the Freedom Forum. She can be reached at[emailprotected].

Read more from the original source:

FIRST 5: For these 5, First Amendment is everyday essential - Salina Post