First Amendment

The Lie of Separation of Church and State & the U.S. Supreme Courts Usurpations of Power

By Publius Huldah

1. How did it happen that our country became a land where Christian children are forbidden to use the word, God, in the public schools; public school students are forbidden to say prayers at football games; and Christian religious speech is banned from the public square? Read on, and I will show you how judges on the supreme Court perverted our Constitution, prohibited the Free Exercise of Religion, and abridged our Freedom of Speech.

2. We must begin by learning what our Constitution says and doesnt say about religion and speech. The three branches of federal government: Legislative Branch (Art I), Executive Branch (Art II), and Judicial Branch (Art III), have only the enumerated powers delegated to them in the Constitution. All legislative powers granted in the Constitution are vested in Congress (Art I, 1). This means that no other branch may make law. Since the legislative powers of Congress are enumerated, Congress may make laws only on those specific subjects listed in the Constitution as proper objects of legislation. Since religion & speech are not among the listed powers, Congress may not make any laws about religion or speech.

3. Furthermore, the First Amendment to the Constitution says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech

What is an established religion? I will show you how judges on the supreme Court changed the historical definition of that term so that they could eradicate the Christian religion from our public square and eliminate speech they dont like. We will begin by finding out what establishment of religion actually meant when the Constitution was ratified. To do so, we must consult English history, American colonial history, and writings of our Founders.

Established Religion in England.

4. Queen Mary I (Bloody Mary), who reigned between 1553-1558, deposed The Church of England which her Father, Henry VIII, had established; re-established the Roman Catholic Church, and burned approximately 300 Protestant dissenters at stake.

Elizabeth I, who reigned between 1558-1603, restored the Church of England. Elizabeths Act of Uniformity (1559), imposed fines, forfeitures, and imprisonment on church officials who did not conform to approved doctrine & practice; and imposed fines on all persons who, without sufficient excuse, did not attend services of the Church of England. Additional laws illustrative of English Church History from 1558-1640 are here.

During the reign of Charles II (1661-1685), the Puritan John Bunyan, author of Pilgrims Progress, was imprisoned for 11 years because he refused to attend services of the established Church of England, and he refused to obtain a license to preach as a nonconformist.

5. The established religions in England, first Roman Catholic, and then Church of England, were supported by tithes mandatory payments of a percentage of the produce of the land, payable by those living within the parish (regardless of their religious preferences) to the parish church, to support it and its clergy:

The payment of tithes was a cause of endless dispute between the tithe owners and the tithe payers between clergy and parishioners In addition, Quakers and other non-conformists objected to paying any tithes to support the established church. Almost every agricultural process and product attracted controversy over its tithe value. By the eighteenth century the complex legislation surrounding the tithe began to have a detrimental effect Tithing was seen as increasingly irrelevant to the needs of the community and the developing agricultural industry.

6. So! The essential characteristic of established religion in England up to the time of the founding of our country was coercion by the civil government: The people were forced to practice the established denomination under pain of death, imprisonment & fines, and were forced to financially support the established church.

Established Religions in the American Colonies.

7. English settlers in the colonies promptly established their religions. In Massachusetts, where they established the Congregational Church, only church members could vote between 1631-1664; dissenters (Roger Williams, etc.) were banished; and between 1650-1670, Quakers were whipped, imprisoned, banished, and put to death. In Virginia, where they established the Church of England, penalties for failure to attend services during the early 1600s included death, prison, and fines. 1 In Maryland, where they established the Church of England, between 1704-1775, Roman Catholic (RC) services could be held only in private homes, RCs could not teach school, inheritance of property by RCs was restricted, and RCs who would not take a certain oath were disfranchised and subject to additional taxes, as well as being forced to contribute to the established church. In Virginia at this time, RCs were forbidden to possess arms, give evidence in court, or hold office unless they took certain oaths. New York and Massachusetts made laws which stayed on the books until the Revolution directing all RCs to leave the realm. Rhode Islands laws between 1719-1783 prohibited RCs from being freeman or office holders. Not until 1783 were RCs given full political rights in Rhode Island. In Virginia, no marriage was legal unless performed by a minister of the Church of England. 2

Everyone in Virginia, Maryland, and North & South Carolina was required to contribute to the support of the established Church of England, to maintain the building, pay the ministers salary, and provide him with a house and plot of land. New York required each county to hire a good sufficient Protestant minister and to levy taxes for his support. By 1760, the Congregational Church was still established in Massachusetts and Connecticut; but Episcopalians, Baptists and Quakers were now tolerated, and no longer required to support of the Congregational Church. 3 Presbyterians of Chester, N.H. objected to being taxed to support the Congregational minister, and in 1740 won the right to be taxed only for their own denomination. Even so, in 1807, the Presbyterians in Chester sold a Quakers cow for non-payment of the Ministers Tax!

Writings of Our Founders.

8. As the Spirit of Toleration grew in England and colonial America, criminal penalties for dissenting from the tax-supported established religions were abolished. By 1776, the essential characteristic of established religions, as opposed to tolerated religions, was that the former were supported by tax money (or tithes assessed & collected by law); whereas the latter were supported by voluntary contributions alone. Benjamin Franklin wrote in The London Packet, June 3, 1772 of colonial Americans:

They went from England to establish a new country where they might enjoy the free exercise of religion they granted the lands out in townships, requiring that the freeholders should forever support a gospel minister (meaning probably one of the then governing sects) Thus, what is commonly called Presbyterianism became the established religion of that country. All went on well in this way while the same religious opinions were general, the support of minister being raised by a proportionate tax on the lands. But in process of time, some becoming Quakers, some Baptists, and some returning to the Church of England objections were made to the payment of a tax appropriated to the support of a church they had forsaken. The civil magistrates, however, continued for a time to collect and apply the tax according to the original laws which remained in force a payment which it was thought no honest man ought to avoid under the pretense of his having changed his religious persuasion. But the practice being clamoured against by the episcopalians as persecution, the legislature of the Province of the Massachusets-Bay, near thirty years since, passed an act for their relief, requiring indeed the tax to be paid as usual, but directing that the sums levied from members of the Church of England, should be paid over to the Minister of that Church, with whom such members usually attended divine worship, which Minister had power given him to receive and on occasion to recover the same by law. [emphasis in boldface added; italics in original]

Alexander Hamilton wrote in 1775 in his Remarks on the Quebec Bill (No. 11):

The characteristic difference between a tolerated and established religion, consists in this: With respect to the support of the former, the law is passive and improvident, leaving it to those who profess it, to make as much, or as little, provision as they judge expedient; and to vary and alter that provision, as their circumstances may require. In this manner, the Presbyterians, and other sects, are tolerated in England. They are allowed to exercise their religion without molestation, and to maintain their clergy as they think proper. These are wholly dependent upon their congregations, and can exact no more than they stipulate and are satisfied to contribute. But with respect to the support of the latter, the law is active and provident. Certain precise dues, (tithes &c.,) are legally annexed to the clerical office, independent on the liberal contributions of the people While tithes were the free gift of the people the Roman church was only in a state of toleration; but when the law came to take cognizance of them, and, by determining their permanent existence, destroyed the free agency of the people, it then resumed the nature of an establishment. [emphasis added]

James Madison wrote in his letter of 1832 to Rev. Adams:

In the Colonial State of the Country, there were four examples, R.I., N.J., Penna. and Delaware, & the greater part of N.Y. where there were no religious Establishments; the support of Religion being left to the voluntary associations & contributions of individuals

9. So! The essential characteristic of an established religion by 1789 was that an established denomination was supported by mandatory taxes or tithes, but tolerated denominations were supported by voluntary offerings of their adherents. Benjamin Franklins fascinating letter of 1772 shows that the hot topic of the time was the forcing of dissenters to financially support established religion: In England, dissenters from the Church of England were forced to pay tithes to the clergy of that Church. The English supporters of the Church of England responded that the dissenters in America had no room to complain because they compelled American Anglicans to pay taxes to support the Presbyterian worship.

Whose Powers Are Restricted By The First Amendment?

10. Before we look at supreme Court opinions banning the free exercise of religion & abridging free speech, we must consider: Whose powers are restricted by The First Amendment? It reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech

The plain language shows that the First Amendment restricts only Congress powers! The People of the States are free to establish (or dis-establish) any religion they want this is one of the powers retained by the States or the People! Several States did retain their established religions after ratification of the U.S. Constitution in 1789. We saw that in 1807, Presbyterians in Chester, N.H. sold a Quakers cow for non-payment of the Ministers Tax. Not until the Toleration Act of 1819 did the Legislature of N.H. make it illegal for towns, as corporate bodies, to raise money for the support of the gospel. Connecticut did not dis-establish the Congregational Church until they adopted their Constitution of 1818 (see Article Seventh). Massachusetts did not dis-establish the Congregational Church until 1833.

11. So! The First Amendment (1) prohibits Congress from establishing a national denominational religion, (2) prohibits Congress from interfering in the States establishments of the religions of their choice, or dis-establishments thereof, and (3) prohibits Congress from abridging the Peoples freedom of speech. Everyone understood that no one in the federal government had any authority to cancel, abridge, restrain or modify rights of any denomination or the States essential rights of liberty of conscience. The People of Virginia said, when they ratified the U.S. Constitution:

We the Delegates of the People of Virginia having investigated and discussed the proceedings of the Federal Convention Do in the name of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination can be cancelled abridgedrestrained or modified by the Congress by the Senate or House of Representatives acting in any Capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes: & that among other essential rights the liberty of Conscience and of the Press cannot be cancelled abridged restrained or modified by ANY authority of the United States. With these impressions with a solemn appeal to the Searcher of hearts for the purity of our intentions We in the name of the People of Virginia ratify the Constitution recommended on the seventeenth day of September one thousand seven hundred and eighty seven by the Federal Convention for the Government of the United States [emphasis added]

12. But in Gitlow v. People (1925), judges on the supreme Court asserted without any justification in Law or Fact that the 14th Amendment (which applies to the States) 4 incorporates the First Amendment so that the First Amendment now restricts the powers of the States! They said:

we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek 5 .that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question. (p. 666) [emphasis added]

The judges new interpretationof the 14th Amendment became the weapon the Court has used to silence Christians and to seize Power over States & local governments. By claiming that the First Amendment restricts the powers of the States & local governments, the Court set itself up as policeman over the States, over counties, over cities & towns, and even over football fields & court-house lawns! In this way, the Bill of Rights, which was intended to be the States and The Peoples protection against usurpations of power by the federal government, became the weapon the supreme Court used to usurp power and force their wills on all People in Our Land.

How the Supreme Court Re-defined the Historic Term, Establishment of Religion.

13. We have seen that Benjamin Franklin, Alexander Hamilton, and James Madison said the distinguishing characteristic of an established religion was that the established denomination was supported by mandatory taxes or tithes, whereas tolerated denominations were supported by voluntary offerings of their adherents.

14. Now let us see how judges on the supreme Court re-defined establishment of religion in order to ban prayer in public schools. Engel v. Vitale (1962), is the case where six men outlawed non-denominational prayer in the public schools. A public school board in New York had directed that the following prayer be said at school:

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.

Any student was free to remain seated or leave the room, without any comments by the teacher one way or the other.

But six men on the supreme Court said this short, non-denominational and voluntary prayer constituted an establishment of religion in violation of the First Amendment! They (Hugo Black 6 Warren, Clark, Harlan, Brennan, and Douglas) admitted that allowing school children to say this prayer did not really establish a religion! They admitted that the prayer:

does not amount to a total establishment of one particular religious sect to the exclusion of all others that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago(p.436)

Douglas wrote in his concurring opinion:

I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words. A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public school teacher leads. (p.442)

But these six men didnt want children praying in school. So, they just redefined establishment of religion to mean, a religious activity, a prayer (p.424), having public school children hear or recite a prayer that somebody in government composed (pp.425-427), writing or sanctioning official prayers(p.435), and government endorsement of a prayer (p.436).

These six men also admitted that even though no coercion was present, and even though the prayer was denominationally neutral, it still constituted an unlawful establishment of religion:

The Establishment Clause does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. (p.430)

Douglas said in his concurring opinion:

There is no element of compulsion or coercion in New Yorks regulation requiring that public schools be opened each day with the prayer (p.438); there is no effort at indoctrination, and no attempt at exposition New Yorks prayer does not involve any element of proselytizing (p.439).

15. They thus redefined established religion to describe what the N.Y. public schools were doing so that they could then outlaw it. They dont have that right! We have quoted Benjamin Franklin, Alexander Hamilton & James Madison as showing that the essence of an established religion is that the civil government selects a particular religious denomination (Roman Catholic or Church of England or Congregational or Presbyterian, etc., and forces everybody to financially support that particular denomination with taxes or tithes. 7

16. Well! Since the evil from which the supreme Court in Engel v. Vitale pretended it sought to protect our public school children was having them recite or hear (if they wanted to) a one-sentence non-denominational prayer which somebody in government composed; that monstrous evil can be avoided if the children write their own prayers, right?

17. Oh no!, said six judges on the supreme Court in Santa Fe Independent School Dist. v. Doe (2000). Here, a public school district permitted, but did not require, student-initiated, student-led, nonsectarian, non-proselytizing prayer at home football games. But Justices Stevens, Ginsberg, Souter, Breyer, OConnor, & Kennedy said this constituted an establishment of religion in violation of the First Amendment, because the prayers were public speech authorized by government policy taking place on government property at government sponsored school events, and the policy involved perceived and actual government endorsement of prayer.

The six also said on page 309-310 of their opinion:

School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community Lynch, 465 U.S. at 688

Do you see? They cite themselves their earlier opinion in Lynch as authority! 8Furthermore, making nonadherents feel like outsiders is not a constitutional standard; it is the judges own silly standard.

The six said on page 310:

We explained in Lee that the preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere. 505 U.S. at 589

Again, they cite themselves their opinion in Lee as authority! Furthermore, the Constitution does not restrict religion to the private sphere it forbids Congress from prohibiting its free exercise ANYWHERE!

18. Again, the six judges in Santa Fe re-defined establishment of religion to describe what the Santa Fe School District was doing so that they could then outlaw it.

19. In his dissenting opinion, Rehnquist, joined by Scalia & Thomas, said the majority opinion:

bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God. (p. 318) [emphasis added]

The One-Way Only Wall of Separation Between Church and State.

20. We have all heard the chant, mindlessly recited, separation of church and state. Many believe this phrase is in the Constitution, and that it forbids any Christian influence in the public square. But that is false. The phrase is nowhere in the Constitution, and it is not a constitutional principle. The First Amendment says Congress may not legally establish one [religious] creed as official truth and support it with its full financial and coercive powers; 9 and it may not prohibit the free exercise of religion or religious speech ANYWHERE.

21. We saw that in Connecticut, the Congregational Church was the established religion until Connecticut dis-established that Church with its Constitution of 1818. Earlier, on October 7, 1801, Baptists in Danbury, Connecticut wrote a letter to President Thomas Jefferson in which they expressed their distress that in Connecticut, where they were a religious minority,

religion is considered as the first object of legislation; and therefore what religious privileges we enjoy (as a minor part of the state) we enjoy as favors granted, and not as inalienable rights; and these favors we receive at the expense of such degrading acknowledgements as are inconsistent with the rights of freemen

*****

Sir, we are sensible that the president of the United States is not the national legislator, and also sensible that the national government cannot destroy the laws of each state; but our hopes are strong that the sentiments of our beloved president, which have had such genial effect already, like the radiant beams of the sun, will shine and prevail through all these statestilltyranny be destroyed from the earth

These Baptists thus expressed their hope that the People of Connecticut would be influenced by Jeffersons sentiments and dis-establish the Congregational Church in Connecticut.

22. In his response dated January 2, 1802, Jefferson indicated that he hoped the People of Connecticut would follow the example of the whole American people:

Believing with you that religion is a matter which lies solely between man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights

Jefferson agreed that civil government ought not dictate to People in matters of religious belief, and pointed out that the First Amendment prevents Congressfrom doing this. He did not say that religion must be relegated to the private sphere! He used the First Amendment as his model and it restricts only Congress, not religion.

Jefferson and the Danbury Baptists both knew the federal government had no authority to dis-establish Connecticuts official Church.

23. An earlier Draft of Jeffersons letter with recently discovered text reads:

I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof; thus building a wall of eternal separation between Church & State. Congress thus inhibited from acts respecting religion, and the Executive authorized only to execute their acts [emphasis added]

24. Dr. Hutsons article shows that on Sunday, Jan 3, 1802, right after Jefferson wrote the letter to the Danbury Baptists, he attended worship services in the House of Representatives, where John Leland, a Baptist minister and well known advocate of religious liberty, preached. During the remainder of Jeffersons two administrations, he attended religious services conducted in the House constantly. Jefferson granted permission to various denominations to worship in executive office buildings, where four-hour communion services were held

Jefferson had no problem with sectarian praying, preaching & communion serving on public property! It could be said that he endorsed Christianity! Those who are so determined to eradicate Christianity from our Country walk on a slender reed when they claim Jefferson as an ally.

25. In Engel v. Vitale, Hugo Black said the reading of the prayer [Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country] before children in the N.Y. public schools who chose to hear it:

breaches the constitutional wall of separation between Church and State (p.425).

Even though this metaphor of wall of separation between church and state is nowhere in the Constitution, this Klansman turned supreme Court justice misrepresented it as a constitutional principle! 10

Furthermore, Hugo Black misapplied the metaphor: The wall of separation metaphor doesnt apply to what the N.Y. public schools were doing because The State of New York isnt Congress; and New York, with its one sentence non-denominational prayer, wasnt establishing a religion . What Jeffersons metaphor applied to was an Act of Congress selecting a particular denomination (Roman Catholic or Episcopalian or Congregational or Presbyterian, or Baptist, etc., and forcing everybody to financially support that particular denomination with taxes or tithes.

Congress may not prohibit the free exercise of religion anywhere neither may the supreme Court; and that Jefferson thought religion should influence those in civil government is clear from all those church services & celebrations of communion which were constantly held in the House of Representatives and the Executive Office Building!

Lawlessness on the Court.

26. Let us summarize what the supreme Court has done to free speech and the free exercise of religion throughout our Land. They have violated the First Amendment in four ways:

a) Even though the First Amendment expressly restricts only the law-making powers of Congress, and thus was intended to be the States and the Peoples protection from Congress; the supreme Court reversed the purpose of the First Amendment so that it became the tool the Court uses to silence speech they dont like and to suppress the free exercise of a religion they dont like, all throughout the States, counties, towns & villages, all the way down to football fields & county courthouse lawns.

b) Even though the First Amendment says, an establishment of religion, a phrase which has a distinct historical meaning, the Court from time to time re-defines the term so as to describe the circumstances surrounding religious speech they dont like so that they can declare it unconstitutional. In effect, they claim the right to sit as a continuing constitutional convention amending the words in the U.S. Constitution to elevate into Law their own WILLS.

c) They outlawed the free exercise of religion; and they outlawed free speech when the subject is religious because they dont like it. They took away from their Sovereign their Creators a right expressly reserved by us in the U.S. Constitution. Congress may not stop people from praying anywhere, or posting The Ten Commandments anywhere, or preaching in any public areas. Neither may the Supreme Court. But those lawless usurpers took away OUR religions and replaced them with THEIR humanist & statist religion which they seek to force on us.

d) By claiming that their opinions have the effect of law, they made laws respecting religion, and laws abridging speech they dont like, even though the federal government has no authority to act in this area. When Congress is prohibited from making laws in an area, the supreme Court certainly may not make laws in that area! The only way religion or speech could ever properly get before the supreme Court would be if CONGRESS VIOLATED the First Amendment and Art. I., 8 by making a law respecting the establishment of religion or prohibiting the free exercise thereof, or by making a law abridging the freedom of speech. The States and political subdivisions retained the rights to make whatever laws they please respecting religion (subject only to any limitations imposed by their own State Constitutions), and the U.S. Supreme Court has no constitutional authority whatsoever to interfere.

27. Note this well: Federal judges do not have lifetime appointments. They serve during good Behaviour only (Art. III, 1). The constitutional remedy for usurping federal judges is impeachment, trial, conviction & removal. Federalist No. 81 (8th para), A. Hamilton.

In the Year of our Lord, October 24, 2010 11

Publius Huldah.

Notes: (Read them they are interesting youll see!)

1 A History of the Congregational Churches in the United States, Williston Walker (1894), pp 114-149; Google digitized book.

2 A History of the United States: A Century of Colonial History, 1660-1760, Edward Channing (1908), pp 423- 454; Google digitized book.

3 Id.

4 The 14th Amendment (ratified 1868) says, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Professor Raoul Bergers meticulously researched book, Government by Judiciary: The Transformation of the Fourteenth Amendment, proves that the purpose of the 14th Amendment was to protect freed slaves from southern Black Codes which denied them basic rights of citizenship. The 14th Amendment has nothing to do with silencing Christians!

John Whiteheads essay, The Fading Constitution, in The Second American Revolution, Crossway Books (1982), shows how the supreme Court turned the Bill of Rights, which was once a source of freedom against federal governmental interference [into] a source of intervention by the federal government into the very heart of the state governments. PH highly recommends Whiteheads book to lawyers & laymen alike.

5 Just three years earlier, the supreme Court said in Prudential Ins. Co. v. Cheek (1922):

But, as we have stated, neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about freedom of speech nor does it confer any right of privacy upon either persons or corporations. (page 543) [emphasis added]

Do you see? First it doesnt; then, three years later it does!

View original post here:

First Amendment - American Constitution Center

Some of the victims who survived the Capital Gazette shooting say they also think something bigger and broader was attacked too the First Amendment.

In literal terms, theres no denying that the five people killed inside the Capital Gazette newsroom three years ago were targeted specifically for being employed by the newspaper.

But after having time to reflect, some of the victims who survived say they also think something bigger and broader was attacked too the First Amendment something they worry is under continued attack today.

Former Capital Gazette reporter Selene San Felice, who now works for Axios in Florida, said it was an attack on the First Amendment, but the First Amendment is still being attacked even if people arent shooting us, she said.

She and photographer Paul Gillespie cited the low wages many community news outlets pay as well as the steep decline in jobs and publications that still exist as ongoing threats to the news industry as a whole, and the First Amendment in particular.

Local news is so important to this country, Gillespie said. Were in the hearts of these neighborhoods all across our country telling stories of our neighbors. Us closing down as much as we have, like all across the country losing journalists, photojournalists, its a great loss and once were gone its going to be sad because no one is going to be out there covering your kids football games or community issues, the city council meetings and all that stuff.

San Felice said one reason shes still in the journalism industry is to help honor the spirits of the five people who were killed, including her former editors and mentors Rob Hiaasen and Gerald Fischman.

A shooter cant take down a newspaper, she said. Newspapers will always be around in some form, journalists will always be around in some form so no matter many of us you kill there will always be more of us to tell the truth.

Anne Arundel County States Attorney Anne Colt Leitess said, in her opinion, truth is what was really attacked.

The First Amendment allows people to say things the Capital did and the problem is the defendant could not handle the truth and he wanted to twist it into something else, she said.

Journalism is an opportunity for truths to be told, she said. I can see why people think this is about journalism. It is about truth whether its someone speaking the truth to someones face, on television, in the newspaper, the truth was attacked that day.

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Some Capital Gazette shooting victims say they werent the only targets, 1st Amendment was - WTOP

The Supreme Court is set to hear arguments in an important legal challenge to New Yorks concealed carry law. The law requires people registering for concealed carry gun licenses to demonstrate proper cause in order to do so, and in particular to demonstrate a specific need for self-defense if they seek to carry a gun for that purpose.

The question in the case is whether the Second Amendment permits New York to restrict the carriage of firearms in this manner. The meaning, intent and reach of the Second Amendment remain a matter of deep controversy, but the Supreme Court has made clear that Second Amendment rights are not absolute. Regulations on carrying guns in public, both open and concealed, have been common measures throughout American history as a means of maintaining peace and safety in public places. On September 21, the ACLU and the New York Civil Liberties Union filed a friend-of-court brief in the Supreme Court in New York State Rifle & Pistol Association v. Bruen, arguing that New Yorks limits on carrying guns in public spaces are constitutional. In particular, we argued that states have an important, and historically grounded, interest in restricting the carrying of guns in order to make public spaces safe for democratic participation, including First Amendment activity such as assembly, association, and speech.

What important First Amendment interests are at stake when it comes to carrying guns in public? We sat down with David Cole, ACLU national legal director and Perry Grossman, senior staff attorney with the New York Civil Liberties Union, to address some key questions.

How and why are concealed carry restrictions a First Amendment issue?

States have many justifications for regulating the public carrying of weapons, concealed or otherwise, but one especially important justification is that such restrictions can facilitate civic engagement by promoting safety in public spaces and reducing the chances that any disagreements do not lead to lethal violence.

Democratic self-governance depends on the free-flowing, sometimes heated exchange of ideas, including views that may be shocking, upsetting, or infuriating. Streets, sidewalks, parks, and other public spaces are essential spaces for airing views that may be controversial or unpopular. When people dont know who may be carrying a concealed weapon, but know that state law allows most, if not all, people to do so, they may rightly fear voicing opinions or assembling with groups that may be controversial or unpopular. One cannot know whether or when an armed person will turn to violence in response to a remark that offends them. Regulating concealed weapons in public promotes robust public debate and even harsh criticism by reducing the likelihood that heated arguments will escalate to intimidation and violence.

What is your response to concerns that criminal laws restricting the possession and carrying of guns continue to be disproportionately applied against Black people?

Black and Brown communities are undeniably disproportionately targeted, policed, and harmed by our criminal legal system, and there is no reason to believe gun law enforcement is any exception. We condemn such discrimination. Discriminatory law enforcement, of gun laws or any other laws, violates the Equal Protection Clause, and warrants serious attention from courts, the police, and our political leaders. But the question presented here is whether the Second Amendment prohibits the states from imposing any restrictions on carrying guns in public, regardless of their motivation or enforcement. Research shows that Black communities are disproportionately harmed by gun violence and that restrictions on gun possession can reduce that harm. Where criminal laws governing firearm possession are either motivated by discrimination or enforced in discriminatory ways, those laws should be challenged under the Equal Protection Clause and other anti-discrimination laws. At the same time, states should not be prohibited from enacting gun restrictions that can reduce injuries and deaths.

Have the ACLU and NYCLU historically advocated proactively on Second Amendment issues? If not, why now?

Until recently, Second Amendment jurisprudence was fairly well-settled and stable. Given the amendments reference to a well regulated Militia and the security of a free State, the courts for nearly 100 years took the position that the Second Amendment protected only a collective right, not an individual right. That longstanding view was upended in 2008 when the Supreme Court in District of Columbia v. Heller ruled that the Second Amendment protected an individual right to possess common firearms in the home for self-defense. Two years later, in McDonald v. City of Chicago, the court ruled that the Second Amendment also limited the ability of state and local governments to restrict possession of common firearms in the home. So Second Amendment jurisprudence at the Supreme Court is still in its infancy. This is only the third gun rights case the court will decide since the early 20th century.

We filed a brief with the Supreme Court because in our view, this Second Amendment case has important free speech and First Amendment implications.

Is there a meaningful difference between concealed carry and open carry in terms of their effect on public life?

Whether carried openly or concealed, weapons in public places present safety risks that can inhibit the full exercise of First Amendment rights. Where states have adopted more permissive public carry laws, there have been recent examples of guns interfering with free speech, free assembly, and even the democratic process itself. Open carry can disrupt the public square through the intimidating display of lethal weapons. For example, in 2020, armed protesters forced the suspension of the activities of democratically-elected state legislatures in Michigan and Oregon.

Permissive concealed carry laws can have similarly pernicious consequences. People carrying concealed weapons have used their guns to threaten, injure, or kill people or disrupt speakers and protests espousing views with which they disagreed. Permissive concealed carry can deter people from speaking freely, protesting, or otherwise engaging in civic life by undermining confidence in the safety of spaces where public exchange takes place. Concealed carry restrictions will reduce the fear of intimidation and violence that can deter people from participating in civic life in public places.

What research supports the link between the proliferation of guns and a chilling effect on the exercise of First Amendment speech and assembly rights?

An analysis of more than 30,000 public demonstrations in the United States between January 2020 and June 2021 found that protests in which people are carrying arms are more than six times as likely to escalate into violence or destruction as unarmed demonstrations. The relatively greater eruption of violence or destruction at armed protests is consistent with social science research on the weapons effect, showing that the presence of weapons is likely to make both the carrier and non-carrier more aggressive. Research aggregated by the Harvard Injury Control Research Center shows that the presence of guns can escalate arguments into incidents of intimidation and violence and the utility of guns as instruments of self-defense may be limited. Research further shows that most Americans are not impervious to the psychological effects of guns in their community, and that by a margin of more than three to one, more guns make others in the community feel less safe rather than more safe, with women and members of minority groups substantially more likely to report feeling less safe than men and whites.

More here:

Conceal and Carry Restrictions Can Help Protect Freedom of Expression - nyclu.org

This interview is from SDPB's daily public-affairs show,In the Moment, hosted by Lori Walsh.

The First Amendment of the U.S. Constitution is about much more than the guarantee to stand in a public space and speak your mind.

Deborah Caldwell Stone, director of the American Library Association Office for Intellectual Freedom, reminds people the First Amendment protects something essential to who we are as human beings.

"It really needs to go further than that to respect the dignity of every individual to have the right to read and think and speak as they like as part of their humanity," Caldwell Stone says. "I try to expand that conversation to remember that what we're talking about is the ability of every person to express themselves and define themselves in works of literature and what is published in the world."

This is national Banned Books Week. The American Library Association publishes a list of frequently challenged books each year, tracking the trends of moral panics and attacks on libraries and library offerings.

This year, the LGBTQ themed George by Alex Gino, Stamped: Racism, Antiracism, and Youby Ibram X. Kendi and Jason Reynolds, and The Absolutely True Diary of a Part-Time Indianby Sherman Alexie all made the Top 10 Most Challenged Books List.

Some books on the 2020 list have appeared before (hello, old friend, To Kill a Mockingbird). Others are newcomers and reflect trends in nationwide censorship efforts.

"A large number of challenges are coming in to these books that deal with Black American history, with the history of racism, or addressing racism in society, often under this claim that they represent Critical Race Theory, which is not accurate," Caldwell Stone says.

The South Dakota Library Association holds its annual conference on Sept. 29. The conference features speakers and sessions that discuss access for library patrons to information and technology. The organization also connects South Dakota librarians with resources for protecting intellectual freedom in their communities.

More here:

Libraries: Strongholds of the First Amendment | SDPB - SDPB Radio

Last month, the U.S. Postal Service began offering check-cashing services at locations in metro Washington, Baltimore, and the Bronx. Although it's just a pilot in a few markets, the program is a baby step toward the reestablishment of postal banking, which USPS discontinued in 1967.

Progressives have long seen postal banking as a way to bring millions of people without bank accounts into the regular financial system. Because they have bad credit, trouble maintaining a minimum balance, or lack a fixed address, these customers rely on non-bank establishments like check-cashing stores and payday lenders. Due to their high fees and interest rates, such operations were targeted for regulation when the Consumer Financial Protection Bureau was established in 2011.

Conservatives and libertarians have mostly rejected that effort, including proposals for a public alternative. The arguments invoke classic small-government themes: Offering banking services through the postal service would be expensive, unnecessary, and compete unfairly with private enterprise. There's also good reason to doubt that the Postal Service has the capacity to administer complicated products such as loans. It canbarely deliver the mail in some of the same markets designated for the new program.

For the last few years, though, the right has been engaged in a broad reconsideration of the scope of government. As populists challenge traditional opposition to tariffs and industrial policy, they might also consider whether a limited version of postal banking makes sense in the 21st century. For all its shortcomings, the USPS has an advantage private financial institutions lack: As a branch of the national government, its banking activities would likely be subject to the First Amendment.

First Amendment protection means customers of a postal bank could not have their accounts closed or transactions refusedbecause they were associated with controversial political activity.Particularly if it included an online payment option, postal bankingcould make providea refuge for conservatives or other dissenters who fear the emergence of an de facto social credit system. Private payment processors,by contrast, have been cracking downon the use of their platforms for constitutionally protected if unappealing purposes.

Writing in The New York Times, James Poulos recently defended Bitcoin and other cryptocurrencies as a means of protecting citizens' private financial affairs from public influence. Paradoxically, banking with the state itself would have the same effect. Unlike accounts on PayPal, the Constitution can't be canceled.

View post:

The conservative case for postal banking - The Week Magazine

Good morning and welcome to Fox News First. Here's what you need to know as you start your day

DOJ launching effort to combat threats of violence against school officialsThe Department of Justice is launching an effort to combat what it says is an "increase" in "threats of violence" against school officials and teachers across the country.

"Threats against public servants are not only illegal, they run counter to our nations core values," Attorney General Garland said of the effort in a statement Monday. "Those who dedicate their time and energy to ensuring that our children receive a proper education in a safe environment deserve to be able to do their work without fear for their safety."

Garland directed the FBI and U.S. attorney's offices to hold meetings with federal, state, and local law enforcement leaders in the next 30 days, during which they will discuss ways to combat what the DOJ called a "disturbing trend" of harassment and threats against school officials.

Critics say the move amounts to an attempt by the Biden administration to bully parents from exercising their First Amendment rights.

The DOJ will also be launching a task force aimed at addressing the issue while attempting to determine how the federal government could use its powers to prosecute crimes and to assist local law enforcement in incidents that are not federal crimes.

Specialized training will also be made available for local school boards and administrators to assist them in recognizing behaviors that constitute a threat, as well as helping them report the incidents to appropriate law enforcement agencies while preserving evidence to assist in the prosecution of crimes. CLICK HERE FOR MORE ON OUR TOP STORY.

In other developments:- Garland deeply saddened by 2 recent deaths of federal agents while on duty- Calif. judge denies restraining order request against school mask mandate- Sinema fires back after far-left activists record her in ASU bathroom: 'Unacceptable behavior'- Former education secretary Bill Bennett launches program to counter 'politicized' content in schools- Activist who recorded Sinema in ASU bathroom defends actions, accuses critics of being 'tone police'

Brian Laundrie manhunt: Cassie Laundrie unleashes after Gabby Petito homicideFlorida fugitive Brian Laundries sister told protesters outside her Lakewood Ranch home Monday that her family has been ignoring her following the disappearance of her brother and the death of his fiance.

When asked if her parents were helping Brian Laundrie evade authorities, she said, "I don't know" and that she hadn't been able to speak with them.

"I'm in the boat where I'm getting ignored by my family and thrown under the bus by my family's attorney," Cassie Laundrie said to a group of protesters Monday in video shared by TikTok user @chroniclesofolivia.

The lawyer Laundrie seemed to be referencing, Steve Bertolino, blamed the media.

"I do not represent Cassie Laundrie," he told Fox News Digital in a text message Monday night. "Cassies comments can only be attributed to the press twisting my words and hers, which were only given to clarify prior mischaracterizations by the press, with the hopes of further sensationalizing this tragic story."

Laundrie made her first public remarks since an ABC News interview last month to a group of protesters at her home while a manhunt is underway for her brother the subject of a federal warrant for alleged debit card fraud. CLICK HERE FOR MORE.

In other developments:- Gabby Petito: Brian Laundrie's sister says her family has been ignoring her: LIVE UPDATES- Possible Brian Laundrie sighting: Hear 911 call from Appalachian Trail hiker- Hiker describes 'weird' encounter with man he believes was Brian Laundrie on 'Fox & Friends First'- Philadelphia nurse fatally shoots co-worker at hospital, wounds 2 officers in gunfight- Moab murders: Kylen Schulte's father appeals for help solving newlyweds' slaying

Facebook and Instagram back after longest worldwide outage ever; company details root causeFacebook announced in a statement late Monday that its platforms are "back up and running" after a massive global outage plunged its main site, Instagram, and WhatsApp platforms into the dark earlier in the day.

The company said in a blog post that its engineering teams found that "configuration changes on the backbone routers that coordinate network traffic between our data centers caused issues that interrupted this communication. This disruption to network traffic had a cascading effect on the way our data centers communicate, bringing our services to a halt."

While these platforms are running again, "were actively working to fully return them to regular operations."

"We want to make clear at this time we believe the root cause of this outage was a faulty configuration change. We also have no evidence that user data was compromised as a result of this downtime," the statement read.

In addition to Facebook, DownDetector had reported that T-Mobile, Verizon, AT&T, Google, Twitter, TikTok, Zoom, and Amazon Web Services users were experiencing outages.

Facebook whistleblower Frances Haugen is set to testify on Tuesday morning against the social media giant.

On Sunday, Haugen was revealed on CBS' "60 Minutes" as the woman who anonymously filed complaints with federal law enforcement that Facebook's own research shows how it magnifies hate and misinformation, leads to increased polarization, and that Instagram, specifically, can harm teenage girls' mental health. CLICK HERE FOR MORE.

In other developments:- GOP Senate candidate Sam Brown fires back at Twitter as tech giant admits his account was banned by 'mistake'- Facebook whistleblower reveals identity, set to appear before Senate subcommittee- Varney: The Facebook whistleblower is Big Techs biggest threat

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TODAY'S MUST-READS:- Sinema bombarded on packed flight by her voter as left eats their own- Brady reveals which NFL team he loves to beat the most- Francis Collins, longtime head of NIH, will resign, report says- Scalise shoots back after book claims Melania Trump refused to visit his family: 'pathetic'- Lovely Warren, Rochester mayor, will resign as part of plea deal

THE LATEST FROM FOX BUSINESS:- Empty buildings in Chinas provincial cities testify to Evergrande debacle- Black former Tesla worker awarded more than $130 million in damages- Hochul pulls plug on Cuomos $2.1B wrong-way AirTrain- Mortgage payments are getting more and more unaffordable- Powerball: Numbers drawn for $685 million jackpot

SOME PARTING WORDS

Sean Hannity clapped back atJoe Biden Monday after the president told reporters that the harassment faced by Democratic Sens. Joe Manchin and Kyrsten Sinema over their lack of support for critical items in his domestic agenda is just"part of the process."

"You wont stick upfor your fellow senators.I guess its all part of theprocess," the host said on "Hannity". "Getting videotaped in a bathroomstall.Is that part of the process yousupport?What happened to standing up fora womans right to privacy? What about showing up atsomeones house and shoutingthem down where they live?Thats part of the process?What if someone came to yourbasement during your mid-day nap?Its not appropriate.Its wrong.Its unethical."

Not signed up yet for Fox News First? Clickhere to find out what you're missing.

Fox NewsGo Watch page is now available, providing visitors with Pay TV provider options in their area carrying Fox News Channel and Fox Business Network.

Fox News First was compiled by Fox News'David Aaro. Thank you for making us your first choice in the morning! Well see you in your inbox first thing Wednesday.

Continued here:

DOJ launching effort to combat threats of violence against school officials across US - Fox News

The Kurt Vonnegut Museum and Library had been open in its new home for barely four months when the pandemic swept in, forcing cultural institutions to shut down temporarily. But it put the ensuing closureto work.

The museum applied to the American Library Association's United for Libraries to become a Literary Landmark, which designates a location that's linked to a deceased literary figure. It was selected, becoming the first of such landmarks in Indiana and joining the likes of Mark Twain and Zora Neale Hurston, among other famous names.

Now, "A Community Thrives" grant from the Gannett Foundationfor $50,000 will allow the museum to properly celebrate the designation and host programs around free speech in 2022, which is also the 100th anniversary of Vonnegut's birth.

Gannett is the parent company of IndyStar, USA TODAY and hundreds of other newspapers across the country.

The library is one of 16 recipients of grants ranging from $25,000 to $100,000 across the country. All grant recipientsraised money through crowdfunding before receiving a grant.

Vonnegut's love letters: 226 letters were found in an attic. Read and see them.

The $2.3 million initiative supports organizations working to address a range of social issues. This year, those issues included homelessness, mental health care for LGBTQ people, reproductive care and girls' education, to name a few. Since 2017, A Community Thrives has distributed $17 million in grants and donations to community-based organizations.

Now in its fifth year, A Community Thrives awards grants to many significant causes helping to improve lives. Each of our grant winners is making a positive impact, and we are proud to support organizations that share our purpose,"Gannett CEO Mike Reed said.

Its a great day when IndyStar through our companys foundation helps arts and literature thrive in Indianapolis, and we can be aligned with an organization like the Kurt Vonnegut Museum and Library," said Bro Krift, interim executive editor of IndyStar. "But whats truly awesome is how the museum will use the money to promote free speech, vital to how we live and how we learn to live better across society.

The Vonnegut Library's celebration for the Literary Landmark designation will be April 10, 2022, on Palm Sunday. Fittingly, it's also the name of a collection of essays, speeches and letters by Vonnegut, from which they'll read excerpts. Speakers and performers that day will include producer and author A'Lelia Bundles as well as artists and musicians Tim Youd, David Sasso, Kat Wallace and Rob Dixon.

Free hula hoops for the first 100 students with ID will nod to Vonnegut's quote: "I am an American fad of a slightly higher order than the hula hoop."Brics will give away free ice cream, and 100 students also will receive a free copy of "Slaughterhouse-Five." Comedian Gary Gulman will appear at an evening fundraising event.

"It's not just celebrating the actual books that Vonnegut wrote,"founder and executive director Julia Whiteheadsaid."It's celebrating the creative process and the fact that this person from Indianapolis went off and served his country in World War II and had a very important story to tell and continued to use the arts and humanities throughout his life to cope with that war experience and to engage with his audience.

The grant also will go toward discussions and programs around free speech, the women who shaped Vonnegut, and the author and neighborhood's connection to jazz. For "Vonnegut and Banned Stories," the museum will work with the Underground Railroad Museum, among others, for discussions that show how stories that come from conflict reveal the history of the First Amendment and build compassion.

"It's the process of sharing your story with the public that makes it more real and representative of the human condition. Vonnegut was great about not only telling his story but telling creative fictional character stories that make the reader think differently about life," Whitehead said. "It's basically feeling like you're not alone."

Stories of Vonnegut's mother Edith Lieber Vonnegut, family cook and housekeeper Ida Young, and Vonnegut's first wife Jane Cox will be part of "The Women Who Shaped Vonnegut" exhibit. Young, who was a descendant of people who had been enslaved, taught the young author about civil rights andChristianity.Vonnegut's mother was friends with writers and wrote creatively herself. Cox edited a lot of Vonnegut's early work and advocated for him to help the world discoverhis talent.

Unstuck in time, unstuck from development hell: A Kurt Vonnegut documentary more than 30 years in the making is heading to theaters

An upcoming sidewalk exhibition,"Vonnegut and Jazz," will highlight the musicians who performed in Indianapolis between 1922 and 1945, along with the author's love for it, Whitehead said. The museum, at 543 Indiana Ave., sits in the neighborhood that once hosted an iconic jazz scene. The Gannett Foundation grant will support the final phase of the exhibit, most of which will be free.

The Vonnegut museum physically opened in 2011 atat 340 N. Senate Ave. and remained there until January 2019, when the lease was up. As the museum raised money to buy its permanent home on Indiana Avenue, it opened a temporary gift shop in Circle Centre Mall.

Since the institution's 2019 grand opening in its new home, it has fleshed out its collection and made building improvements. It now has a wheelchair rampby the front doorand a stocked shop with a storefront visible from the street. Art includes a screen print of Vonnegut's doodle ad for Absolut Vodka and an enlarged 1973 letter from the author to a North Dakota school board chair after the board had "Slaughterhouse-Five" copies burned.

Moving forward, the museum is raising money to receive matching grants from the National Endowment for the Humanities so it canupdate and repair its historic building, Whitehead said.She's in talks with a restaurant to open a first-floor cafe.And the museum has been expanding its youth writing program and developing relationships with students at Shortridge, Crispus Attucks, George Washington and Arsenal Tech high schools.

The institution also is setting its gaze nationally.Starting next year, it will take programs about Vonnegut's free speech and common decency ideals into all 50 states, Whitehead said. The Vonnegut museum is continuing diversity, equity, inclusion and access work by broadening the voices on its board and on committees that put together programming, she said.

"That's been quite possibly the most exciting change over the past year and a half, is just getting more people involved," Whitehead said. "In some cases, it was a matter of people just not knowing we were here, people who were already Vonnegut fans. But in other cases, it has been introducing people to the work we do."

In addition to the national grants,leaders across Gannett's USA TODAY Network of more than 250 news sites in 46 states selected other nonprofit organizations to receive community operating grants that start at $2,500. Organizations that focus on building up historically under-resourced and underserved groups were especially be considered. Twelve organizations were selected in Indiana.

"Across the country, A Community Thrives grants link USA TODAY Network brands to the communities in which we operate and beyond,"said Sue Madden, director of the Gannett Foundation. "Our reporters work every day to empower communities to thrive, and this program helps fulfill that core purpose."

For the full list of grantees, go towww.gannettfoundation.org/act.

Looking for things to do? Our newsletter has the best concerts, art, shows and more and the stories behind them

Jeanine Santuccicontributed to this report.

Contact IndyStar reporter Domenica Bongiovanni at 317-444-7339 or d.bongiovanni@indystar.com. Follow her on Facebook, Instagram or Twitter: @domenicareports.

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Vonnegut Library gets $50000 grant from Gannett Foundation. Here's how they'll use it. - IndyStar

The U.S. government is reportedly secretly issuing warrants for Google to provide user data on anyone typing in certain search terms, raising fears that innocent online users could get caught up in serious crime investigations at a greater frequency than previously thought.

In an attempt to track down criminals, federal investigators have started using new "keyword warrants" and used them to ask Google to provide them information on anyone who searched a victim's name or their address during a particular year, an accidentally unsealed court document that Forbes found shows.

GOOGLE'S METHODS FOR SPYING ON EMPLOYEES REVEALED IN REPORT

Google has to respond to thousands of warrant orders each year, but the keyword warrants are a relatively new strategy used by the government and are controversial.

Trawling through Googles search history database enables police to identify people merely based on what they might have been thinking about, for whatever reason, at some point in the past, Jennifer Granick, surveillance and cybersecurity counsel at the American Civil Liberties Union, told Forbes.

This never-before-possible technique threatens First Amendment interests and will inevitably sweep up innocent people, especially if the keyword terms are not unique and the time frame not precise. To make matters worse, police are currently doing this in secret, which insulates the practice from public debate and regulation, she added.

The government said that the scope of the warrants is limited to avoid implicating innocent people who happen to search for certain terms, but it's not publicly disclosed how many users' data are sent to the government and what the extent of the warrant requests are.

Google has defended its decision to respond to the warrants and said it protects users when doing so.

CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER

As with all law enforcement requests, we have a rigorous process that is designed to protect the privacy of our users while supporting the important work of law enforcement, a Google spokesperson said.

Story continues

Washington Examiner Videos

Tags: News, Policy, Surveillance, Google, Big Tech, Warrants, online commerce

Original Author: Nihal Krishan

Original Location: Government secretly orders Google to track anyone searching certain names, addresses, and phone numbers

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Government secretly orders Google to track anyone searching certain names, addresses, and phone numbers - Yahoo News

The second modification to the Texas Code creates a cause of action against litigants and their lawyers who challenge the enforceability of any Texas law that regulates or restricts abortion, including but not limited to S.B. 8. See SB 8 4 (amending Texas Civ. Prac. & Remedies Code 30.022). The provision applies to cases filed in state or federal court. If the party defending the Texas law prevails, that party can seek fees and costs in a new action filed in Texas state court within three years of final judgment in the underlying action. Id. 30.022(c). The lawyer is jointly and severally liable with the client for the fees and costs. The fee-shifting provision, although somewhat ambiguous, appears to be entirely one-way; i.e., if the party challenging the law prevails, that party is not entitled (through 30.022) to recover fees and costs from the opposing party or counsel.

Many other statutes and rules expose lawyers to attorneys fees for misconduct during litigation, but as a few commentators have explained, S.B. 8 appears to be the first law that makes lawyers liable based solely on the issue they are litigating. In view of other provisions in S.B. 8 that intentionally frustrate judicial challenges of the statute, it seems beyond doubt that one purpose of 30.022(c) is to impede a litigants attempt to obtain counsel to challenge a Texas abortion law.

For cases litigated in federal court, 30.022 violates at least the spirit of 28 U.S.C. 1654, which provides that In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein. Section 1654 traces back to the Judiciary Act of 1789. See 1 Stat. 73, 35 (Sep. 24, 1789). Thus, the right to private (or retained) counsel in federal judicial proceedings is older than the Sixth Amendment and the rest of the Bill of Rights, and the right to retained counsel is so accepted that case law defining its limits in federal civil cases is sparse. Most case law under 1654 relates to the right to proceed pro se, but the statute also codifies a right to proceed with private counsel of ones choice. See Texas Catastrophe Property Ins. Assn v. Morales, 975 F.2d 1178, 1181 (5th Cir. 1992); McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1262 & n.24 (5th Cir. 1983); Bottaro v. Hatton Assocs., 680 F.2d 895, 897 (2d Cir. 1982). As the text of the statute provides, the right is subject to reasonable rules of such [i.e., United States] courts. A body of precedent makes clear that the right to counsel does not override, for instance, the requirement that an attorney hold a valid license, which typically is conferred and regulated in the first instance by state law. E.g., Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991). But ethics and licensing requirements are laws of general applicability, and federal courts usually adopt them through their own local rules. As far as I can tell, no state law seeks to impede access to counsel in federal courts more clearly and directly than S.B. 8.

Nevertheless, it is hard to predict whether a federal (or state) court would strike down 30.022 under 1654 or some other doctrine1 protecting the right to counsel in federal courts. In the criminal context, where the Sixth Amendment protects a right to appointed counsel for indigent defendant and to retained counsel of ones choice for others, see Powell v. Alabama, 287 U.S. 45, 53 (1932), the Supreme Court has upheld a federal statute prohibiting the use of forfeitable funds to retain defense counsel. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989). The four dissenting justices observed that the reluctance of any attorney to represent the defendant in the face of the forfeiture threat effectively strips the defendant of the right to retain counsel. Id. at 654 (Blackmun, J., dissenting). The majority nevertheless concluded that the government had a substantial property interest in the forfeitable funds. Id. at 627-28. That rationale would not apply to 30.022, of course, as the federal government has no competing interest in the Texas fee-shifting scheme.

Because the right to counsel at issue here is primarily statutory rather than constitutional2, the argument would be pre-emption rather than unconstitutionality under the Sixth Amendment. The most pertinent pre-emption doctrine is obstacle pre-emption, which applies when a state law imposes obstacles to the purposes and objectives of Congress. E.g., Hines v. Davidowitz, 312 U.S. 52, 67 (1941). In Felder v. Casey, 487 U.S. 131 (1988), for instance, the Court held that state-law requirements that prospective plaintiffs notify government officials before filing suit were pre-empted when applied to federal civil rights claims under 42 U.S.C. 1983. See also El-Tabech v. Clarke, 616 F.3d 834, 840 (8th Cir. 2010) (although state law establishing procedure for payment of federally awarded attorneys fees was not completely pre-empted, if state claims board rejected an attorneys fee award that specific executive or legislative action would almost surely be conflict preempted). Although these cases are not directly on point, it seems intuitive that a state law requiring lawyers to pay attorneys fees for unsuccessful federal claims filed in federal courts is a serious obstacle to the federal right to counsel. By all appearances, that is exactly what the Texas legislature intended it to be.

Whether the obstacle to retained counsel imposed by S.B. 8 would lead a federal (or state) court to strike it down is a novel question that may itself evade judicial resolution3. But the question deserves its day in court. Like the bounty cause of action that S.B. 8 creates against abortion providers or aiders and abettors, the fee-shifting cause of action against federal litigants and their lawyers is transportable to other states and other rights. The right to counsel in civil proceedings is not as prominent as the right to abortion, but it is an important right nonetheless, and federal courts should have the last word on whether states can impede the right through legislation like S.B. 8.

1A second basis for pre-emption might be the Texas laws incompatibility with 42 U.S.C. 1988, which allows reasonable attorneys fees to the prevailing party in actions to enforce provisions of the federal civil rights statutes, including 42 U.S.C. 1983. But 1988 does not allow recovery of fees from opposing counsel. Roadway Express, Inc. v. Piper, 447 U.S. 752, 761 (1980).

2Some courts hold that the right to retained counsel in civil cases is implicit in the due process clause. See, e.g., Morales, 975 F.2d at 1180; contra Kentucky W. Va. Gas Co. v. Pennsylvania Public Util. Commn, 837 F.2d 600, 618 (3d Cir. 1988). Like most rights, it is not absolute, and may be overridden for compelling reasons. See 975 F.2d at 1181.

3The bounty statute may fall before the fee-shifting provision is tested; the United States complaint against Texas, for instance, does not clearly challenge the fee-shifting provision. In addition, because the prevailing party can file the attorneys fee claim in a new case in state court, that claim might evade judicial review by federal courts. See Bill Johnsons Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983) (party had First Amendment right to file nonfrivolous claim in state court and NLRB could not order party do dismiss the claim before determination of its merits in state court); 28 U.S.C. 2283 (anti-injunction act). Nevertheless, state courts would have authority to consider the pre-emption argument, and the Supreme Court ultimately could decide the issue on discretionary review.

Read more:

Can Texas Force Lawyers to Pay the Prevailing Party's Legal Fees in Federal Litigation? - JD Supra

Last week, the U.S. Supreme Court issued its highly anticipated ruling in Mahanoy Area School District v. B. L., No. 20-255, (U.S. June 23, 2021), upholding students' free speech rights for the first time since 1969. In an 8-1 decision, the Court strongly reaffirmed the landmark case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and held the school could not punish a high school cheerleader's off-campus Snapchat message to friends.

Despite the vulgar nature of the message"Fuck school fuck softball fuck cheer fuck everything" with an image of the student and her friend with their middle fingers raisedthe Court found the teenager's critical opinion of school issues worthy of "robust First Amendment protections." Justice Breyer observed it "might be tempting to dismiss B. L.'s words as unworthy of robust First Amendment protections," but concluded "sometimes it is necessary to protect the superfluous in order to preserve the necessary." And he identified a key government interest the school administration apparently overlooked: to prepare students for citizenship "the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus." (emphasis added).

The opinion for the Court avoided creating a bright line rule concerning where the speech occurs. "Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus." Instead, the opinion identified "three features of off-campus speech that often, even if not always, distinguish schools' efforts to regulate that speech from their efforts to regulate on-campus speech."

First, the Court examined the right of the school in loco parentis, noting that "geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related, responsibility." Second, the Court held that "courts must be more skeptical of a school's efforts to regulate off-campus speech," noting that "political or religious speech that occurs outside school or a school program or activity" undoubtedly comes with "a heavy burden to justify intervention." Third, the Court reminded educational institutions that "America's public schools are the nurseries of democracy," which "only works if we protect the 'marketplace of ideas'" and "that protection must include the protection of unpopular ideas, for popular ideas have less need for protection."

Justice Breyer's opinion departed from the Third Circuit's reasoning, which had relied extensively on where the Snapchat message was typed and sentin other words, the physical location of the student and/or the student's use of "school-owned, -operated, or -supervised channels."1The U.S. Supreme Court, however, made clear that such explicit holdings were unnecessarythe cheerleader's off-campus, critical speech had not substantially disrupted or targeted school functions, and therefore "d[id] not meet Tinker's demanding standard."

Justice Alito wrote separately (with Justice Gorsuch joining) to clarify the majority's holding. He noted the enormous disparity in treatment that would result if the government could only punish public school students' speech, concluding that attending public schools cannot be conditioned on relinquishing constitutional rights. He asserted that "[i]f today's decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory."

Justice Thomas issued a lone dissent, echoing themes he first set forth in his concurring opinion in Morse v. Frederick, 551 U.S. 393, 422-33 (2007)a case involving a student's "Bong Hits 4 Jesus" sign at a school-sponsored event. Based on historical analysis and drawing largely on 19th century state court decisions, Justice Thomas concluded that public school students lack First Amendment rights and suggested he would reverse both Tinker and W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (where the Court held that public school students could not be compelled to salute the American flag and recite the Pledge of Allegiance).

Justice Alito directly addressed Justice Thomas's dissent on originalist grounds, noting the dated state court decisions are "of negligible value for present purposes." The concurrence explored the doctrine of in loco parentis upon which the dissent focused, and found it failed to explain the delegation of parental authority that occurs in American schools today. For "whatever [the student's] parents thought about what she did," the concurrence noted, "it is not reasonable to infer that they gave the school the authority to regulate her choice of language when she was off school premises and not engaged in any school activity."

It remains to be seen how the principles articulated by the Court will apply to future controversies involving off-campus speech and "whether or how ordinary First Amendment standards must give way off campus to a school's special need to prevent, e.g., substantial disruption of learning-related activities or the protection of those who make up school community." However, "to justify the prohibition of a particular expression of opinion," the school would have to show that "its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

Davis Wright Tremaine LLP filed an amicus brief in the Mahanoy case on behalf of Mary Beth and Joe Tinker, key litigants in the U.S. Supreme Court's landmark 1969 student-speech ruling Tinker v. Des Moines Independent Community School District.

1 See 964 F.3d 170, 189 (3d Cir. 2020) (holding "that Tinker does not apply to off-campus speechthat is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school's imprimatur").

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F--- school, f--- softball, f--- cheer, f--- everything, Except First Amendment Protections for Student Speech - JD Supra