Read: When the religious doctor refuses to treat you

The dissenters, led by Justice Ruth Bader Ginsburg, pointed out that the distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Courts attention, and wondered about religious employers who were offended by health coverage of vaccines, or equal pay for women, or medications derived from pigs, or the use of antidepressants. At the very least, there is a compelling interest in protecting access to contraceptives, which the Supreme Court has deemed a fundamental right.

In June 2020, the Court ruled in Our Lady of Guadalupe School v. Morrissey Berru that teachers at a Catholic school could not sue for employment discrimination. The two cases before the Court involved a teacher who had sued for disability discrimination after losing her job following a breast-cancer diagnosis and a teacher who had sued for age discrimination after being replaced by a younger instructor.

Previously, in Hosanna-Tabor Lutheran Evangelical Lutheran Church and School v. EEOC (2012), the Court said that a narrow exception protects religious organizations from being held liable for choices they make about their ministers, which traditionally have been considered exclusively ecclesiastical questions that the government should not second-guess. But now the Court has expanded that exception to all religious-school teachers, meaning that the schools can discriminate based on race, sex, religion, sexual orientation, age, and disability with impunity.

This reflects a Court that is likely to expand the ability of businesses to discriminate based on their owners religious beliefs. A few years ago, the Court considered in Masterpiece Cakeshop v. Colorado Civil Rights Commission whether a baker could refuse, on account of his religious beliefs, to design and bake a cake for a same-sex couple. This should be an easy decision: People should not be allowed to violate antidiscrimination laws because of religious beliefs, or any beliefs. For more than half a century, courts have consistently recognized that enforcing antidiscrimination laws is more important than protecting freedom to discriminate on account of religious beliefs. A person cannot invoke religious beliefs to refuse service or employment to Black people or women. Discrimination by sexual orientation is just as wrong. Although the justices in this case sidestepped the question of whether the free-exercise clause requires such an exemption, a number of other courts have ruled that compliance with general antidiscrimination laws might impose an impermissible burden on the free exercise of the owners religious beliefs, at least when the beliefs are Christian and the protected class includes gay and lesbian people. Moreover, the religious right has demanded that it is entitled to such exemptions.

See more here:

The Weaponization of the Free-Exercise Clause - The Atlantic

ROCHESTER, N.Y. (WROC) As protests continue over the death of Daniel Prude, the first amendment continues to be a topic of discussion. Freedom of speech and assembly in particular have been tested the past couple weeks.

Attorney Mike Burger said the Bill of Rights is at the core of constitutional rights given to each and every citizen of our country. But he said legally, these things can become murky.

Burger said exercising the rights protected under the first amendment is one of the few times citizens rights trump the government.

When people assemble and they want to protest, particularly here in Rochester which has a long tradition of this sort of activity, the government needs to stand shoulder to shoulder with them and protect those rights, said Burger.

However, he said there are circumstances where the government can override those rights but it needs compelling interest to do so.

It cant sweep broadly and say, well we dont want any unrest so were gonna have a curfew and keep everyone inside, that wouldnt be America anymore.

Protesters have said the police are taking a more aggressive path when they could be taking a more peaceful one. Burger said it becomes a grey area when theres violence on either side.

From the police side they may not know where a water bottle comes from, they may find that after a few episodes of violence that the entire crowd being there is making it impossible to locate the people who are engaging in a crime. It becomes a difficult question how far should you go? It seems on the nights where there has been less police interaction there have been fewer claims of violence, but is that correlation or causation?

He said theyre walking a fine line between security and freedom.

If were all shopping in Wegmans and a few people engage in shoplifting, grabbing everyone in Wegmans or pepper spraying the entire store is probably not the right reaction to that, unless we all seem to be acting in concert to help the shoplifters.

Burger said while the government has a responsibility to make sure the protests go smoothly, citizens have the right to free speech in many forms including yelling, screaming, and singing.

See the article here:

Attorney on first amendment rights of protesters: The government must protect these rights - RochesterFirst

This week, we examine one Ninth Circuit decision exploring the extent to which the deprivation of information and statutorily-conferred powers can satisfy Article IIIs injury-in-fact requirement, and a second declining to extend the Supreme Courts decision in Janus to former union-members asserting First Amendment right not to pay agreed-upon dues.

SOUTHCENTRAL FOUNDATION v. ANTHCThe Court holds that a board of directors alleged delegation of decision-making authority to an executive committee, and a confidentiality policy that allegedly restricted the flow of information to board members, sufficed to confer Article III standing under a statute entitling plaintiff to a voting representative on the board of directors.

Panel: Judges Gould, Bea, and Murguia, with Judge Murguia writing the opinion.

Key highlight: Because we conclude that Section 325 [of the Department of the Interior and Related Agencies Appropriations Act of 1998] conferred governance and participation rights to [plaintiff], which necessarily includes an entitlement to information necessary to effectively exercise those rights, we reverse the district courts dismissal of [plaintiff]s complaint for lack of Article III standing.

Background: Congress created the Alaska Native Tribal Health Consortium (the Consortium) under Section 325 of the Department of the Interior and Related Agencies Appropriation Act of 1998 to provide health services at the Alaska Native Medical Center in Anchorage, Alaska. Southcentral Foundation (Southcentral) is a nonprofit regional tribal health organization that provides health care to some 65,000 Alaska Natives as a member of the Consortium. Section 325 provides in relevant part that the Consortium shall be governed by a 15-member Board of Directors, which shall be composed of one representative of each of 13 regional tribal health organizations, including Southcentral, and two tribal representatives. The statute also provides that [e]ach member of the Board of Directors shall be entitled to cast one vote. Decisions of the Board of Directors shall be made by consensus whenever possible, and by majority vote in the event that no consensus can be reached.

Southcentral alleged that the Consortiums board, over Southcentrals objection, created an executive committee authorized to take actions without ratification by the full board. The executive committee then allegedly approved lucrative employment contracts for Consortium executives without disclosing the terms of those contracts to the full board. A few years later, the board also adopted a strict confidentiality policy that allegedly gave unidentified Consortium personnel absolute discretion to restrict information from being shared even with the Board of Directors, with a rebuttable presumption against disclosure. Southcentral sought declaratory relief that the Consortium violated Section 325 when it: (1) formed the Executive Committee and delegated the authority of the full board, and (2) erected informational barriers to board member decision-making. The district court dismissed the suit, concluding that Southcentral failed to allege an injury in fact sufficient to confer Article III standing.

Result: The Ninth Circuit reversed. The Court began by laying out the now-familiar requirements for Article III injury-in-fact: to confer standing, an injury must be particularized (affect[ing] the plaintiff in a personal and individual way) and concrete (de facto; that is, it must actually exist.). Applying that standard, the Court first addressed Southcentrals executive committee claim. The statutory language conferring governance and participation rights on representatives of each member health organization made clear that Southcentrals alleged injury was particularized and concrete, the Court reasoned, because the creation of the executive committee deprived Southcentral of precisely those express statutory powers. The Court was not convinced by the Consortiums argument that Section 325s participation rights only applied to providing health care, not management decisions, or its argument that Section 325 grants governance rights only to individual directors, rather than the organizations they represent. Because Congress endowed each specified regional health entity with the right to have a representative on the Board that stands in the shoes of the designating entity by acting on its behalf, Southcentral had alleged sufficient injury to its statutory decision-making power.

As for the confidentiality policy, the Court reached a similar conclusion. Because the Consortiums policy allegedly restricted information necessary to make decisions called for by the statute, the Court said Southcentral had adequately alleged Article III injury. In so holding, the Court rejected the Consortiums argument that to satisfy Article III, an alleged informational injury must stem from an express statutory right to receive such information. Making informed decisions requires having information, the Court reasoned. Because Southcentrals informational injury was inextricably tied to its interest in exercising its governance and participation rights under the statute, the Court concluded that Southcentral had alleged sufficient injury-in-fact. The case was remanded to the trial court for further proceedings.

BELGAU v. INSLEEThe Court holds that former union members who had agreed to allow their employer, the State of Washington, to deduct union dues even if they terminated their union membership had no First Amendment claim when that agreement was enforced.

Panel: Judges McKeown, Christen, and Harpool (W.D. Mo.), with Judge McKeown writing the opinion.

Key Highlight: We join the swelling chorus of courts recognizing that Janus does not extend a First Amendment right to avoid paying union dues.

Background: Plaintiffs were Washington state employees who had joined a union (WSFE) shortly after starting work. They had signed contracts allowing the state to deduct union dues from their paychecks. They subsequently agreed to revised contracts making their consent to the deduction of such dues irrevocable for one year.

In Janus v. American Federation of State, County, and Muni Employees, 138 S. Ct. 2448 (2018), the Supreme Court overturned longstanding precedent and held that public employers cannot automatically deduct union fees from the paycheck of nonunion employees because such deductions compel nonmembers to subsidize union speech. After Janus was issued, the plaintiffs notified their union that they no longer wanted to be members, and the union terminated their memberships. The state, however, continued to deduct their union dues until the irrevocable one-year terms for dues payment had expired.

In response, the plaintiffs filed a putative class action against various state officials and the union, pressing First Amendment claims. The district court granted summary judgment to the defendants.

Result: The Ninth Circuit affirmed. The Court began by holding that the plaintiffs constitutional claims against the union failed for lack of state action. First, the Court reasoned, the plaintiffs could not establish that the claimed constitutional deprivation resulted from the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person from whom the State is responsible; rather, the source of their harm was their contract with the union, not any state statute or policy. Second, and in any event, the plaintiffs also could not establish that the party charged with the deprivation could be described in all fairness as a state actor: the union was plainly a private entity, and it had not been coerced or overseen by the state in shaping or entering the challenged agreements, nor had it acted in concert with the state. As the Court declared, Providing a machinery for implement the private agreement by performing an administrative task does not render Washington and the [union] joint actors.

The Court next turned to the plaintiffs claims against the state, holding that these likewise failed. The Court first addressed whether it had jurisdiction to consider this issue, given that the plaintiffs had sought only prospective relief and the state was no longer deducting fees from their paychecks. It determined that these claims satisfied the capable of repetition yet evading review exception to mootness, as the one-year period of fees-deductions was too short to allow full litigation, and other similarly situated employees might confront the same issue.

On the merits, the Court rejected the plaintiffs contention that the state had violated their First Amendment rights. As the Court explained, plaintiffs complained of obligations that were self-imposed rather than imposed by the State, and the First Amendment provides [no] right to disregard promises that would otherwise be enforced under state law. Although Janus had condemned the practice of automatically deducting agency fees from nonmembers who were not asked and not required to consent before the fees are deducted, the plaintiffs here had experienced no such compulsion. They had voluntarily joined the union and accepted the benefits of membership, and thus had agreed to bear the financial burdens of membership. The First Amendment, the Court held, does not prevent the State from honoring that agreement.

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This Week at The Ninth: Informational Injury and Union Dues - JD Supra

When AT&T moved to buy CNNs parent company, Time Warner, in 2016, Mr. Trump began attacking his old friend. He did it in public, on Twitter. He also raised Mr. Zucker in a private meeting with AT&Ts then-C.E.O., Randall Stephenson, in early 2017, a comment that hasnt been previously reported.

The presidents campaign against Mr. Zucker was interpreted reasonably by Mr. Zucker as an attempt to get him fired as a condition of the merger, according to three people who spoke to AT&T and Time Warner executives at the time. But Time Warner stood by him, and Mr. Trumps Justice Department sued to stop the merger. When Mr. Stephenson finally took control of the company in 2018, he didnt fire the CNN president.

Mr. Mahlers piece noted that CNN had become more focused on American politics, an unending loop of dramatic moments, conflicts and confrontations in other words, it had become Trumpier. He also noted Mr. Zuckers strange symbiosis with Mr. Trump. But that summer, CNN fired Jeffrey Lord, a genial, silver-haired former aide to Ronald Reagan who had been Mr. Trumps most stalwart defender on the network.

And by the end of that year, the lure of ratings pulled the network in a new direction: resistance. Mr. Trumps own political theater featured regular televised confrontations with CNNs White House correspondent, Jim Acosta, a different kind of win-win. But if Mr. Trump and Mr. Zucker sometimes still seemed to be winking, their audiences arent in on the joke, and the deadly serious stakes became clear when a deranged Trump supporter mailed a bomb to CNNs New York headquarters in October 2018.

Mr. Zucker didnt respond through a spokeswoman when I asked again, five years later, whether he now regrets his role in Mr. Trumps career.

But this run, too, may be coming to an end. When I spoke to former NBC colleagues of Mr. Zucker about his tenure there, the show they brought up most often wasnt The Apprentice; it was Fear Factor, in which contestants were tossed in their underwear into a pit full of rats, among other grotesque stunts. USA Today described it as perhaps the most vile program ever to air on a major network.

Fear Factor didnt age well. The show lasted six seasons, and a revival was cut short by public backlash to a stunt in which competing sets of identical twins drank donkey semen. The public got tired of it (and that donkey stunt didnt air).

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Jeff Zucker Helped Create Donald Trump. That Show May Be Ending. - The New York Times

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WarrenWhat was expected to be a protest to defenda Black familytargeted with racially motivated attacks on Saturday ended up as a standoff between Black Lives Matter proponents and Donald Trump supporters.

Activistgroup Detroit Will Breathe, as well as the South Warren Alliance for Radical Movement, organized a protest for the Halls, who werevictim ofwhat Warren police say were "hate crimes" earlier this month.

During the same time, a Back the Blue rally was held across the street on Hoover Roadwith people holding Trump 2020 flags.

A Detroit Will Breathe protester argues with a Trump supporter before the March Against Racism in Warren on Sept. 19, 2020. The march in Warren occurred in response to the city called hate crimes against residents Candace Hall, her husband Eddie and their two children.(Photo: Nic Antaya, Special to The Detroit News)

"What does Trump have to do with this... because of what happened to us, why are you here doing that? If anything we should be supporting each other,"father and husband Eddie Hall said.

Tensions were high even before the march began. Profanities were yelled from both sides as protesters came face to face with each other.

At one point, a woman who Tristan Taylor, aDetroit Will Breathe organizer, said was not part of the group was walking on the Trump supporter's side and got in an altercation with supporters.

The woman was holding onto a flag while multiple men tried to take it out of her hands, pulling the woman around on the ground.

"There's a lot of things that's going on that are trying to blame each side because they want us in a civil war... we don't want to fight, we want to unite," said Ellie Seals, a Detroit woman who held a flag with the Trump supporters.

A Trump supporter improperly wears a mask while counter protestering the March Against Racism in Warren on Sept. 19, 2020. The march in Warren occurred in response to the city called hate crimes against residents Candace Hall, her husband Eddie and their two children.(Photo: Nic Antaya, Special to The Detroit News)

Warren, Michigan's third largest city by population,has long played a significant role in Metro Detroit's racial landscape. Bordering Detroit, it resisted integrated housinginto the 1970s. Among the last inner-ring suburbs to integrate, less than 3% of its population in 2000 was Black. By 2019, that population had grown to nearly 19%.

Significantly during this election season, the blue collar suburb liesin Macomb County, which Trump won by about 48,000 votes in 2016, and ishome to many so-called "Reagan Democrats," traditional Democratic voters who supported Ronald Reagan and similarly powered Trump to a narrow victory in Michigan.

As the march went on throughout main roads and residential streets in Warren on Saturday, several smaller disputes occurred. Drivers argued with protesters to get out of the streets, although the march had a police escort from state police and Warren police.

Residents came out of their homes as protesters walked by to continuously chant "Trump," to yell for demonstrators to get of their grass and to tell people to take off their masks.

"It's been uncomfortable and a little bit unsettling and kind of tense. We feel some type of way about what happened and knowing that racism is that close to home where I live is a little bit uncomfortable," said Duane Daniels, a 22-year-old Warren resident.

Protesters marched for over two hours and ended with organizers calling for a public hearing in Warren.

"We need Mayor Fouts and all the city officials in Warren to take responsibility for the perpetrating, racist policies that are created... there has to be a spectacular amount of racism that you have to have in your body to try and demonstrate against a rally defending a Black family whose house got shot up," said Taylor.

Warren Police Commissioner Bill Dwyer confirmed an altercation happened between the two groups, but the issue was resolved quickly with no injuries and no arrests.

"Overall, I thoughtit was a very peaceful protest, which obviously under the First Amendment they have that right," he said. "And our task is to maintain a safe environment for all."

About 250 people participated in the march with Detroit Will Breathe, Dwyer said.

At the end of the march, demonstrators heard from a protester that came from Portland, and the Hall family expressed appreciation for the support.

A Trump supporter yells at Detroit Will Breathe protesters before the March Against Racism in Warren on Sept. 19, 2020. The march in Warren occurred in response to the city called hate crimes against residents Candace Hall, her husband Eddie and their two children.(Photo: Nic Antaya, Special to The Detroit News)

"It's not just about me and my husband or our children but it's about each and every one of us so that we can live neighbor to neighbor... we don't believe in hate or violence or any of that, we just want to be able to live peacefully among our neighbors," said wife and mother Candace Hall.

Between September7-9, Candace and Eddie Hall's home was attacked. On Sept. 7 around 10:30 p.m. someone fired shots at the home,although the Halls said at first they thought it was fireworks.

The following Wednesday, around the same time, someone threw a large rock through the front window of the home, which had a Black Lives Matter sign. Someone also slashed the tires on the Halls car, and used a marker to draw a swastika on the vehicle, along with the inscriptions "terrorist Black Lives Matter," "not welcome," and "get the f--- out," police said.

The next day, police say they recovered six 9 mm shell casings from the Halls' home from a shooting that occurredabout 11:30 p.m. Police also have grainy video of a man slinking around the side of the Halls' house.

On Saturday, Dwyersaid there was a second incident last week, in the same neighborhood, that was believed to have been committed by the same suspect. In that case, the garage door of a home with Biden signs on the lawn was graffitied with the word "pedofile" and a rock was thrown through the window. The homeowner is white.

Dwyer said that incident wasn't racially motivated but rather appeared to be "provoked by political signs."

Dwyer said finding the man is the department's number one priority.

"We're putting all our resources into that," he said. "I feel very confident that person will be arrested very soon."

Detectives said the suspect was about 5' 8", and between 20-25 years old. He appeared to be muscular, but police said they couldn't determine his race. Because he fled on foot after each incident, Dwyer said police believe he lives in the neighborhood.

Dwyer said police are offering a $3,000 reward for information leading to the suspect's arrest. He added his detectives have alerted the FBI about the incidents, and that he plans to seek federal charges against the man once he's arrested.

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Protest for Black family becomes clash between Detroit Will Breathe and Trump supporters - The Detroit News

Protests in Rochester, NY continued this week for the eighth day after a federal lawsuit revealed police involvement in the death of Daniel Prude in March along with a subsequent alleged cover up of the incident. The police chief and members of police department leadership have since resigned.

Tyler Valeska is a fellow at the Cornell University Law School First Amendment Clinic, which handles litigation, advocacy and policy matters related to First Amendment cases for news outlets, journalists, researchers, and scholars.

Bio: https://www.lawschool.cornell.edu/faculty/bio_clinical_fellows.cfm?id=1049

Valeska says:

The right to peaceful assembly is enshrined in our First Amendment for good reason: democracy requires that the people be able to gather in opposition to unjust governmental activity. The recent protests in Rochester are a prime example of this principle in action.

The protests have been largely nonviolent, with some exceptions, and have forcefully voiced the communitys outrage with how Daniel Prude was killed. Protestors are constitutionally protected in their expressive demonstrations and cannot be targeted based on the content of that activity. Police should not engage in any counter-demonstration efforts that unnecessarily chill protestors speech, such as firing projectiles into crowds indiscriminately or without justification. And police should refrain from targeting journalists covering the protests in any way. Even brief detainments of journalists, as have been reported, can undermine the critical newsgathering function the press plays.

Were very much in a broader moment of increased protest activity, both nationally and globally. Weve seen an increase of over 10% in the number of protests worldwide in the last decade, and domestically weve had over 25,000 protests attended by over 13.5 million people since President Trumps inauguration. That comprises big and small cities and underscores the criticality of First Amendment protections in an era of mass political demonstrations.

Excerpt from:

First Amendment rights on display in Rochester protests - Newswise

The First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

If you are a regular reader of mine, you have already figured out that I like to write about former students and the many things I learned from them. Back in the early 1980s, I taught in a small country school. It was culturally diverse and mostly poor. I had a very memorable student who dropped out when he turned 16 named Charlie. By the way he dressed, Charlie had been born in the wrong decade. He wore neatly pressed khaki pants, plaid cotton shirts, and brown leather shoes. His hair was short, brushed to the side, and had hair cream on it to keep it slicked down tight. He was mostly silent in class, very respectful, and his classwork was punctual and thorough.

There was something unusual about Charlie besides his dress and quiet manner. When we would say the Pledge of Allegiance in assemblies, I noticed that Charlie would stay seated and silent. I was so surprised because he was one of the most respectful students I had ever had. A few days after noticing this, I pulled him aside after class and asked him about it. In his usual quiet way, he said that his religious beliefs did not allow him to say the pledge or to stand for the National Anthem. He said his church believed it to be a form of idolatry.

I was totally astonished and asked him what church he attended. He said he was a Jehovahs Witness, as were most of his family. I thanked him for the explanation and he went on his way. How had I lived in this country my whole life and had never heard this?

I occasionally heard other students talk about Charlie and these differences. I heard them mention that his family did not celebrate Christmas, either. The students discussing this were not being rude or mean, they were just stating a fact. They thought it was a little odd, but didnt call him names, say he was unpatriotic and hated America, or anything of the sort. They accepted him for who he was and what he believed. When Charlie turned 16, he dropped out of school to take the GED. He turned his books in and told me his plan. He said he was leaving school because he wanted to help his family in their carpentry business, and thanked me for being his teacher. I had no doubt he would pass his GED with flying colors; he was an exceptionally smart young man.

His story resonates with me because even though Charlie did not do what was expected, no one vilified him for it. His classmates accepted the fact that his beliefs told him not to recite the Pledge of Allegiance or stand for the National Anthem. They respected his decision and didnt give him any grief for it, which is pretty remarkable when you consider how mean some high school students can be. It makes me wonder how we got to where we are today, when someone taking a knee is immediately regarded by many with disdain and hatred. Whether or not I agree with those who choose to kneel during the National Anthem is besides the point; my opinion of such doesnt really matter. It is their First Amendment right. In fact, if you insist that every single person must stand because you think it is the right thing to do, that smacks of totalitarianism, not democracy.

It is saddening that we are at a place in our country where we think there is only one true point of view, one valid stance, or one right way to live. This goes for both those who lean right or left we stopped listening to and trying to understand one another a long time ago. As a former counselor, I know when someones behavior is questionable, rather than just vilify the behavior, it is of utmost importance to ask why that behavior is happening. Once one can decipher the reason behind something, the behavior often makes more sense. This holds true whether we are talking about a fussy baby or a rebellious twenty-something.

Our founding fathers understood that this country would be diverse and should be a place where a citizen has the freedom to think and express themselves, as long as it didnt bring physical harm to anyone. We are the most speech-protected and expression-protected country in the world. It is a freedom that our soldiers have fought and died for. If we as a country can ever hope to get past this current time of extreme polarization, we must go back to the first amendment, remember what it says, and begin listening to each other.

Even when its hard. Even when it is the opposite of what we believe. Our countrys health depends on it.

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Charlie and the First Amendment | Columns | theadanews.com - Theadanews

The idea that conservative free speech is under attack has been bandied about a lot these days. You recently published a few letters from readers who argue that their First Amendment rights are being violated and would be further threatened by a Biden presidency.

This is confusing, especially as these letters are coming from Staten Islanders. Really? Where I live, I cant walk or drive a block without seeing varied displays of support for Trump (and Malliotakis) on homes and lawns, not to mention the Trump-a-Palooza that operates outside the Walgreens on Arthur Kill Road and Ridgewood Avenue on a regular basis.

Trump supporters are free to fly any flag they like, and many, many do. I support that freedom because I support the First Amendment. To say conservative free speech is being threatened is not only wrong, its based on a misunderstanding of the First Amendment. Until Congress passes a law that allows government agents to come knocking on your door and demand that you take down your Trump flag, your freedom of expression remains completely protected.

If you feel that you will be judged by others in your classrooms, workplaces and communities for voicing support of one candidate or another, thats unfortunate, but completely legal. People are allowed to disagree with you; it doesnt mean theyre threatening your free speech.

As I see it, the members of the so-called silent majority on Staten Island have never been very silent.

(Anthony Bongiorno is an Annadale resident.)

See the article here:

Silent majority hasnt been silenced (letter to the editor) - SILive.com

Recent political protests and associated gun violence in Wisconsin have put a spotlight on vigilantism and the rights of Americans under the Constitution to both peaceably protest and bear arms freely.

These topics, inextricably linked these days, were the focus of a Tuesday discussion by two Duke law scholars who took part in a virtual media briefing with journalists.

Watch the briefing on YouTube.

Here are excerpts:

ON GOVERNMENT POWER UNDER THE FIRST AMENDMENT

Nicole Ligon, First Amendment expert

The government has the authority to make and enforce rules for public health, safety, welfare such as the shutdown orders earlier this year. At the same time, the First Amendment protects peoples rights to free speech and to peaceably assemble. But very few constitutional rights are absolute.

The government is able to regulate the time, place and manner of speech in public forums as long as the restriction is narrowly focused to serve a significant government interest.

ON RECENT PERVASIVE VIGILANTISM

Darrell Miller, law professor

We as a sort of society have somehow drifted to a position where persons can cross state boundaries, sometimes heavily armed, appear on the streets again heavily armed, and theres very little that can happen beforehand in terms of an ability to stop it, with sometimes violent and calamitous results.

We dont have hard statistical data on this, but it should be noted that this is quite in contrast to absolutely innocuous events that turn out very, very badly with the deaths of young black men in America. Tamir Rice in Cleveland wasnt even a teenager, he was a young boy out on a playground playing with a toy gun. The police rode up and shot him dead.

It seems like theres two trigger fingers. Theres the trigger finger for African-Americans with guns and theres the trigger finger for whites with guns.

ON INTERPRETING THE SECOND AMENDMENT

Darrell Miller

Were operating in an environment in which the constitutional law is still not very clear as a matter of judicial rulings. Lots of people are making claims about what the Second Amendment does or does not permit in a highly tense environment.

Its always important to remember the Second Amendment is a floor, not a ceiling. It does not say whether a state, for example, can allow more guns in more places. That becomes a policy matter. There are tradeoffs. If you have lots of people in a highly charged political environment, armed, it makes the ordinary, peaceful process of politics much more difficult.

ON IMPOSING CURFEW ORDERS UNEQUALLY

Nicole Ligon

To the extent that curfew orders are being differentially enforced based on viewpoint, that is viewpoint discrimination. That is not going to be permitted by the First Amendment.

Youre not going to be able to differentially apply a curfew order to someone based on viewpoint. Youre not going to be able to say Black Lives Matter protesters cant be out past a certain time, but pro-police protester can.

ON USE OF LEGAL OBSERVERS DURING PROTESTS

Nicole Ligon

Legal observers are not unique to the US. They exist all over the world and frequently document police interactions with citizens. They serve a check function. The idea is that if they are there, maybe then there will be less biased reactions, there will be more clean arrests.

We have so many examples of important protests that have happened. Legal observers help to insure that protests occur in a safer way but also that everything is being documented and reported.

They act as these neutral third-party observers. Theres a really important role they serve for the commission of justice.

These are really critical roles, and theyre good for everyone.

ARE THE FIRST AND SECOND AMENDMENTS INCOMPATIBLE WITH EACH OTHER?

Darrell Miller

I think there is at least a challenge with trying to reconcile these two things. The right in the Second Amendment is a right to keep and bear arms so people who think you have a right to have guns anywhere you happen to be, focus on the bear part. The right in the First Amendment is the right to peaceably assemble. You have the right to assemble in a way that does not disturb the peace.

The fundamental challenge is trying to square these two things where to some people, the mere presence of lethal weaponry in private hands at a protest terrifies and therefore is a potential challenge to the peace.

In a densely populated urban area where people are showing up with firearms, the norms and behaviors and expectations and the perceptions of what is happening are going to be totally different.

Do you fear going to a place to register your political views if you think there are going to be armed private individuals there?

Nicole Ligon

Its very likely that there is some element of chilling that will occur if you have protesters that are going to be met with counter-protesters who are bearing arms, brandishing weapons.

The question is not so much that these people have weapons, its why do they have them. Is it necessary to their speech for a counter-protester to be holding that weapon?

There is this element of chilling that could definitely occur. Thats something that really needs to be examined and looked at.

ON WHAT PRIVATE MILITIAS ARE ALLOWED TO DO IN PUBLIC

Darrell Miller

It really depends on what state youre in. Some states have a long track record of actually forbidding this kind of activity. For example, the state of Washington in the early part of the 20th century outlawed private organizations of armed men in part because what had happened was big moneyed interests were using private military to engage in labor suppression.

The bigger challenge here is that in some ways, a combination of beliefs about the Second Amendment and what it stands for, fairly generous laws about open carry and Stand Your Ground, and self-defense, and the low, low barriers to coordinating lots and lots of people through social media has made it plausible to have many, many armed individuals show up in the public square and not really be members of a private militia as much as a group of individuals with firearms that show up. It has the same, potentially pernicious effect in terms of risk of injury and risk of confrontation.

We have to understand that the tolerance or the norm of having your political position in the public square supported by arms is not something we think of in a well-ordered society. This is something you see in other countries that have fragile democracies.

ON WHAT CAN BE DONE TO IMPROVE THE SITUATION RIGHT NOW

Nicole Ligon

A greater appreciation for viewpoint diversity. These protests again are so incredibly personal, but I do wish as a society we werent so quick to say, I know what that protest is about and I dont support those people.

I think were doing a lot of blending of things we dont like and were conflating them with messages we decide offhand we dont agree with.

It has been really disappointing to see how some people talk about these Black Lives Matter protests. I really wish we did a better job of understanding why are these viewpoints necessary to be heard, where people are coming from and being able to differentiate who is really involved in a moment and who is opportunistically engaging in something that is completely separate.

Darrell Miller

Martin Luther King Jr. and the Student Nonviolent Coordinating Committee in its early years recognized violence in the public square, or threats of violence, has the damaging feature of undermining the message youre trying to send. If youre trying to send a message that police brutality is unacceptable, it undermines your message to engage in violence or threat of violence.

If youre concerned that the reopen (movement) is not happening fast enough, it feels like it undermines your moral position to not engage with others as equal citizens but to threaten violence in order to persuade others about your political position.

Faculty Participants

Nicole LigonNicole Ligon is a lecturing fellow and the supervising attorney of the First Amendment Clinic at Duke Law School, where she teaches First Amendment law. Before coming to Duke, she litigated First Amendment issues in private practice.

Darrell MillerDarrell Miller is a law professor who specializes incivil rights, constitutional law, civil procedure and state and local government law at Duke University. He also co-directs theCenter for Firearms Lawat Duke Law School. His scholarship on the Second Amendment has been cited by the U.S. Supreme Court.

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Duke experts on a variety of topics related the election and politics can be found here.

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How First and Second Amendments Apply in Protests - Duke Today

White House press secretary Kayleigh McEnany on Wednesday defended President Donald Trump's crowded rallies that contradict local COVID-19 rules and his own administration's health guidance -- saying supporters are exercising their First Amendment rights.

She argued there is a double-standard when it comes to allowing crowds at protests -- hours before the Trump campaign announced airport hangar rallies in Nevada planned for this weekend have been cancelled.

After touting the president's coronavirus response in North Carolina, a reporter asked McEnany at an afternoon White House briefing why the president chose to host a rally there with thousands of people, many not wearing masks, on Tuesday night when the state has limited its outdoor gatherings to 50 people and mandated masks in public.

"People have a First Amendment right if they so choose to show up and express their political opinion in the form of a peaceful protest which is what the president has held and there is a real double standard here," McEnany said.

White House Press Secretary Kayleigh McEnany speaks during a briefing in the Brady Briefing Room of the White House in Washington, D.C. on Sept. 9, 2020.

"CNN had on a guest, apparently a doctor, Rob Davidson, who said, 'Now, true, there are social distancing issues with regard to the protests around the country. However, this is a public health crisis. They are marching against systemic racism.' So if you're allowed to march in aggregate in those protests, you are also allowed to show up at a political rally. You have a First Amendment right in this country," she continued.

Shortly after the briefing, the Trump campaign announced its airport hangar rallies scheduled in Nevada this weekend had been cancelled, which presumably would have flouted the state's COVID-19 restrictions limiting public gatherings to 50 people, and said that Trump would instead still hold other events in the state.

The Trump campaign said 15,000 supporters showed up at its airport-hanger rally on Tuesday night, and most attendees were packed together and not wearing masks, despite the state's restrictions that outdoor gathering shouldn't exceed 50 persons.

The White House coronavirus task force recently identified North Carolina as having the 18th highest rate of cases in the U.S. and recommended enforced social distancing and mask mandates -- but McEnany vehemently defended the gathering on Wednesday.

"If people want to show up and express their political views, that's their choice to do so. We hand out masks, we encourage the individuals to wear those masks. A lot of people did, I was in North Carolina last night and saw it. We give out hand sanitizer. But at the end of the day, if you want to join a peaceful protest you can do so," she said.

Fans cheer during a Make America Great Again Rally for President Trump at the Smith Reynolds Regional Airport in Winston-Salem, NC., Sept. 8, 2020.

The government's top expert on infectious diseases, Dr. Anthony Fauci, in an interview with CBS Wednesday was asked if it was frustrating to see thousands of people packed in at Trump's campaign rallies, with no social distancing and few masks -- and replied "yes."

"Well, yes, it is. And I've said that often. That situation is -- we want to set an example, because we know, we know that when you do four or five typical kind of public health measures -- masks, physical distance, avoiding crowds, making sure you do most things outdoors versus indoors - those are the kind of things that turn around surges and also prevent us from getting surges. So I certainly would like to see a universal wearing of masks," Fauci said.

Trump on Tuesday night also accused the state's Democratic Gov. Roy Cooper, who is up for reelection, of imposing coronavirus restrictions to hurt Trump's re-election chances and urged North Carolinians to vote instead for the Republican Lt. Gov. Dan Forest.

"Your state should be open. It should be open," Trump told an enthusiastic crowd in Winston-Salem.

Supporters cheer as U.S. President Donald Trump speaks during a campaign event at Smith Reynolds Regional Airport in Winston-Salem, N.C., Sept. 8, 2020.

The president was scheduled to hold airport rallies in Reno and Las Vegas this weekend but both were cancelled, the campaign announced Wednesday afternoon.

Trump 2020 campaign Nevada co-chair Adam Paul Laxalt said in a tweet it was the Nevada governor who cancelled the rallies, in a tweet calling the move "outrageous" and "unprecedented" -- but the state's governor said Wednesday his office still hadn't received any planning information from the campaign.

Trump 2020 communications director Tim Murtaugh said in a statement that Trump will still travel to Nevada on Saturday and Sunday.

Nevada Gov. Steve Sisolak earlier Wednesday tweeted that his office has "had no involvement or communication with the event organizers or potential hosts regarding the proposed campaign events advertised by the Trump campaign" but suggested a massive rally like the one seen in North Carolina would also not comply with his state's COVID-19 restrictions put in place because of White House guidance.

"Current statewide emergency directives include mandatory face coverings, limitations on public and private gatherings to no more than 50 people, and other measures to mitigate the spread of COVID-19," Sisolak wrote.

"The Nevada-specific White House recommendations have consistently included recommendations to limit the size of gatherings for weeks now," he added.

ABC News' Ben Gittleson, Jordyn Phelps, Will Steakin, Justin Gomez, Terrance Smith, and Soo Rin Kim contributed to this report.

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White House cites 1st Amendment in defending Trump rallies that flout COVID restrictions - ABC News